Stumkat v Queensland Building Services Authority
[2010] QCAT 427
•26 August 2010
| CITATION: | Stumkat v Queensland Building Services Authority [2010] QCAT 427 |
| PARTIES: | Mr Christopher Martin Stumkat |
| v | |
| Queensland Building Services Authority |
| APPLICATION NUMBER: | QR135-07 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | 26 August 2010 |
| HEARD AT: | Decision on the papers |
| DECISION OF: | Mr Alexander Crawford |
| DELIVERED ON: | 26 August 2010 |
| DELIVERED AT: | Brisbane |
ORDERS MADE: | The Applicant pay the Respondent the sum of $28,762.50 on or before 4:00pm on 30 September 2010 |
| CATCHWORDS : | Costs; sections 100 & 102 of Queensland Civil and Administrative Tribunal Act 2009; sections 70 & 71 of the Commercial and Consumer Tribunal Act 2003 |
APPEARANCES and REPRESENTATION (if any):
| APPLICANT: | Mr Christopher Martin Stumkat |
| RESPONDENT: | Queensland Building Services Authority represented by MH Hindman of Counsel |
REASONS FOR DECISION
Introduction
At the conclusion of a 3 day hearing the Tribunal ordered that:
The Respondent’s decision of 23 July 2007 is confirmed except as set out in paragraph 2.
The Respondent’s decision of 23 July 2007 is set aside insofar as:
(a)By consent of the Authority in respect of item 20 insofar as it decides the first floor balustrade does not comply with the Council requirements and is accordingly defective;
(b)Item 36.
The Respondent will file in the Registry and serve on the Applicant - 1 page of written submissions on the question of costs by 4:30pm on 22 July 2010.
The Applicant will file in the Registry and serve on the Respondent - 1 page of written submissions on the question of costs by 4:30pm on 29 July 2010.
The question of costs is to be determined on the papers.
Background
The Applicant sought a review of the Respondent’s decision dated 23 July 2007 that the rectification work carried out by the Applicant in response to Direction to Rectify 24056 issued 4 July 2002 (being a direction to rectify requiring rectification of building work in accordance with section 72 of the Queensland Building Services Authority Act 1991 Qld) was unsatisfactory or incomplete. The Applicant applied to review the decision dated 23 July 2007 because it was alleged that the decision was in all the circumstances unfair to him. At the conclusion of the 3 day trial, the Tribunal made the orders as above stated.
The submissions for the Respondent on costs dated 22 July 2010 are as follows:
OUTLINE OF SUBMISSIONS FOR THE RESPONDENT ON COSTS
1.The Respondent has been substantially successful in defeating the review application.
2.There are a number of decisions of QCAT in respect of costs that conclude that in a pending proceeding (which this is), s. 71 of the CCT Act is the appropriate cost regime to apply.[1]
[1] Billing v Queensland Building Services Authority [2009] QCAT 31 (23 December 2009); Leinhart v Sunrise Homes Pty Ltd [2010] QCAT 156 (13 January 2010); Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310 (30 June 2010); Mair v Queensland Building Services Authority [2010] QCAT 74 at 37.
3.Even if the QCAT regime applies, the Respondent contends that this is a case where the general rule in s. 100 QCAT Act should give way (as specifically contemplated in that section) to s. 102(1) QCAT Act.
4.The reasons that it is in the interests of justice to make an award of costs in the Respondent’s favour in this case (whether under the CCT Act or the QCAT Act) are (in addition to the outcome)-
a.The application was instituted and substantially proceeded at a time that the CCT Act applied. Whilst under that Act costs were still discretionary (s. 71 CCT Act), there was a not unreasonable expectation that an award of costs would likely be made in favour of the successful party in this more complex matter (particularly in circumstances where both parties had consented to a grant of legal representation and were represented). Despite the commencement of the QCAT Act, it is reasonable that parties would not abandon legal representation that had been acting prior to the commencement of that Act (s. 102(3)(f) QCAT Act);
b.The nature and complexity of the dispute (including some significant legal arguments and two days of evidence) (s. 102(3)(b) QCAT Act).
