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

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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.

  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]

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

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Details
Case
[2020] QCAT 358
Decision Date

CaseChat Overview and Summary

Robyn Belinda Spence sought judicial review of a decision made by the Queensland Building and Construction Commission, which declined to issue Directions to Rectify. The matter was heard by the Queensland Civil and Administrative Tribunal. The central issue for the tribunal was whether the Commission's refusal to issue Directions to Rectify was legally sound, and if not, whether the applicant's substantial success in the review warranted an exception to the general rule that parties bear their own costs.

The tribunal examined the legal framework governing the Commission's decisions and the principles surrounding costs in civil proceedings. It considered the case law, particularly the earlier decisions in Dyer v Spence and Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments, which provided guidance on the tribunal's discretion to award costs when the interests of justice so required. The tribunal also reviewed the statutory provisions under the Queensland Civil and Administrative Tribunal Act 2009 that empower it to make orders regarding costs in such proceedings.

Upon reviewing the evidence and the applicable legal principles, the tribunal found that the Commission's decision to not issue Directions to Rectify was flawed. Given the applicant's substantial success in the review and the compelling nature of the interests of justice, the tribunal exercised its discretion to order the Commission to pay the applicant's costs in the amount of $72,000 within 28 days of the date of the order. This decision was made in accordance with the tribunal's authority under sections 100, 102, and 107 of the Queensland Civil and Administrative Tribunal Act 2009.

Orders

Orders of the court

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

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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