Roberts v Queensland Building and Construction Commission - [2014] QCAT 396

CITATION:

Roberts v Queensland Building and Construction Commission [2014] QCAT 396

PARTIES:	Anthony Mark Roberts (Applicant)
v
Queensland Building and Construction Commission (Respondent)

APPLICATION NUMBER:

GAR120-13

MATTER TYPE:

General administrative review matters

HEARING DATE:

On the Papers

HEARD AT:

Brisbane

DECISION OF:

Member Gardiner

DELIVERED ON:

11 August 2014

DELIVERED AT:

Brisbane

ORDERS MADE:

1. The application for costs is dismissed.

CATCHWORDS:

BUILDING – REVIEW – COSTS – Decision of Commission to exclude claim under statutory insurance scheme – WHERE deck falling into river – WHERE two experts have different views as to cause of movement – WHERE homeowner’s expert preferred – WHERE costs application made by homeowner – WHERE application of type normally seen by Tribunal – WHETHER costs should be awarded

Queensland Civil and Administration Tribunal Act 2000 ss 100, 102, 105
Queensland Civil and Administrative Tribunal Rules 2009 r 86

Tucker v Queensland Building and Construction Commission (No. 2) [2014] QCAT 234
Wolfgram v Racing Queensland [2012] QCAT 44 distinguished

Fuge v Queensland Building and Construction Commission [2014] QCAT 383 followed

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

On 11 June 2014 this Tribunal handed down a decision setting aside the decision of the Commission to disallow Mr Roberts’ claim under the statutory insurance scheme.
Mr Roberts had made a costs application in the event of a successful outcome. A timetable for submissions was directed and the application for costs was set to be heard on the papers. This is a consideration of that application.
Costs are considered under s 100 and s 102 of the Queensland Civil and Administration Tribunal Act 2009.
The starting point concerning costs in QCAT is that each party must bear its own[1]. This presumption may be displaced if the Tribunal considers, in the interests of justice, a party should pay all or part of the costs of another party[2]. The phrase ‘in the interests of justice’ is not defined in the Act but is to be construed according to its ordinary and plain meaning, which confers a broad discretionary power on the decision-maker[3].
[1]QCAT Act s 100.
[2]QCAT Act s 102(1).
[3]Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613 (per Kirby P).
Section 102(3) sets out the matters the Tribunal may have regard to in making any costs award. In determining whether it is in the interests of justice to award costs against another party, the Tribunal may have regard to the nature and complexity of the dispute; the relative strengths of the claims made by each of the parties; and, whether a party has acted in a way that unnecessarily disadvantages another party.
Section 105 allows the rules to authorise the awarding of costs in other circumstances, including, for example, the payment of costs in a proceeding of an offer to settle the dispute has…

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: [2014] QCAT 396
Decision Date

CaseChat Overview and Summary

In the case of Roberts v Queensland Building and Construction Commission, the applicant, Mr Anthony Mark Roberts, sought a review of the Commission's decision to exclude his claim under a statutory insurance scheme. The dispute arose after a deck fell into a river, with two experts providing differing opinions on the cause of the movement. The applicant's expert's opinion was preferred by the Tribunal. Subsequently, Mr Roberts applied for costs in the event of a successful outcome. This application was heard on the papers and was subject to the Queensland Civil and Administrative Tribunal Act 2009 and the Queensland Civil and Administrative Tribunal Rules 2009.

The primary legal issue was whether the Tribunal should exercise its discretion to award costs against the Commission under section 102 of the QCAT Act. Section 100 of the Act stipulates that each party bears its own costs, but this presumption may be displaced if it is in the interests of justice to do so. The applicant argued that the circumstances warranted a costs award, citing his complete success in the claim, the technical nature of the matter necessitating expert evidence, and the Commission's role in testing the evidence. The Commission opposed the application, asserting that the applicant's success alone was insufficient and that proper management of the statutory insurance scheme was significant.

The Tribunal considered the relevant legal principles and previous cases, including Fuge v Queensland Building and Construction Commission and Wolfgram v Racing Queensland. The Tribunal noted that the circumstances of the case did not compel a costs order against the Commission. The applicant's reliance on Wolfgram was distinguished, as that case involved a disciplinary matter with serious personal allegations, unlike the present building dispute. The Tribunal also found that the Commission was not required to engage another expert when the evidence differed, as it was entitled to have the evidence tested before the Tribunal. The applicant's submission regarding the offer of settlement was rejected, as the Tribunal determined that the decision was not more favourable to the applicant than the offer.

Ultimately, the Tribunal concluded that the circumstances did not warrant a costs order against the Commission. The Tribunal found that the Commission had not acted to the disadvantage of the applicant and that the nature and complexity of the dispute did not necessitate legal representation. The relative strengths of the claims were based on expert evidence, and it was appropriate for the Tribunal to test this evidence. The Tribunal also considered the applicant's financial advantage after the claim was covered by the statutory warranty scheme. The Tribunal did not find any other relevant matters that required consideration in relation to costs.

The final order was that the application for costs was dismissed.

Orders