VDW Property Group Pty Ltd v Ben Thomas Architects

[2014] QCAT 78

CITATION: VDW Property Group Pty Ltd v Ben Thomas Architects [2014] QCAT 078

PARTIES:	VDW Property Group Pty Ltd (Applicant)
v
Ben Thomas t/as Ben Thomas Architects (Respondent)

APPLICATION NUMBER: BDL140-13

MATTER TYPE: Building matters

HEARING DATE: On the papers

HEARD AT: Brisbane

DECISION OF: Member Jones

DELIVERED ON: 3 March 2014

DELIVERED AT: Brisbane

ORDERS MADE:

1.    That the Applicant VDW Property Group Pty Ltd pay to the Respondent Ben Thomas the sum of $4369.00, for costs of and incidental to the application, by 4:00pm on 7 April 2014.

CATCHWORDS:

Building matters - costs under section 77(2)(h) of the Queensland Building Services Act 1991 displaces the standard position under section 100(1) of the Queensland Civil and Administrative Tribunal Act 2009 that parties will bear their own costs.

Lyons v Dreamstarter Pty Ltd [2011] QCATA 142
Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 considered.

APPEARANCES and REPRESENTATION (if any):

This matter was heard and determined on the papers pursuant to s 32 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act).

REASONS FOR DECISION

Introduction

1. This application for costs concerns a building dispute.  After a hearing I found in favour of the Respondent, Ben Thomas.  Mr Thomas had claimed for costs but there was no costs information before me at the hearing. The parties have since filed their material on the costs application.

Does the presumption of section 100(1) of the QCAT Act apply?

1. The parties’ submissions are based on section 100(1) of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) (QCAT Act). This section sets out the primary position for QCAT matters that each party will bear their own costs. There are exceptions. One is if the interests of justice require that an order for costs be made.[1] However there is another important exception based on the opening words of section 100(1), that is: ‘Other than as provided under this Act or an enabling Act …’.

   [1]QCAT Act s 102(1).

2. The enabling Act in this case is the Queensland Building Services Authority Act 1991 (Qld) (QBSA Act) and the relevant costs provision of that Act is section 77(2)(h). It simply says that the Tribunal may award costs (in cases where section 77 of the QBSA Act confers jurisdiction on QCAT to hear building disputes).

3. The combined effect of the proviso in section 100(1) of the QCAT Act and section 77(2)(h) of the QBSA Act has been considered in two QCAT appeal matters. The learned Deputy President considered the question in Lyons v Dreamstarter Pty Ltd[2].  The learned President affirmed the Deputy President’s conclusions in a second appeal concerning the same parties.[3]

   [2]Lyons v Dreamstarter Pty Ltd [2011] QCATA 142.

   [3]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [7] and [8].

4. The learned Deputy President determined that section 77(2)(h) was a modifying provision under section 6(7) of the QCAT Act which may add to, vary or exclude provisions of the QCAT Act. It prevails over the provision of the QCAT Act and must therefore be read, with any necessary changes, as if the modifying provision was part of the QCAT Act. The effect is to give the Tribunal a broad general power, to be exercised judicially, to award costs in building disputes such as the one between the Applicant and Respondent here.

Is the Respondent entitled to costs?

1. The Applicant has submitted that the Respondent should not be entitled to his costs at all. This is essentially on the basis that the interest of justice exception to the usual position in section 100(1) that costs in QCAT will be borne by the parties does not apply. For the reasons above, this argument cannot succeed. Section 100(1) is not the relevant cost provision. The relevant provision is section 77(2)(h) of the QBSA Act.

2. To paraphrase the President in the 2012 appeal which considered that provision, although it is not automatic that a successful party will be awarded costs, the starting principle in exercising the discretion is that it is just and reasonable that a party who causes another to incur costs should reimburse the other party for them.[4]   The Respondent clearly succeeded in a majority of the grounds he raised in response to the claim against him.

   [4]Lyons v Dreamstarter Pty Ltd [2012] QCATA 071 at [11].

3. Justice McHugh in the case of Oshlack v Richmond River Council[5] said that the traditional exceptions to the usual order as to costs focus on conduct of the successful party which disentitle it to the beneficial exercise of the discretion. Examples may include unnecessarily protracting the proceedings, succeeding on a point not argued, or obtaining relief which had already been offered.  I do not find any such disentitling conduct on the part of the Respondent, and therefore the Respondent is entitled to costs.  The question is then, in what amount?

   [5]Oshlack v Richmond River Council (1998) 193 CLR 72 at [69].

Amount of costs

1. Section 107 of the QCAT Act says that if the Tribunal makes a costs order it should fix the costs if possible. The Respondent has claimed costs in the sum of $6,363. The amount is based on the Magistrates Court scale and is supported by an affidavit from the Respondent’s solicitor. I accept the Magistrates Court scale as an appropriate basis for fixing costs.

2. The claim includes amounts for the costs of an application for leave to be legally represented and for attendance at the hearing. These costs total $1,994. The Applicant has submitted that these costs should not be awarded, based on the refusal of the Tribunal to grant leave to the Respondent to be legally represented.

3. I note that there is a difference between being refused leave to be legally represented at a QCAT hearing based on the criteria set out in the Act, and the reasonableness of a party seeking legal advice to respond to a claim against him or her.  I do not think it was unreasonable for the Respondent to seek legal advice and to claim those costs.  However, in my view, the decision not to grant leave to the Respondent to be legally represented is relevant to the question of which particular costs should be awarded.

4. The Respondent was not successful in his application for leave to be represented and I therefore do not award those costs.  I also do not award the costs associated with his lawyer’s presence at the hearing.  This is because the Tribunal had denied leave to be represented and the lawyer’s presence was purely as an observer, at the choice of the Respondent.

Order

1. That the Applicant VDW Property Group Pty Ltd pay to the Respondent Ben Thomas the sum of $4369.00, for costs of and incidental to the application, by 4:00pm on 7 April 2014.