[3] The tribunal may make an order for security for costs having regard to[1]:

1. The financial circumstances of the parties.

2. The prospects of success or merits of the proceeding.

3. The genuineness of the proceeding.

4. Anything else the tribunal considers relevant.

[4] Dr Brodie and Ms Holt have submitted that the material demonstrates GBC has no capacity to meet a costs order if the tribunal makes one. They correctly point out that the company has a paid up share capital of $1 and has three registered charges. They submit that a proper reading of GBC's balance sheet as at 12 September 2011 show that the company is technically insolvent as its current liabilities exceed its current assets by a significant degree.

[5] As evidence of its ability to meet a costs order GBC relies upon: the fact that it has recently renewed its QBSA licence; the deed of covenant and assurance that the sole director, Mr Black, provided to the QBSA; and that there is over $50,000 of retention money in a joint account in the name of GBC and Dr Brodie and Ms Holt.

[6] Section 109(4)(a) of the Queensland Civil and Administrative Tribunal Act 2009 is very different in terms from Rule 671(a) of the Uniform Civil Procedure Rules and for good reason. The tribunal is not a court. It has a specific statutory obligation to deal with matters in a way that is accessible, fair, just, economical, informal and quick.[2] It must encourage the early and economical resolution of disputes.[3] It must ensure that proceedings are conducted in an informal way that minimises costs to parties and is as quick as is consistent with achieving justice.[4] It must act with as little informality and technicality and with as much speed as proper consideration of the matter before it permits[5]. Those imperatives are not met by applying a requirement, as does rule 671(a), that impecunious corporate plaintiffs will have to provide security for costs before they can seek the assistance of the tribunal.

[7] The tribunal must look to the financial circumstances of both parties. Dr Brodie and Ms Holt have provided no evidence of their ability to absorb the costs of the dispute. They have not demonstrated that, like the plaintiff in the often-quoted case of Tamawood Ltd v Paans[6] any success in the proceedings would be nullified by the costs necessarily spent in obtaining that result.

[8] The evidence about GBC's ability to meet a costs order is equivocal. Of itself, GBC's financial position does not persuade me that an order for security for costs is appropriate.

[9] Dr Brodie and Ms Holt submit that GBC's prospects of success are so arguably poor they are "hopeless" as the claim is based upon variations the claims for which do not conform to the requirements of the contract.

[10] An examination of GBC's claim shows that this is not just a claim for payment of variations that may not have been authorised in accordance with the contract or the Domestic Building Contracts Act 2000. GBC also requires a determination of some extension of time claims and whether Dr Brodie and Ms Holt repudiated the contract. GBC also says that Dr Brodie and Ms Holt have not paid the contract price, a matter which is conceded, but explained, by them.

[11] I am not persuaded that GBC's prospects of success are poor. As with most building disputes, there is probably fault on both sides and the order of the tribunal, if it gets that far, may reflect that.

[12] Dr Brodie and Ms Holt say that GBC's claim is not genuine because the "receivables" shown in its balance sheet is less than the amount claimed, so it follows that GBC has no confidence that its claim will succeed.

[13] There are lots of reasons why the present proceedings may not be reflected in GBC's accounts, most of which will be accounting and fiscal reasons. I am not prepared to make the assumption that a balance sheet as at 11 September 2011 accurately reflects the prospects of success in a proceeding filed 11 days earlier.

[14] "Genuineness" cannot be the same test as "prospects of success". GBC's claim is not a wholly fanciful claim. It is based on a contract executed by the parties and on work done by GBC for Dr Brodie and Ms Holt. There is no evidence to suggest that the proceeding has been brought for an improper purpose or, indeed, for any purpose other than to resolve the obvious dispute that exists between the parties.

[15] While it is true that there is a broad discretion in the tribunal to award costs in building disputes[7] that does not necessarily mean that the successful party in this proceeding will, as a matter of course, be given the costs of the proceeding.

