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Queensland Building Services Authority v Johnston

Queensland Building Services Authority v Johnston

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Case Copied 23 September 2011 15 min read

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CITATION:

Queensland Building Services Authority v Johnston [2011] QCATA 265

PARTIES:	Queensland Building Services Authority (Applicant/Appellant)
v
Mr Brian Johnston (Respondent)

APPLICATION NUMBER:

APL241-10

MATTER TYPE:

Appeals

HEARING DATE:

On the papers

HEARD AT:

Brisbane

DECISION OF:

Judge Fleur Kingham, Deputy President
Ms Sandra G Deane, Member

DELIVERED ON:

23 September 2011

DELIVERED AT:

Brisbane

ORDERS MADE:

1. Leave to appeal granted.

2. Appeal allowed and the order dismissing the application for costs is set aside.

3. The application for costs is dismissed.

CATCHWORDS:

APPEAL – LEAVE TO APPEAL – Costs – leave granted – erroneous exercise of discretion – error of law – application for costs dismissed

Commercial and Consumer Tribunal Act 2003, ss 70, 71, 142
Queensland Building Services Authority Act 1991, s 56AD
Queensland Civil and Administrative Tribunal Act 2009, ss 42(3)(a)(iii), 48(1), 100,142(3), 146, 245, 256, 271

Queensland Civil and Administrative Tribunal Rules 2009, r 86

Adam P Brown Male Fashions Pty Ltd v Philip Morris Inc (1981) 148 CLR 170 applied

Adam’s Earthworks Pty Ltd v Empire Constructions Pty Ltd [2010] QCAT 228 cited

American Express International v Commissioner of State Revenue [2003] VSC 32 followed

Chancellor Park Retirement Village Pty Ltd v Squire [2004] QDC 172 followed

Dellaway v QBSA [2007] QCCT B181 cited
Delonga v QBSA [2004] QCCTB 26 cited
Demac Homes (Qld) Pty Ltd v Queensland Building Services Authority & Ors [2011] QCAT 331 cited

Hallett & Ors v Queensland Building Services Authority [2011] QCAT 355 cited

Kilgour v Queensland Building Services Authority [2010] QCAT 87 cited

Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310 cited
Nortask Pty Ltd v Rodriguez [2009] QDC 318 followed

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 cited

Rix v Queensland Building Services Authority [2011] QCAT 333 cited

Tamawood Limited & Anor v Paans [2005] QCA 111 applied

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers in accordance with section 32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).

REASONS FOR DECISION

Judge Fleur Kingham, Deputy President

I have had the advantage of reading the reasons of Ms Deane in draft. I agree with them, and with the orders she proposes.

Ms Sandra Deane, Member

This is an application by the Queensland Building Services Authority (QBSA) to the Appeal Tribunal for leave to appeal the decision of a Member of QCAT dismissing its application for costs and if successful, to appeal it.
Leave is necessary.[1] Leave to appeal will ordinarily only be granted where there is some question of general importance upon which further argument, and a decision of the Appeal Tribunal, would be to the public advantage; or, there is a reasonably arguable case of error in the primary decision and reasonable prospect that the applicant would obtain further substantive relief. Another question sometimes asked is: is leave necessary to correct a substantial injustice to the applicant, caused by some…

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: [2011] QCATA 265
Decision Date: 23 September 2011

CaseChat Overview and Summary

The Queensland Building Services Authority sought leave to appeal a decision in the Queensland Civil and Administrative Tribunal that dismissed their application for costs. The Tribunal had ruled against the Authority in a dispute with the respondent, Johnston, regarding the assessment of building work. The Authority argued that the Tribunal had made an error of law in dismissing their application for costs, which they claimed was an erroneous exercise of discretion. The appeal was brought before the Supreme Court of Queensland.

The court had to determine whether the Tribunal's decision to dismiss the application for costs was an erroneous exercise of discretion and whether it constituted an error of law. The Authority argued that the Tribunal's reasoning was flawed and that they were entitled to costs under the Building Act 1975. The respondent contended that the Tribunal had correctly exercised its discretion and that the decision should be upheld. The court examined the principles of discretion in awarding costs and the relevant statutory provisions.

The court found that the Tribunal had indeed erred in law by not properly considering the statutory criteria for awarding costs. The Authority's entitlement to costs was clear under the Building Act, and the Tribunal had failed to apply the correct legal principles. The court granted leave to appeal, allowed the appeal, and set aside the Tribunal's order dismissing the application for costs. The Authority's application for costs was ultimately dismissed due to the nature of the dispute and the outcome of the proceedings.

The final orders of the court were that leave to appeal was granted, the appeal was allowed, and the Tribunal's order dismissing the application for costs was set aside. However, the application for costs was dismissed, as the court determined that the Authority was not entitled to costs under the circumstances of the case.

Orders

Orders of the court

1. Leave to appeal granted.

2. Appeal allowed and the order dismissing the application for costs is set aside.

3. The application for costs is dismissed.

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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