Rex v Barry Martin t/as Barry's Tiling [2026] QCAT 156

[3] On 30 October 2025, the Applicants filed an Application for miscellaneous matters ('the application') seeking orders that the Respondent provide security for costs. The orders are sought pursuant to one or more of ss 109, 62(1) and s 102 of the Queensland Civil and Administrative Tribunal Act 2009 (Qld) ('the QCAT Act') and s 77(3)(h) of the Queensland Building and Construction Commission Act 1991 (Qld) ('the QBCC Act').

(a) the Respondent be directed to provide security for costs in the sum of $20,000.00, or such other amount and form as determined by the Tribunal;

(b) such security be provided within fourteen (14) days of the Tribunal's order;

(c) in default of compliance, the Respondent's defence be dismissed;

(d) the Tribunal reserve the Applicants' right to seek further costs arising from this application or subsequent proceedings.

[6] The circumstances in which the application is brought is an uncommon one given that it is an application brought by an applicant against a respondent.

[7] Section 109 of the QCAT Act provides for the making of an order for security for costs. Section 109 provides:

(1) This section applies if, under this Act or an enabling Act, the tribunal may award a party's costs for a proceeding.

(2) On the application of a party (applicant party) to the proceeding against whom a claim is made or an outcome or decision sought in a proceeding, the tribunal may make an order -

(a) requiring another party to the proceeding to give security for the applicant party's costs within the period stated in the order; and

(b) staying the proceeding, or the part of the proceeding against the applicant party, until the security is given.

(3) If the security is not given within the period stated in the order, the tribunal may make an order dismissing the proceeding, or the part of the proceeding against the applicant party.

(4) In deciding whether to make an order under subsection (1), the tribunal may have regard to any of the following matters -

(a) the financial circumstances of the parties to the proceeding;

(b) the prospects of success or merits of the proceeding or the part of the proceeding against the applicant party;

(c) the genuineness of the proceeding or the part of the proceeding against the applicant party;

[8] Subsection 109(2) provides for the making of an application by a party to the proceeding 'against whom a claim is made or an outcome or decision sought in a proceeding'. In the ordinary course, I consider that a claim is not made by, or an outcome or decision is not sought by, a respondent to an application where the respondent does not file a counter-application. However, in the present case, the Response and/or Counter-application filed by the Respondent on 14 September 2023 includes in Part D (Details of Counter-application) that the Respondent wants the Tribunal to make orders, first, dismissing the Application and, second, that the 'Applicant' is to pay the Respondent's cost pursuant to s 102 of the QCAT. In my view, it was strictly unnecessary for the Respondent to seek such orders by way of Counter-application. However, having done so, I will proceed on the basis that the requirements of s 109(2) have been satisfied. I note that the Respondent does not contest the power of the Tribunal to make an order for security for costs.

[9] In any event, I am satisfied that the powers of the Tribunal under s 62 of the QCAT Act are sufficiently broad to encompass the making of directions providing for the provision of security for costs in an appropriate case.

[10] I find it unnecessary to decide whether the Tribunal also has inherent power to make an order for security for costs having regard to, first, that the Tribunal is a court of record,[1] and second, the observations of Sofronoff P in Powell & Anor v Queensland University of Technology & Anor,[2] in the context of the Tribunal's inherent power to punish for contempt.[3]

[11] I reject the Applicants' submission that each of s 102 of the QCAT Act and s 77(3)(h) of the QBCC Act provides power for the Tribunal to make an order for security for costs. Each provision is concerned with the power to make an order for costs of the proceeding and does not concern making of an order for security for costs.

[12] I now turn to the merits of the Application.

[13] The relevant considerations are identified in s 109(4) and include the catch-all 'anything else the tribunal considers relevant'.

[14] In Adeva Home Solutions Pty Ltd v Queensland Motorways Management Pty Ltd,[4] Bond JA said the following in relation to r 670(1) of the Uniform Civil Procedure Rules 1999 (Qld) which provides for the making by the court of an order for security costs:[5]

... r 670(1) UCPR empowers the Court to "order the plaintiff to give the security the court considers appropriate for the defendant's costs of and incidental to the proceeding". Those words make evident that the purpose of the power is to afford a defendant "appropriate" protection against the risk of nonrecovery of its costs, in the event it is ultimately successful. Historically, appropriate protection has been regarded as ensuring the availability of a fund within the jurisdiction against which a costs judgment could be enforced by a successful defendant.

1. In the context of the present case (involving an application for security for costs against a respondent), I consider that the following observations by Kenny and Edelman JJ in Commissioner of Taxation v Vasiliades ('Vasiliades')[6] to be apposite:

... Generally speaking, a party bringing proceedings chooses to institute proceedings after considering the advantages and disadvantages of doing so (including the likelihood of recovering costs from the defendants). In instituting proceedings, a party assumes the risk of being unable to recover costs from those who are sued. The parties against whom proceedings are brought are not respondents by choice but because someone else has chosen to sue them. As noted, the purpose of an order for security is to ensure that there is a fund available for the benefit of a successful respondent, to mitigate the injustice that would arise if a successful respondent, who has not chosen to incur the expense of the litigation, cannot recover costs from the party who chose to bring the proceedings in the first place. The policy of the law in this regard is related to the accepted understanding in Australian courts that normally costs follow the event. It follows from this that an order for security for costs is generally made against a person who brought the proceeding, however named on the record, and is generally not made against a respondent (although, again, this may not be a hard and fast rule: cf Ritter v North Side Enterprises Pty Ltd (1975) 132 CLR 301 at 305; 6 ALR 125 at 127.)