[16] The tribunal has a wide range of tools at its disposal to reduce the time and expense of hearings. To meet its statutory imperative of being accessible, fair, just, economical, informal and quick, the tribunal is committed to ADR. The tribunal regularly refers building disputes to expert conclaves and it also has the power to appoint assessors. Against this background, I am troubled by an assertion from Dr Brodie and Ms Holt's lawyer that determination of the proceeding is likely to take 10 days of hearing time when no statements have been filed and the parties have not yet attended their first compulsory conference. It is appropriate to restate a comment I made at the outset; the tribunal is not a court. The parties should not expect this dispute to proceed as if they were before a court.

[17] That leads me to the central point of my concern. The file in this proceeding is already several inches thick. There has been: an application for leave for legal representation; an application for an interim order or injunction; a dispute about the costs of the application for an interim order; and an application for particulars all brought by Dr Brodie and Ms Holt.

[18] The parties may wish to continue these proceedings in an unnecessarily adversarial role but it is not something that the tribunal will condone or encourage. As I have previously noted[8], the privilege of legal representation in the tribunal does not come without obligation. The lawyers' obligation is to assist the tribunal in providing accessible, fair, just, economical, informal and quick dispute resolution. That necessarily requires the lawyers to concentrate of the merits of the dispute rather than positional skirmishes. The conduct of the proceedings to date leaves me with the impression that these preliminary skirmishes have been designed to waste costs and cause delay. The addition of an order for security for costs may prevent GBC having any effective access to the tribunal. It is not in the interests of justice to allow the manipulation of tribunal procedure in this way.

The application for further and better particulars

[19] Dr Brodie and Ms Holt say that, until GBC provides particulars of its claim: they cannot prepare for the compulsory conference; they are deprived of an opportunity to amend their response; and the resolution of the matter is inordinately delayed.

[20] The tribunal does not require pleadings. The essential elements of a party's case are often provided by the witness statements filed in support of the claim. One of the purposes of a compulsory conference is to identify and clarify the issues in dispute in the proceeding[9] and to identify the questions of fact and law to be decided by the tribunal[10]. Neither of these steps has been undertaken in this proceeding yet.

[21] The tribunal is concerned to ensure that each party to a proceeding understands the nature of assertions made against them and the legal implications of the assertions.[11] It is clear from all the material filed to date that Dr Brodie and Ms Holt do understand the nature (if not the detail) of the assertions made against them and the legal implications of those assertions.

[22] I do not accept that Dr Brodie and Ms Holt cannot prepare for the compulsory conference without particulars being provided. One of the discussions for the compulsory conference, presumably, may be an articulation of what issues are in dispute and how they might be resolved. Dr Brodie and Ms Holt do not need the precise detail of GBC's claim to engage in a debate about the way that this dispute will be handled and how it might be determined without lengthy delay and inordinate expense. The application for further and better particulars is overly technical, premature and not compatible with the tribunal's emphasis on ADR or the speedy and efficient disposition of disputes. The application should be dismissed.

[23] The matters to be considered when the tribunal is asked to make an order for security for costs are different from those considered by a court pursuant to the Uniform Civil Procedure Rules. The tribunal should be slow to make an order that will impede a party's access to accessible, fair, just, economical, informal and quick dispute resolution. Dr Brodie and Ms Holt have not explained their financial position and I am not persuaded that GBC will not have the capacity to pay a costs order. GBC's claim is not, on its face "hopeless" and there is no evidence to suggest that it is not a genuine claim.

[24] The application for security for costs should be dismissed.

[25] The application for further and better particulars is an overly technical approach to dispute resolution, given the tribunal's emphasis on ADR and quick and accessible justice. The parties will have the opportunity to identify the issues, questions of fact and law that need the tribunal's attention at the compulsory conference in February. The application for particulars should also be dismissed.

[1] Section 109(4) Queensland Civil and Administrative Tribunal Act 2009.

[2] Section 3(b) QCAT Act

[6] [2005] QCA 111.

[7] Section 77 Queensland Building Services Authority Act 1991, Lyons v Dreamstarters Pty Ltd [2011] QCATA 142.

[8] F.K. Gardner & Sons Pty Ltd v Grant [2010] QCAT 585.