| 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. |
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…
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- Case
- [2011] QCATA 265
- Decision Date
CaseChat Overview and Summary
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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