Queensland Building Services Authority v Fenwick (No 2)

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.