Sedl v Queensland Building Services Authority (No 2) - [2012] QCAT 342

CITATION:

Sedl v Queensland Building Services Authority (No 2) [2012] QCAT 342

PARTIES:	Patrick Sedl
v
Queensland Building Services Authority

APPLICATION NUMBER:

GAR102-10

MATTER TYPE:

General administrative review matters

HEARING DATE:

14 June 2011

HEARD AT:

Brisbane

DECISION OF:

Paul Favell, Member

DELIVERED ON:

3 August 2012

DELIVERED AT:

Brisbane

ORDERS MADE:

There be no order as to costs.

CATCHWORDS:

Costs – building matter

Queensland Civil and Administrative Tribunal Act 2009, ss 6-7, 100
Queensland Building Services Authority Act 1991, s 77

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

APPEARANCES and REPRESENTATION (if any):

APPLICANT:	Mr Patrick Sedl represented by Mr C Watters of counsel (acting Pro Bono)
RESPONDENT:	Queensland Building Services Authority represented by Mr B N S Turnbull of HWL Ebsworth

REASONS FOR DECISION

On 5 January 2012 the Tribunal published a finding that “the date of practical completion is 4 October 2003”. The practical effect of that finding was expressed in an order made on 16 January 2012 in conformity with section 24 of the QCAT Act as:
“1.    The date of practical completion is 4 October 2003.
2.     The Queensland Building Services Authority is released from liability in relation to the insured works.
3.     The decision of the Queensland Building Services Authority of 12 March 2010 to reject the claims made by the Applicant under the BSA Statutory Insurance scheme is confirmed.”
The dispute between the Applicant and the Respondent related to a review of the Respondent’s decision to deny the Applicant coverage for certain claims made pursuant to the statutory insurance scheme.
The Respondent applied for a costs order against the Applicant.
The Respondent acknowledges that a tribunal’s power to order costs is a creation of statute.
In resisting the application for a costs order the Applicant seeks to rely upon section 100 of the Queensland Civil and Administrative Tribunal Act 2009 which states:
“Other than as provided under this Act or an enabling Act, each party to a proceeding must bear the party’s own costs for the proceeding” (emphasis added).
The Respondent submits that section 77(2)(h) of the QBSA Act displaces section 100 of the QCAT Act and relies on the decision in Lyons v. Dreamstarter Pty Ltd [2011] QCATA 142 at [34]-38].
The Respondent claims that the discretion in section 77(2)(h) is broad and that the Tribunal may make an order as to costs that is justified in the circumstances: see Lyons at [33] citing Oshlak v Richmond River Council (1998) 193 CLR 72 at 88.
Three reasons the Respondent says why a costs order is justified in the circumstances are as follows:
(i)   The Applicants rejected an early offer of settlement;
(ii)     The Applicant’s conduct was inappropriate; and
(iii)    The Applicant’s evidence (though represented) was inappropriately drawn and not delivered in a timely way, thus increasing costs.
The Respondent submitted that it is appropriate to consider an offer of settlement made to the Applicant as part of the exercise of discretion…

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.

Keep reading for free

Create a free CaseChat account to read Sedl v Queensland Building Services Authority (No 2) and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] QCAT 342
Decision Date

CaseChat Overview and Summary

The case of Sedl v Queensland Building Services Authority (No 2) involved a review of the Queensland Building Services Authority's decision to deny the Applicant, Patrick Sedl, coverage for certain claims made pursuant to the statutory insurance scheme. The dispute was heard by the Queensland Civil and Administrative Tribunal (QCAT), with the Respondent, Queensland Building Services Authority, represented by Mr B N S Turnbull of HWL Ebsworth, and the Applicant represented by Mr C Watters of counsel (acting Pro Bono). The primary legal issue before the tribunal was whether a costs order should be made against the Applicant for the proceedings.

The Respondent sought a costs order under section 77(2)(h) of the Queensland Building Services Authority Act 1991, arguing that the Applicant's conduct was inappropriate and that the Applicant's evidence was not delivered in a timely way. The Respondent claimed that the Applicant's actions led to increased costs, including the rejection of an early offer of settlement. The Applicant resisted the application for a costs order, relying on section 100 of the Queensland Civil and Administrative Tribunal Act 2009, which states that each party must bear their own costs unless otherwise provided. The Applicant also argued that the case was a "dead heat" and that the general rule should apply, with each party bearing its own costs.

The tribunal considered the relevant legislative provisions and decided that section 77(2)(h) of the QBSA Act displaced section 100 of the QCAT Act. The tribunal found that the discretion to award costs must be exercised judicially upon facts connected with or leading up to the litigation. The tribunal concluded that the contest was a draw, and the majority of the hearing time and evidence was taken up with the issue of the date of practical completion. The tribunal was not satisfied that the Applicant's conduct alone caused the case to proceed and continue to hearing. The tribunal also found that the Applicant was not justified in rejecting the offer as the offer was based on the contentions about the time limitations and the date of practical completion, which the Applicant ultimately succeeded on. In all of the circumstances, the tribunal determined that it would not be just and reasonable to make a costs order.

The tribunal made no order as to costs.

Orders