QUEENSLAND CIVIL AND 
ADMINISTRATIVE TRIBUNAL

CITATION:	Steve Bagnall Homes Pty Ltd v Foley & Anor [2022] QCATA 97	
PARTIES:	steve bagnall homes pty ltd	

(applicant/appellant)	

	V	
	ian foley
bernadette foley	

(respondents)	

APPLICATION NO/S:	APL342-18	
ORIGINATING APPLICATION NO/S:	BDL090-15	
MATTER TYPE:	Appeals	
DELIVERED ON:	4 July 2022	
HEARING DATE:	On the papers	
HEARD AT:	Brisbane	
DECISION OF:	Senior Member Brown
Member King-Scott	

ORDERS:	
1.	Steve Bagnall Homes Pty Ltd must pay Ian Foley’s and Bernadette Foley’s costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the District Court scale as if the matter had proceeded in that court.	
CATCHWORDS:	APPEAL AND NEW TRIAL – PROCEDURE – QUEENSLAND – POWERS OF COURT – COSTS – where the appeal tribunal refused leave to appeal – where the appellants appeal was dismissed – determining the costs of the appeal – costs in building disputes – where the discretion to award costs in a building dispute is exercised – where the parties agree costs should be assessed on the standard basis - where the appropriate scale of costs in dispute – where the appellant argued an issue in the proceeding was  a matter  of public interest - whether a reduction of costs should be awarded 
Queensland Building and Construction Commission Act 1991 (Qld)
Queensland Civil and Administrative Tribunal Act 2009 (Qld)
Oshlack v Richmond River Council (1998) 193 CLR 72
Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders [2022] QCATA 8
Williams v Lewer [1974] 2 NSWLR 91	
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)	

	

	

REASONS FOR DECISION
[1]	This is a decision about the costs of the appeal proceedings. The Appeal Tribunal refused leave to appeal and dismissed the appeal by the appellant.
[2]	The appellant concedes that the appropriate order is that, subject to one issue, the respondents should have their costs of the appeal. 
[3]	The appellants say that it should not be required to pay the costs associated with the roofing material issue. The appellant says that the issue related to a question of general importance, the determination of which was to the public advantage. This is said to arise from the interpretation by the Appeal Tribunal of particular provisions of the Building Code of Australia which may assist builders and consumers in determining the appropriate environmental category of a dwelling and the appropriate roofing material for the conditions. 
[4]	The appellant says that the roofing issue constituted approximately 50% of the total amount of the quantum in dispute and took up a significant proportion of written and oral argument. The costs it should be ordered to pay, says the applicant, should be reduced by 25%. 
[5]	As to the appropriate scale of costs, the appellant says that costs should be assessed on the standard basis on the Magistrates Court scale. 
[6]	The respondents say that the appellant should pay their costs of the appeal, without reduction in respect of the roofing material issue, to be assessed on the standard basis on the District Court scale. 
Consideration
[7]	The position in relation to costs in appeal proceedings relating to building disputes was summarised by the appeal tribunal in Steven Bryan Worthington t/as Worthington Simmons Builders v Dr Andrew William Ryan; Dr Andrew William Ryan v Steven Bryan Worthington t/as Worthington Simmons Builders:
[18] Costs in building dispute proceedings, including appeals, are governed not by the Queensland Civil and Administrative Tribunal Act 2009 (Qld) but by the Queensland Building and Construction Commission Act 1991 (Qld). 
[19] The discretion to award costs in building dispute proceedings must be exercised judicially, not upon irrelevant or extraneous considerations but upon facts connected with or leading up to the litigation. The exercise of a discretion ‘judicially’ means for reasons that can be considered and justified. 
[20] Costs do not follow the event in building dispute proceedings. However, success in a proceeding and the degree of success, particularly one involving complex litigation, are relevant considerations in the exercise of the discretion to award costs. A party’s success may be a significant factor in an application for an order for costs. 
[21] The extent to which success in a proceeding may be eroded if a party is required to bear their own costs was considered by the Queensland Court of Appeal in Tamawood Ltd & Anor v Paans:  
If orders for costs were not to be made in favour of successful parties in complex cases, then just claims might not be prosecuted by persons who are unable to manage complex litigation by themselves. Such a state of affairs would truly be contrary to the interests of justice; and an intention to sanction such a state of affairs cannot be attributed to the legislature which established the Tribunal. (footnotes omitted)
[8]	The starting point in the consideration of the costs of the appeal is that the respondents were entirely successful and the appellant entirely unsuccessful. The respondents should therefore have their costs. The parties are in agreement that costs should be awarded on the standard basis. They disagree as to the appropriate scale. 
[9]	The amount of the final decision in the proceedings at first instance was within the jurisdiction of the District Court. The appellant was ordered to pay the respondents’ costs of the proceedings below on the standard basis to be assessed on the District Court scale. It is appropriate that the respondents’ costs of the appeal be assessed on the District Court scale.
[10]	Should there be any reduction in the costs payable by the appellant? Having found that the respondents should be entitled to recover their costs of the appeal we must consider whether it is appropriate to exercise our discretion to deprive the respondents of part of their costs. That discretion must be exercised judicially and “according to rules of reason and justice, not according to private opinion … or even benevolence … or sympathy”.
[11]	The appellant says that the costs payable by it should be reduced by 25% on the basis that the roofing material issue was a matter of general importance and of significance to persons more broadly and not confined to the parties to the proceedings. 
[12]	In Rinehart v Welker it was stated:
The second reason (for submitting that there should be no order for costs) was that the question before the Court was of great importance, given the divergence of authority on the proper tests to be applied in granting a stay in circumstances such as those before the Court in this case. Whilst it is true that there was a divergence of authority, the fact remains that the arguments brought on behalf of Mrs Gina Rinehart were unsuccessful. The importance of the matter does not, in my view, provide a basis for refusing costs to the successful party in private litigation in the nature of that in question here.
[13]	In Oshlack v Richmond Rover Council McHugh J stated:
The possibility of adverse costs orders may well inhibit some individuals and groups from bringing cases to court which involve challenges to aspects of public law. Express recognition of this fact does not, however, mean that the courts should remove this inhibition by adopting a practice of declining to follow the usual order as to costs in cases of "public interest litigation". Whether or not one regards a particular applicant's actions as well-intentioned and striving, albeit unsuccessfully, to serve some perceived public interest, the respondent still faces real costs from having to defend the proceedings successfully. The applicant had a choice as to whether or not to be a party to the relevant litigation. The respondent typically had no such choice. The legislature has chosen not to protect such applicants from the affects of adverse costs orders, whether by an express statutory exemption or the creation of some form of applicants' costs fund. In such circumstances, one may well feel some sympathy for the plight of the unsuccessful applicant. But sympathy is not a legitimate basis to deprive a successful party of his or her costs.
[14]	While we accept that the issue relating to the roofing material was of significance to the parties it does not provide a basis for refusing to award costs to the respondents. Firstly, the respondents had no choice but to be parties to the appeal proceedings.  Secondly, there was no element of ‘public interest’ (as referred to by McHugh J in Oshlack) in the appeal proceedings as they related to the roofing material issue. Thirdly, the fact remains that the appellant was unsuccessful on the roofing material issue. 
[15]	In all the circumstances there is no basis to deprive the respondents of any part of their costs.
Orders
[16]	The appellant must pay the respondents’ costs of the appeal on the standard basis to be agreed or failing agreement to be assessed on the District Court scale as if the matter had proceeded in that court.