Queensland Civil and Administrative Tribunal Act 2009, s 105

Queensland Civil and Administrative Tribunal Rules 2009, r 86

Mr Gary Amory represented by Mr A Raeburn of Connolly Suthers

Queensland Building Services Authority represented by Mr E Bird from QBSA (in house solicitor)

[1] The Applicant has withdrawn its application and the Respondent has requested the Tribunal to award costs in the Respondent's favour.

[2] Mr Bird for the Respondent made the following submissions as to why costs should be awarded in the Respondent's favour:

1. The affidavit of Steven John Boland sworn 22 March 2012 was admitted into evidence. In that affidavit the Respondent made an offer to settle to the Applicant by email directed to the Applicant on 1 November 2011. That offer was open for a period of 14 days. The Applicant did not respond to the offer.

2. That offer was an offer to settle the matter on the basis that the Application for Review be dismissed and there be no order as to costs.

[3] Rule 86 of the Queensland Civil and Administrative Tribunal Rules 2009 relevantly provides that:

1. Additional power to award costs if particular offers to settle are rejected.

1. A party to a proceeding, other than a proceeding for a minor civil dispute, makes another party to the proceeding a written offer to settle the dispute subject of the proceeding; and

2. The other party does not accept the offer within the time the offer is open; and

1. In the opinion of the Tribunal, the decision of the Tribunal in the proceeding is not more favourable to the other party than the offer.

1. The Tribunal may award the party who made the offer all reasonable costs incurred by that party in conducting the proceeding after the offer was made.

1. In deciding whether a decision is or is not more favourable to a party than an offer the Tribunal must:

1. Take into account any costs it would have awarded on the date the offer was given to the other party; and

2. Disregard any interest or costs it awarded relating to any period after the date the offer was given to the other party.

[4] The Respondent is seeking:

1. $9,500 in costs incurred by appointing external lawyers. The actual cost was greater than $12,000 but due to an arrangement with those external lawyers the Respondent's costs were capped at $9,500.

2. Item 14(a)(ii) of the District Court scale of costs in the sum of $880; and

3. Actual costs incurred in attending the hearing (item 14(a)(iv) of the District Court Scale) in the sum of $1,615.

[5] In addition to the above costs, it was submitted that the Respondent's internal costs of attending the hearing, preparation for hearing and causing witnesses to attend meant that the Respondent's total costs exceeded $13,000 but that the Respondent was requesting $11,000 in total.

[6] The additional power to award costs pursuant to section 105 of the Act in rule 86 is separate and distinct from the costs provisions in sections 100 and 102 of the QCAT Act where the Tribunal has restricted power to make costs orders "in the interests of justice".

[7] The Respondent also submitted that this was an application for costs under section 105 of the QCAT Act and rule 86 of the QCAT Rules and that the Tribunal ought to be satisfied that section 102 was not relied on for the purposes of making this order. Section 100 relevantly provides that each party to a proceeding must bear their own costs unless otherwise provided by the QCAT Act. The Respondent did make secondary submissions as to whether it would be appropriate to order costs under those provisions in any event, but for the reasons set out below I do not need to address those.

[8] It was submitted on behalf of the Applicant that an order for costs should not be made because there was merit in the Application. A trustee has now been appointed to manage the Applicant's affairs and his financial position was such that he was not able to proceed with the Application.

[9] He also submitted that the Applicant was under the impression that steps were being taken on his behalf by his previous lawyers and that the reason various orders and directions were not complied with was that the Applicant was under the impression that his solicitors would comply with those on his behalf. Even if this were correct at all material times, the offer to settle was made directly to the Applicant.

[10] Mr Raeburn for the Applicant agreed that whilst that sum was not excessive it appeared that the Respondent was seeking indemnity costs in respect of the external lawyers' costs.

[11] The main thrust of the submissions for the Applicant were to the effect that it would not be in the interests of justice to award costs in this matter. The submissions contemplated the provisions of section 102 of the QCAT Act. Notwithstanding the reasons given below for awarding costs, the Tribunal would have formed the view that costs were payable under section 102 in any event. There was ample opportunity for the Applicant to withdraw the Application prior to the date for hearing. Limited resources of both the QBSA and the Tribunal ought not be wasted.

[12] I accept the Respondent's submission that the combined effect of section 105 of the QCAT Act and rule 86 of the QCAT Rules provides the Tribunal with power to order costs separate and distinct from the normal considerations of sections 100 and 102. It is appropriate in these circumstances to make an award for costs in favour of the Respondent.

[13] The initial offer to settle was sent to and received by the Applicant personally. No response was received. This is exactly the circumstance contemplated by section 105 and rule 86.

[14] Rule 86(1)(c) has been satisfied. The offer to settle was that the Application be dismissed and there be no orders to costs. Had the hearing proceeded, that is the best position that the Applicant could have achieved. I have had regard to rule 86(4) in reaching this decision. On the date the offer was made to the Applicant it was unlikely that a costs order would have been made against the Applicant if the Applicant had prosecuted its Application diligently and complied with all directions of the Tribunal. No costs order has been made or interest awarded since the date the offer was made.

[15] The Tribunal is satisfied that the decision of the Tribunal to dismiss the Application by consent is not more favourable to the Applicant than the offer to settle made on 1 November 2011.

[16] Rule 86(2) provides that the Tribunal may award "all reasonable costs". It is not submitted on behalf of the Applicant that the external solicitors' fees are unreasonable and the Tribunal finds them to be reasonable in the circumstances, particularly where a discount from the actual costs incurred has been applied. The other items claimed by the Respondent were not disputed.

[17] The Tribunal orders the Applicant pay the Respondent's costs in the sum of $11,000.