5.The change between the CCT Act and the QCAT Act in respect of how costs are to be dealt with is not as significant as might first appear (bearing in mind the terms of s. 70 CCT Act). The analysis of Keane JA in Tamawood P/L v Paans [2005] QCA 111 as set out in Paul J Kelly t/a Paul J Kelly Building Civil & Construction v QBSA [2008] QCCTB 25 (18 February 2008) at paragraphs 64-69, remains appropriate.
6.The costs sought by the Respondent are moderate. The rectification costs incurred would give an appropriate guide. Those costs were more than, but in the order of $50,000.00. Usually the District Court scale would be appropriate. The Respondent submits for scale G of the Magistrates Court scale except for Counsel’s fees that should be allowed at the amount actually incurred. Costs might be fixed (s. 107(1) QCAT Act) with reference to the following items (although certainly not exhaustive of the work undertaken by the Respondent which included a number of appearances at directions hearings and the compulsory conference, to name but two items) - items 2 ($965.00), 5(a) ($3,205), 8(a) x3 ($1,740), Counsel’s fees ($22,852.50 - preliminary point application and associated work, settling statements of evidence, compulsory conference, preparation for and hearing) - a total of $28,762.50.
The Submissions for the Applicant dated 27 July 2010 are as follows:
Applicant refers to QBSA costs as per correspondence dated 22/7/10 and makes the following submissions in relation to.
Applicant was of the belief from various enquiries that were made, that it was common practice for each party to pay their own costs.
Applicant believes that he should not be victimised for being unable to afford costly legal representation for his case against the might of the QBSA with unlimited resources at hand with experienced legal staff.
Applicant believes that the costs claimed by the QBSA are way out of proportion to the eventual claim of less than $50,000 that is, these costs are almost 50%.
Applicant believes that consideration should be given to the fact that he was partly successful in the Review application, and perhaps an order of around 10% would be more reasonable, and even then due to financial situation a repayment plan would have to be implemented over a period of time.
Applicant believes that sincere attempts were made to meet a satisfactory compromise at various mediation meetings which were not successful.
Applicant also brings to the notice of tribunal that there are ongoing expenses in relation to sons diagnosis of Leukaemia and costs associated with his ongoing treatment.
Applicant requests that the tribunal will look favourably on this submission in relation to costs.
Regards,
Chris Stumkat
Law
The Tribunal’s jurisdiction in respect of costs is dealt with in Division 6, sections 100 to 109 inclusive of the QCAT Act. Sections 100 and 102 say as follows:
100 Each party usually bears own costs
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.102 Costs against party in interests of justice
(1) The tribunal may make an order requiring a party to a
proceeding to pay all or a stated part of the costs of another
party to the proceeding if the tribunal considers the interests
of justice require it to make the order.
(2) However, the only costs the tribunal may award under
subsection (1) against a party to a proceeding for a minor civil
dispute are the costs stated in the rules as costs that may be
awarded for minor civil disputes under this section.
(3) In deciding whether to award costs under subsection (1) or (2)
the tribunal may have regard to the following—
(a) whether a party to a proceeding is acting in a way that
unnecessarily disadvantages another party to the
proceeding, including as mentioned in section 48(1)(a)
to (g);
(b) the nature and complexity of the dispute the subject of
the proceeding;
(c) the relative strengths of the claims made by each of the
parties to the proceeding;
(d) for a proceeding for the review of a reviewable
decision—
(i) whether the applicant was afforded natural justice
by the decision-maker for the decision; and
(ii) whether the applicant genuinely attempted to
enable and help the decision-maker to make the
decision on the merits;
(e) the financial circumstances of the parties to the
proceeding;
(f) anything else the tribunal considers relevant.
10 Section 70 of the CCT Act says as follows:
“The main purpose of this division is to have parties pay their own costs unless the interests of justice require otherwise.”
11 .Section 71 of the CCT Act says as follows:
71 Costs
(1) In a proceeding, the tribunal may award the costs it considers appropriate
on--(a) the application of a party to the proceeding; or
(b) its own initiative.(2) The costs the tribunal may award may be awarded at any stage of the
proceeding or after the proceeding has ended.
(3) If the tribunal awards costs during a proceeding, the tribunal may order
that the costs not be assessed until the proceeding ends.
