QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Kernohan Construction Pty Ltd v Gillham [2023] QCAT 231	
PARTIES:	Kernohan Construction Pty Ltd t/as Kernohan Construction	

(applicant)	

	v	
	Austin GilLham	

(respondent)	

APPLICATION NO/S:	BDL116-15	
MATTER TYPE:	Building matters	
DELIVERED ON:	23 June 2023	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Member Deane	
ORDERS:	1.	The applications for costs are dismissed.
2.	Each party must bear their own costs of and incidental to the application and counter-application.	
CATCHWORDS:	PROCEDURE – CIVIL PROCEEDINGS IN STATE AND TERRITORY COURTS – COSTS – GENERAL MATTERS – POWER TO AWARD GENERALLY – STATUTORY BASIS GENERALLY – where contractor partly successful against homeowner – where homeowner partly successful against contractor – where small net amount payable to contractor - where settlement offers made 
Queensland Building and Construction Commission Act 1991 (Qld), s 77
Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 48, s 100, s 102, s 105
Queensland Civil and Administrative Tribunal Rules 2009 (Qld), r 86
Campbell v Queensland Building and Construction Commission [2021] QCATA 34
Gillham v Kernohan Construction Pty Ltd [2022] QCATA 19
Gillham v Kernohan Construction Pty Ltd [2023] QCATA 64
Kernohan Construction Pty Ltd v Gillham [2019] QCAT 165
Lyons v Dreamstarter Pty Ltd [2011] QCATA 142	
APPEARANCES & REPRESENTATION:	
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
[1]	By decision delivered 14 June 2019 I ordered Mr Gillham to pay Kernohan Construction Pty Ltd t/as Kernohan Construction (the Builder) the amount of $12,747.56 (the Decision) and invited submissions on the question of costs to allow it to be determined on the papers.
[2]	Submissions were received.  Mr Gillham sought to appeal the Decision.  In those circumstances I directed that the question of costs was adjourned until the final decision of the matters in APL191-19 is made.
[3]	The Appeal Tribunal delivered the appeal decision on 14 January 2022 (Appeal Decision).  The Appeal Tribunal varied the Decision. The Appeal Decision is that Mr Gillham pay the Builder $1,934.78.  The Appeal Tribunal substantially confirmed the Decision other than in respect of the Builder’s entitlement to be paid for Variation 1.  The Appeal Tribunal recently delivered a further decision on 31 May 2023 which dismissed an application for re-opening, correction, renewal or amendment.
[4]	At the hearing before me, the Builder claimed payment of $78,588.32 from Mr Gillham for monies owing under the contract. Mr Gillham counterclaimed in the sum of $252,185.97 for breach of contract and breach of the provisions the Domestic Building Contracts Act 2000 (Qld).
[5]	The Builder submits that it ought to be awarded costs. There is evidence before me that it incurred $117,838.48 (incl GST).
[6]	Mr Gillham submits that he ought to be awarded costs. There is evidence before me that he incurred $360,193.89 (incl GST). This evidence shows that during the dispute and up to the hearing and the final hearing submissions he engaged three legal firms and a number of experts. 
[7]	I now proceed to decide the applications for costs on the papers.
[8]	It is a well-established principle that the Tribunal’s discretion to award costs in a building dispute is a broader and more general discretion than the one conferred by the QCAT Act. 
[9]	The Tribunal, in exercising its general discretion to award costs, may consider the matters referred to in section 102(3) of the QCAT Act.
[10]	Neither party developed in any significant way a submission that the other party acted in a way that unnecessarily disadvantaged it, as mentioned in section 48 of the QCAT Act.  Mr Gillham raised many items of dispute which required determination.  Some items were for as little as $20.  Many items were for less than $100.  He succeeded in establishing some of his claims and not others.  There is no sufficient evidence of disadvantage as contemplated by section 48 of the QCAT Act. This is not a factor in favour of an award of costs.
[11]	The final hearing was conducted over four days and lengthy submissions were subsequently filed.  My reasons for the Decision extend to some 83 pages due to the number of issues raised and disputed.  The nature and complexity of the dispute is a factor in favour of an award of costs.  
[12]	Each party has had some success in claims made and defended. The relative strength of some of the claims, which were successful, is a factor in favour of an award of costs but the relative strength of others, which were unsuccessful, is not a factor in favour of an award of costs.  The costs incurred have substantially eroded the benefit of successful claims for both parties.
[13]	The Appeal Decision awarded an amount of less than $2,000 to the Builder after offsetting amounts payable to Mr Gillham from the amount owed by Mr Gillham to the Builder.  
[14]	The financial circumstances of the parties is not a factor in favour or against an award of costs as there is no specific evidence before the Tribunal on this point.
[15]	The Tribunal may award costs where a party makes a written offer to settle the dispute, the offer is not accepted within the time the offer is open and in the opinion of the Tribunal the decision is not more favourable to the other party than the offer.  Even if the formal requirements to invoke this additional power are not met an offer to settle and whether it was unreasonably not accepted may be a relevant factor in the exercise of the discretion.
[16]	The Builder has provided evidence of two offers made. An offer made by the Builder on 31 August 2015 to resolve the proceedings on the basis it receive $58,588.29. This offer is not demonstrably more favourable to Mr Gillham than the Decision nor the Appeal Decision. 
[17]	The other was an offer by Mr Gillham to partially settle, made on the evening before the final hearing commenced, only open for acceptance until 9am on the following day, by which Mr Gillham required the Builder to pay him $36,400, to return to the property to perform a list of work but to have certain issues decided by the Tribunal and for the parties to bear certain of their own costs.  This offer is not demonstrably more favourable to the Builder than the Decision nor the Appeal Decision. 
[18]	I am not satisfied that either party was unreasonable in not accepting the offers having regard to the Decision or the Appeal Decision.  The offers are not a factor in favour of an award of costs.
[19]	Having regard to the above factors I am not satisfied that I should exercise my discretion to award costs to either the Builder or to Mr Gillham.
[20]	I find that each party must bear their own costs of and incidental to the application and counter-application.  The applications for costs are dismissed.