Spence v Queensland Building and Construction Commission (No. 2)

QUEENSLAND CIVIL AND
ADMINISTRATIVE TRIBUNAL

CITATION:

Spence v Queensland Building and Construction Commission (No. 2)  [2020] QCAT 358

PARTIES:

ROBYN BELINDA SPENCE

(applicant)

v

QUEENSLAND BUILDING AND CONSTRUCTION COMMISSION

(respondent)

APPLICATION NO/S:

GAR282-18

MATTER TYPE:

General administrative review matters

DELIVERED ON:

17 September 2020

HEARD AT:

On the papers

DECISION OF:

Member Olding

ORDERS:

CATCHWORDS:

The Queensland Building and Construction Commission must pay to Robyn Belinda Spence costs in proceeding GAR282-18 fixed in the amount of $72,000 within 28 days of the date of this order.

PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS - COSTS GENERAL MATTERS  – where applicant substantially succeeded in application for review of decision not to give Directions to Rectify – where interests of justice so compelling as to displace the usual rule that parties bear their own costs

Queensland Civil and Administrative Tribunal Act 2009 (Qld), ss 100, 102, 107

Dyer v Spence  [2016] QCAT 385

Dyer v Spence  [2017] QCAT 211
Dyer v Spence (No 2) [2017] QCAT 375

Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412
Spence v Queensland Building and Construction Commission [2020] QCAT 274

REPRESENTATION:
Applicant:	Bathersby Legal
Respondent:	K Joyce, in-house solicitor, Queensland Building and Construction Commission

REASONS FOR DECISION

1. Mrs Spence is dissatisfied with residential building work carried at her property. She complained to the Queensland Building and Construction Commission (“the Commission”). The Commission issued some Directions to Rectify (“DTRs”) to the builder but ultimately declined to issue DTRs in relation to 49 complaint items, either at all or in a few cases in the terms sought by Mrs Spence.

2. On 21 July 2020, the Tribunal decided an application by Mrs Spence for review of the Commission’s decision.[1] The Tribunal confirmed the Commission’s decision to refuse to give DTRs in respect of 23 of the complaint items but set aside the Commission’s decision in respect of remaining items, effectively varying or requiring the issue of DTRs for a further 26 complaint items.

   [1]Spence v Queensland Building and Construction Commission [2020] QCAT 274.

3. These reasons concern Mrs Spence’s application for costs of the review proceeding, which is opposed by the Commission.

The applicable principles

1. The general rule under s 100 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (“QCAT Act”) is that each party to a proceeding before the Tribunal bears their own costs. However, under s 102(1) the Tribunal may make an order requiring a party to pay costs of another party “if the tribunal considers the interests of justice require it to make the order”.

2. It has been held that for a party to obtain an award of costs “the interests of justice [must] point so compellingly to a costs award that they overcome the strong contra-indication against costs orders in section 100”.[2]

   [2]Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412, [29].

3. Various factors the Tribunal may have regard to in deciding whether to…