Queensland Building Services Authority v Fenwick (No 2)

[2012] QCATA 200

CITATION: Queensland Building Services Authority v Fenwick (No 2) [2012] QCATA 200

PARTIES:

Queensland Building Services Authority
(Applicant/Appellant)

v

Don Charles Fenwick

(Respondent)

APPLICATION NUMBER: APL069-11

MATTER TYPE: Appeals

HEARING DATE: On the paper

HEARD AT: Brisbane

DECISION OF:

Richard Oliver, Senior Member

Dr Bridget Cullen, Member

DELIVERED ON: 16 October 2012

DELIVERED AT: Brisbane

ORDERS MADE:

[1]     The QBSA must pay Mr Fenwick’s costs of and incidental to the application for leave to appeal or appeal on a standard basis on the District Court scale as might be agreed between the parties.

[2]     Should the parties fail to agree on costs then Mr Fenwick must file in the Tribunal and give to the Authority a short form assessment of costs prepared by a costs assessor by 30 November 2012.

[3]     The application for costs will be listed for hearing on a date to be advised to the parties for the Tribunal to fix the amount of costs payable to the respondent.

CATCHWORDS:

Costs – Queensland Building Services Authority Home Warranty Scheme – Application to review decision to reject homeowner’s claim – homeowner successful – QBSA entirely unsuccessful – application by homeowner for costs of the appeal

Queensland Civil and Administrative Tribunal Act 2009, ss 100, 102
Queensland Building Services Authority Act 1991, s 77
Commercial and Consumer Tribunal Act 2003, s 142

Lyons v Dreamstarter Pty Ltd [2012] QCATA 71

Tamawood Limited v Paans [2005] QCA 111

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 (QCAT Act).

REASONS FOR DECISION

1. This matter involved the review of a decision made by the QBSA refusing to pay Mr Fenwick the amount of $176,563.00 from the Queensland Home Warranty Scheme operated by the QBSA, after Mr Fenwick’s builder failed to complete building works at Mr Fenwick’s home and went into liquidation.  Member Cotterell found in favour of Mr Fenwick, and ordered that the QBSA pay the amount sought to Mr Fenwick.  In relation to costs, Member Cotterell ordered that the QBSA pay Mr Fenwick’s costs from 23 July 2008 until 19 May 2009 on a standard basis and pay indemnity costs for the period from 19 May 2009 onward, using the District Court Scale as agreed or as assessed.

2. The QBSA sought leave to appeal from the learned Member’s decision, and were subsequently granted leave for the limited purpose of addressing a mathematical error in the calculation of the amount the Tribunal determined was to be paid by the Statutory Insurance Fund to Mr Fenwick.  In all other grounds, the QBSA were wholly unsuccessful in their appeal. 

3. The application now before the Tribunal is in relation to costs.  The Tribunal has received submissions from both the QBSA and Mr Fenwick.

4. With respect to the $11,000.00 mathematical error for which leave was granted, this mistake was conceded by Mr Fenwick.  For this reason, I cannot see a basis upon which the granting of leave for this limited purpose should affect the ultimate success of Mr Fenwick’s costs application.

5. The costs awarded to Mr Fenwick are a re-instatement of those awarded by Member Cotterell and we see no basis for amending these orders. 

6. The QCAT President, in Lyons v Dreamstarter Pty Ltd [2012] QCATA 71 (citations omitted), had the following to say about legal costs in QCAT:

   “[6] Under the QCAT Act the usual position is that parties will bear their own costs: s 100. That provision contains, however, an introductory phrase (‘Other than as provided under this Act or an enabling Act...’) and, as the Deputy President identified in her decision in Mr Lyon’s appeal, there is a relevant enabling Act which applies to the dispute here and contains a provision about costs: s 77 of the Queensland Building Services Authority Act 1991 which, in s 77(2)(h) gives the Tribunal a power to award costs.

   [7] As the learned Deputy President also identified, this is what ss 6 and 7 of the QCAT Act refer to as a ‘modifying provision’ and it prevails over the provision of the QCAT Act which must therefore be read, with any necessary changes, as if the modifying provision was part of the QCAT Act.

   [8]The effect, as the learned Deputy President went on to say, is to give QCAT a broad general power to award costs in cases caught by these enabling provisions which, in the case of s 77(2)(h), is to be exercised ‘judicially’.

   [9] In building cases that have elements of complexity, the Queensland Court of Appeal has suggested that costs awards will not be surprising.  That case concerned, however, costs provisions in different legislation governing QCAT’s predecessor Tribunal.

   [10] In any event, the power to award costs under the QBSA Act, while expressed in succinct terms, indicates that the question of costs is to be addressed in markedly different terms from s 100 of the QCAT Act.”

7. The awarding of costs is discretionary.  The usual order is that the successful party is entitled to costs.  The QBSA can be viewed, as a consequence of Mr Fenwick’s concession on the error relating to the $11,000.00, as having been wholly unsuccessful in the Tribunal.

8. Another factor to be taken into account is the strength of the applicant’s case on appeal.  Our reasons demonstrate that the Authority had little prospect of success on the appeal.  Also that Mr Fenwick has been put to considerable expense and delay in having this matter finally determined.

9. In the circumstances we consider that the Authority should pay Mr Fenwick’s costs on a standard basis.

ORDERS

1. The QBSA must pay Mr Fenwick’s costs of and incidental to the application for leave to appeal or appeal on a standard basis on the District Court scale as might be agreed between the parties.

2. Should the parties fail to agree on costs Mr Fenwick must file in the Tribunal and give to the Authority a short form assessment of costs prepared by a costs assessor by 30 November 2012.

3. The application for costs will be listed for hearing on a date to be advised to the parties for the Tribunal to fix the amount of costs payable to the respondent.