(4) In deciding whether to award costs, and the amount of the costs, the
tribunal may have regard to the following--(a) the outcome of the proceeding;
(b) the conduct of the parties to the proceeding before and during
the proceeding;
c) the nature and complexity of the proceeding;
(d) the relative strengths of the claims made by each of the parties
to the proceeding;
(e) any contravention of an Act by a party to the proceeding;
(f) for a proceeding to which a State agency is a party, whether the
other party to the proceeding was afforded natural justice by the
State agency;
(g) anything else the tribunal considers relevant.Examples of paragraph (g)--
The tribunal may consider whether a party to a proceeding is acting
in a way that unreasonably disadvantages another party to the
proceeding.
The tribunal may consider whether the proceeding, or a part of the
proceeding, has been frivolous or vexatious.
(5) A party to a proceeding is not entitled to costs merely because--(a) the party was the beneficiary of an order of the tribunal; or
(b) the party was legally represented at the proceeding.(6) The power of the tribunal to award costs under this section is in addition
to the tribunal's power to award costs under another provision of this or
another Act.
(7) The tribunal may direct that costs be assessed--(a) in the way decided by a presiding case manager; or
(b) by a person appointed by the tribunal.
Observations and Findings
12 I agree with the Respondent’s submission that this application is a pending proceeding and that section 71 of the CCT Act is the appropriate cost regime to apply[2].
[2] Malay Industries Pty Ltd v Queensland Building Services Authority [2010] QCAT 310 at paragraphs 14 & 15.
13 Having considered the submissions of the Respondent and the submissions of the Applicant, I consider that it is in the interest of justice to make an award of costs in the Respondent’s favour in this case under section 71 of the Commercial and Consumer Tribunal Act, particularly bearing in mind the reasons set out in paragraph 4 of the submissions for the Respondent.
14 I note the submission for the Respondent that the change between the CCT Act and the QCAT Act in respect of how costs are to be dealt with is not as significant as it might first appear bearing in mind the terms of section 70 of the CCT Act and that the analysis of Keane JA in Tamawood P/L v Paans [2005] QCA 111 as set out in Paul J Kelly t/a Paul J Kelly Building Civil & Construction v QBSA [2008] QCCTB 25 (18 February 2008) at paragraph 69 remains appropriate.
15 It seems to me that the Parliament by including the word “must” in section 100 of the QCAT Act has more firmly and clearly stated its view regarding the normal situation as to costs, than was the case in section 70 of the CCT Act. No doubt, in due course, sections 100 and 102 of the QCAT Act will be the subject of further judicial comment. However, for present purposes, I repeat my finding as set out above regarding costs in paragraph 10.
16 An order for costs against the Applicant is not a matter of victimisation as alleged by the Applicant. It is simply a matter that it is in the interest of justice, in this case, to make an order for costs bearing in mind the reasons set out in paragraph 4 of the submissions of the Respondent and the following:
(a)The Respondent was substantially successful in defeating the review application;
(b)The review application was complex (section 71 (4)(c) CCT Act); and
(c)The review application ran for 3 days.
17 I note that the Applicant states that he was partly successful in the review application and accordingly only 10% of the cost would be more reasonable. However, the Respondent has been substantially successful and for the reasons set out above I have made the order regarding costs.
18 I note the Applicant asserts that sincere attempts were made to meet a satisfactory compromise at various mediation meetings which were not successful but the very fact that the meetings were not successful has led to this litigation despite such attempts.
19 I note further that the Applicant says that there are ongoing expenses in relation to his son’s sickness and this relates to the financial circumstances as to the parties to the proceedings. I have taken this submission into account.
20 I accept that the costs of the Respondent have been reduced by the Respondent from a larger amount that could have been claimed by the Respondent. I further note that the Applicant asserts that the costs claimed by the Respondent are almost 50% of the claim. I consider that costs should be fixed for Scale G of the Magistrates Court except for Counsel’s fees that should be allowed at the amount actually incurred. I accept that costs should be fixed with reference to the following items:
Items 2 ($965),
5a ($3,205),
8a x 3 ($1,740)
Counsel’s Fees: $22,852.50,
Preliminary Point Application, Associated Work, Settling Statement of Evidence, Compulsory Conference, Preparation for Hearing and Hearing. The costs total: $28,762.50.
21 Accordingly I order that the Applicant pay the Respondent the sum of twenty eight thousand seven hundred and sixty two dollars and fifty cents ($28,762.50) on or before 4:00pm on 30 September 2010.
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