Queensland Building Services Authority v Fenwick (No 2) - [2012] QCATA 200

CITATION:

Queensland Building Services Authority v Fenwick (No 2) [2012] QCATA 200

PARTIES:

Queensland Building Services Authority
(Applicant/Appellant)

Don Charles Fenwick

(Respondent)

APPLICATION NUMBER:

APL069-11

MATTER TYPE:

Appeals

HEARING DATE:

On the paper

HEARD AT:

Brisbane

DECISION OF:

Richard Oliver, Senior Member

Dr Bridget Cullen, Member

DELIVERED ON:

16 October 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

[1] The QBSA must pay Mr Fenwick’s costs of and incidental to the application for leave to appeal or appeal on a standard basis on the District Court scale as might be agreed between the parties.

[2] Should the parties fail to agree on costs then Mr Fenwick must file in the Tribunal and give to the Authority a short form assessment of costs prepared by a costs assessor by 30 November 2012.

[3] The application for costs will be listed for hearing on a date to be advised to the parties for the Tribunal to fix the amount of costs payable to the respondent.

CATCHWORDS:

Costs – Queensland Building Services Authority Home Warranty Scheme – Application to review decision to reject homeowner’s claim – homeowner successful – QBSA entirely unsuccessful – application by homeowner for costs of the appeal

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102
Queensland Building Services Authority Act 1991, s 77
Commercial and Consumer Tribunal Act 2003, s 142

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Tamawood Limited v Paans [2005] QCA 111

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

This matter involved the review of a decision made by the QBSA refusing to pay Mr Fenwick the amount of $176,563.00 from the Queensland Home Warranty Scheme operated by the QBSA, after Mr Fenwick’s builder failed to complete building works at Mr Fenwick’s home and went into liquidation. Member Cotterell found in favour of Mr Fenwick, and ordered that the QBSA pay the amount sought to Mr Fenwick. In relation to costs, Member Cotterell ordered that the QBSA pay Mr Fenwick’s costs from 23 July 2008 until 19 May 2009 on a standard basis and pay indemnity costs for the period from 19 May 2009 onward, using the District Court Scale as agreed or as assessed.
The QBSA sought leave to appeal from the learned Member’s decision, and were subsequently granted leave for the limited purpose of addressing a mathematical error in the calculation of the amount the Tribunal determined was to be paid by the Statutory Insurance Fund to Mr Fenwick. In all other grounds, the QBSA were wholly unsuccessful in their appeal.
The application now before the Tribunal is in relation to costs. The Tribunal has received submissions from both the QBSA and Mr Fenwick.
With respect to the $11,000.00 mathematical error for which leave was granted, this mistake was conceded by Mr Fenwick. For this reason, I cannot see a basis upon which the granting…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2012] QCATA 200
Decision Date: 16 October 2012

CaseChat Overview and Summary

In the matter of Queensland Building Services Authority v Fenwick (No 2), the Queensland Civil and Administrative Tribunal (QCAT) considered an application by the homeowner for costs following a successful appeal against the Queensland Building Services Authority’s (QBSA) decision to reject a claim under the Home Warranty Scheme. The homeowner, Mr Fenwick, had initially appealed to QCAT against QBSA's decision, which was subsequently found in his favour. The QBSA, having been entirely unsuccessful, was now the subject of an application by Mr Fenwick for the costs of the appeal.

The central legal issue before the Tribunal was whether Mr Fenwick was entitled to an order for costs from QBSA in light of his successful appeal. The Tribunal had to consider the principles of costs in such matters, particularly focusing on the standard basis for costs and whether there were any exceptional circumstances that would justify an award on a higher basis. Additionally, the Tribunal needed to determine the appropriate scale for assessing the costs if the parties could not agree on the amount.

The Tribunal concluded that Mr Fenwick was entitled to his costs of and incidental to the application for leave to appeal or appeal on a standard basis. The Tribunal directed that the parties were to agree on the scale and amount of costs or, failing agreement, Mr Fenwick was to file a short form assessment of costs by a costs assessor by a specified date. The application for costs was to be listed for hearing to allow the Tribunal to fix the amount of costs payable to Mr Fenwick. The decision emphasised the importance of the statutory framework governing costs in such administrative appeals.

The orders made by the Tribunal included a requirement for the QBSA to pay Mr Fenwick’s costs on a standard basis, with specific timelines for agreement on the costs or the filing of a costs assessment. The Tribunal also set a date for a hearing to determine the precise amount of costs to be awarded to Mr Fenwick.

Orders

Orders of the court

[1] The QBSA must pay Mr Fenwick’s costs of and incidental to the application for leave to appeal or appeal on a standard basis on the District Court scale as might be agreed between the parties.

[2] Should the parties fail to agree on costs then Mr Fenwick must file in the Tribunal and give to the Authority a short form assessment of costs prepared by a costs assessor by 30 November 2012.

[3] The application for costs will be listed for hearing on a date to be advised to the parties for the Tribunal to fix the amount of costs payable to the respondent.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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