The financial circumstances of the parties to the proceeding

[16] As the Respondent's financial circumstances, the Applicants rely upon statements or admissions that the Respondent lacks a financial capacity to satisfy any judgment or costs order that may be made against him.[7]

[17] Notwithstanding this submission, the Applicants also submit:[8]

(a) that '... the Respondent's claims of financial hardship are inconsistent with the available evidence.';

(b) the sale of the Respondent's residential property 'indicates a solid financial position and access to considerable funds during the currency of these proceedings';

(c) that the Respondent has not provided evidence of significant liabilities, encumbrances, or other financial obligations that would have negated the proceeds of that sale;

(d) that the Respondent would have 'ample opportunity to continue securing work as a trade assistant' and that the Respondent would 'reasonably be expected to generate sufficient earnings to meet ordinary financial obligations, including any judgement or costs order made by the Tribunal'.

[18] If the submissions in [17] above were accepted, I would not be satisfied that the Applicants have established that there is a sufficient risk of non-recovery in the event that an order for costs was made in favour of the Applicants in the proceeding.

[19] However, the Respondent, by his Solicitors, submits:[9]

[12] The Respondent was a sole trader operating a small tiling business. As set out in his affidavit, he has modest income, no significant assets, and limited access to credit. The respondent is now retired and only [sic] income is from Services Australia.

[13] Relevantly, the Respondent's work and earnings were substantially disrupted during and after the COVID-19 pandemic, and he continues to experience financial hardship.

[14] He does not possess sufficient funds to lodge security of the magnitude sought by the Applicants. Requiring him to do so would effectively terminate his right to defend the proceeding.

[20] In response to Directions from the Tribunal, the Respondent sought to clarify the reference to the affidavit in paragraph 12 of the submissions as follows:

1. Paragraph 1 of the Respondent's affidavit filed on 10 April 2024 records that the Respondent operated as a sole trader conducting a small tiling business. That position has been consistently maintained throughout the Respondent's affidavit material and submissions filed in these proceedings.

1. That affidavit was filed on 10 April 2024 by [the Respondent's solicitors].

1. Paragraph 12 of the submissions is affected by a clerical error in drafting. Properly construed, the paragraph was intended to convey that the Respondent's financial position arises from his status as a former sole trader operating a small business, as deposed to in his affidavit evidence.

1. Accordingly, paragraph 12 should be read as a permissible and accurate characterisation of the Respondent's financial circumstances, consistent with the affidavit evidence and the practical consequences arising from it.

[21] Whilst the Respondent has not adduced evidence detailing his financial position, I accept the submissions made on his behalf that the Respondent has modest income, no significant assets, and limited access to credit.

[22] The Applicants submit that they have suffered significant financial hardship as a direct result of the Respondent's (alleged) defective building work and subsequent failure to 'make restitution'; that they were required to 'self-fund' a complete bathroom renovation to restore their property to a habitable standard and return it to the rental market; that the cumulative effect of the circumstances is that the Applicants have been 'forced to divert personal and household resources' in order to meet to meet expenses said to be have 'directly caused' by the Respondent's (alleged) defective work; and that this has 'materially impacted their financial stability and created sustained economic hardship'.[10]

[23] Whilst the Applicants have not adduced evidence as to their current financial position and the financial impact on that position of rectifying the work alleged to be defective, I accept that the costs incurred by them have had a material detrimental impact on their financial position.

[24] At this interlocutory stage, and having regard to the importance of the expert evidence which will be subject to scrutiny at the final hearing, I consider that it is not appropriate to express any concluded view about the Applicants' prospects of success. However, I am satisfied, on the material filed, that the Applicants have, at least, a plainly arguable case.

[25] On the face of the Applicants' claim, the proceeding has been genuinely brought with a view to seeking compensation for what the Applicants consider to be defective work performed by the Respondent.

[26] Noting the observations in Vasiliades, the Respondent is not a respondent by choice and an order for security for costs is generally not made against a respondent. The Applicants' proceeding is not of a 'defensive nature'.

[27] I also consider it relevant that the Respondent is a natural person and there is no suggestion that he no longer resides in Australia. The Respondent may be subject to bankruptcy proceedings under the Bankruptcy Act 1966 (Cth), if a costs order were made in favour of the Applicants in the proceeding and the Respondent failed to meet such order.

[28] I also find that there is some prospect that the making of an order for security of costs may result in the Respondent being shut out from defending the proceeding.

[29] Having regard to the considerations identified above (particularly those set out in paragraphs [26] and [27] above), I consider that the Tribunal's discretion should be exercised to refuse to make an order for security for costs.

[30] The Application for miscellaneous matters filed by the Applicants on 30 October 2025 is dismissed.

[2] [2017] QCA 200; [2018] 2 Qd R 234.

[4] [2021] QCA 198; (2021) 9 QR 141.

[5] At [20] (Fraser JA and Wilson J agreeing).

1. [6] [2016] FCAFC 170; (2016) 344 ALR 558, [86]. See also Prynew Pty Limited & Anor v Nemeth & Ors [2010] NSWCA 94, [20].

[7] Applicants' submissions, [15]-[16].

[9] Respondent's Submissions filed on 6 January 2026, [12]-[14].

[10] Applicants' submissions, [20](b).