Taouk v Queensland Building and Construction Commission [No.2]
[2014] QCAT 16
•16 January 2014
| CITATION: | Taouk v Queensland Building and Construction Commission [No.2] [2014] QCAT 16 |
| PARTIES: | John Taouk (Applicant) |
| V | |
| Queensland Building and Construction Commission (Respondent) |
| APPLICATION NUMBER: | GAR330-11 |
| MATTER TYPE: | General administrative review matters |
| HEARING DATE: | On the papers |
| HEARD AT: | Brisbane |
| DECISION OF: | Member Howe |
| DELIVERED ON: | 16 January 2014 |
| DELIVERED AT: | Brisbane |
| ORDERS MADE: | 1. The Queensland Building and Construction Commission pay 75% of the Applicant’s costs incurred after 9 October, 2012 as agreed and in default of agreement assessed on a standard basis on the District Court scale. |
| CATCHWORDS: | Costs – application to review decision to issue direction to rectify – persistence with action against the evidence – cost order in the interests of justice Queensland Civil and Administrative Tribunal Act 2009 ss 100, 102 Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 |
APPEARANCES and REPRESENTATION (if any):
This application was heard and determined on the papers pursuant to s32 of the Queensland Civil and Administrative Tribunal Act 2009 (QCAT Act).
REASONS FOR DECISION
By an application heard in the Tribunal on 3 June, 2013 Mr Taouk sought review of a decision by the Queensland Building and Construction Commission directing him to rectify 17 defective items of building work associated with the construction of residential apartments at Nursery Road, Holland Park in 2006 and 2007.
The critical issue between the parties at all times was whether or not Mr Taouk terminated his engagement as builder and construction manager on 16 February, 2007 prior to completion and whether he should therefore be held responsible for all the defective work.
I concluded that the evidence in support of Mr Taouk's position was compelling and substantial though based in large part on oral testimony. The order made following hearing was that Mr Taouk be directed to rectify one item of complaint only, namely the falls to the eve gutters above units 8, 14, 13 and 5 so as to comply with the requirements of AS 3500.3. This meant Mr Taouk was in large part successful in his application for review.
Mr Taouk now seeks an order for his costs of the application.
The general rule with respect to costs in the Tribunal is that the parties should bear their own[1]. However the Tribunal may make an order requiring a party to pay all or part of another party’s costs if the Tribunal considers the interests of justice require it[2].
[1] QCAT Act s 100.
[2] Ibid s 102.
The expression "in the interests of Justice" used in s102(1) of the QCAT Act confers a broad discretionary power on the decision maker[3]. The Act thereafter gives guidance as to circumstances wherein it may be in the interests of justice to decide to make such an order[4].
[3]Wilson J in Ralacom Pty Ltd v Body Corporate for Paradise Island Apartments (No 2) [2010] QCAT 412 at [4] citing Kirby P in Herron v The Attorney General for New South Wales (1987) 8 NSWLR 601 at 613.
[4] QCAT Act s 102(3).
The Evidence at Hearing
Important evidence was given at hearing by Mr Zamora, a tiler, who worked on the construction site. He confirmed Mr Taouk's claims that he left the job before completion. Similar evidence supporting Mr Taouk’s position was also given by Mr Taouk's brother and by Mr Hanna, a director of the developer company APJ Pty Ltd.
The position adopted by the Commission throughout however was that Mr Taouk was the responsible builder for the entire term of the construction. The taking of that position appears to have been based on Mr Taouk’s failure to advise the Commission that he was leaving the job when he claimed he left the job, and his failure to produce any documentation to support his contrary assertions. Additionally, the building inspector tasked with investigation and report on the job and who gave evidence at hearing simply did not believe Mr Taouk’s assertions.
Mr Taouk’s evidence that he had no paperwork to substantiate his claim because he walked out without such and never returned to the site was not so extraordinary as to be unbelievable.
The Commission asserts that at the time it issued the direction to rectify to Mr Taouk he had supplied no independent evidence to support his position. The decision to issue the direction to rectify was therefore reasonably made given Mr Taouk's name was listed on the Commission’s records as builder. I accept that is arguable.
Further however the Commission submits that Mr Zamora's statement of evidence was only received by the Commission three weeks prior to hearing. Given that the hearing was so close, and the matter was not one of legal complexity but only a factual dispute, it was not unreasonable so close to hearing to allow the matter to proceed to hearing.
The Commission says this matter was essentially a factual dispute. There is no dispute that there was no obligation on the part of Mr Taouk, when he left the job, to advise the Commission of that fact. Accordingly the results of the investigation by Mr Pratt, an officer of the Commission, culminating with his email of advice of 9 October, 2012 addressed to the solicitor for the Commission with the conduct of matter before the Tribunal was critically significant. Mr Pratt spoke to other tradesmen who had worked with Mr Taouk on the project[5].
[5] Ex 8 p77 of the hearing.
Mr Pratt spoke to Mr Zamora who told him Mr Taouk had left the job as claimed, prior to completion. Mr Pratt also spoke to two other tradesmen working on the job and both offered very similar evidence in support of Mr Taouk’s assertions.
Accordingly it is not accurate to claim that it was only on receipt of Mr Zamora’s statement of evidence on 10 May, 2013, approximately three weeks before hearing, that the Commission understood the evidence Mr Zamora would give.
The question to be asked is whether this circumstance of the Commission being apprised at such an early date of the consistent independent evidence conflicting with the factual assumptions made by the Commission in pursuing their position that Mr Taouk was there throughout the project, and failing to act on it, is so compelling as to point to a costs award being appropriate in the interests of justice.
In my opinion it does. The Commission appears to have conducted the hearing on the basis Mr Taouk was put to proof about his assertions.
Generally, there is no onus of proof in review proceedings[6]. The Tribunal conducts a fresh hearing on the merits. Accordingly there is no room in such proceedings to put a party to proof as in adversarial court proceedings. The Queensland Building and Construction Commission Act 1991 imposed no such onus.
[6] Re Carmel Elizabeth Mcdonald v Director-General of Social Security [1984] FCA 57.
There were 14 directions to rectify out of 17 which could not be reasonably attributable to work done whilst Mr Taouk was supervising builder, accepting that he left the job prior to completion on 16 February 2007. There were 3 items of complaint associated with work Mr Taouk supervised during his engagement regardless of the date he claimed he left the project.
One of those items of complaint was found to be defective work for which Mr Taouk was responsible. It was not unreasonable on the part of the Commission to pursue the directions to rectify in respect of those 3 items. A significant proportion of the evidence led at the hearing however dealt with the issue as to whether or not Mr Taouk remained through to completion.
In that circumstance it is appropriate that the Commission pay a corresponding proportion of the applicant's costs of the application after 9 October, 2012, which I conclude should be 75%.
The appropriate order is that the Commission pay 75% of the Applicant’s costs incurred after 9 October, 2012 as agreed and in default of agreement assessed on a standard basis on the District Court scale.
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