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Donovan Hill Pty Ltd v McNab Constructions Australia Pty Ltd [2015] QCA 114 (2014/7267) Margaret McMurdo P and Gotterson and Philippides JJA 23/06/2015

Full-text: QCA15-114.pdf

Catchwords

ADMINISTRATIVE LAW - QUEENSLAND CIVIL AND ADMINISTRATIVE TRIBUNAL – where the QBSA issued a number of directions to rectify to the respondent in respect of an apartment complex – where the respondent applied to the Commercial and Consumer Tribunal for review of the decisions to issue the directions – where the review proceedings became proceedings in QCAT as successor to the Commercial and Consumer Tribunal – where the respondent applied under s 42 of the QCAT Act for orders joining an array of entities as parties to each of the applications – where the applicant sought to be joined in each review proceeding under the name Donovan Hill Architects – where a member of QCAT ordered that the joinder application be dismissed with respect to all entities sought to be joined – where directions were made that any application for costs by QBSA or any of the proposed parties be filed by 18 January 2013 and that the costs applications be determined on the papers – where the applicant filed an application for costs – where three of the other proposed parties also applied for costs – where the Tribunal member made orders in respect of the applications on 20 August 2013 – where the respondent appealed against those orders and costs orders made in favour of two of the other proposed parties – where an Appeal Tribunal of QCAT allowed the appeal, set aside the costs orders and dismissed the costs applications of the applicant and the other two proposed parties – where a live issue in both the application before the member and the appeal to the Appeal Tribunal was whether QCAT has power to award costs to a person who successfully resists a joinder application – where the member concluded that QCAT was so empowered – where the Appeal Tribunal held that QCAT was not so empowered – whether the determination of a joinder application under s 42 is in exercise of QCAT’s original jurisdiction or its review jurisdiction – whether QCAT is empowered to award costs to a person whom a party to a proceeding in QCAT has unsuccessfully sought to join in the proceeding

Summary Notes

Application for Leave Queensland Civil and Administrative Tribunal Act – where the respondent to the present application, McNab Constructions Australia Pty Ltd, applied to the Commercial and Consumer Tribunal for a review of directions issued by the Queensland Building Services Authority requiring McNab Constructions to rectify alleged defects in building work concerning some Teneriffe apartments – where the QBSA issued a number of directions to rectify to the respondent in respect of an apartment complex – where the respondent applied to the Commercial and Consumer Tribunal for review of the decisions to issue the directions – where the review proceedings became proceedings in QCAT as successor to the Commercial and Consumer Tribunal – where the respondent applied under s 42 of the QCAT Act for orders joining an array of entities as parties to each of the applications – where the applicant sought to be joined in each review proceeding under the name Donovan Hill Architects – where a member of QCAT ordered that the joinder application be dismissed with respect to all entities sought to be joined – where directions were made that any application for costs by QBSA or any of the proposed parties be filed by 18 January 2013 and that the costs applications be determined on the papers – where the applicant filed an application for costs – where three of the other proposed parties also applied for costs – where the Tribunal member made orders in respect of the applications on 20 August 2013 – where the respondent appealed against those orders and costs orders made in favour of two of the other proposed parties – where an Appeal Tribunal of QCAT allowed the appeal, set aside the costs orders and dismissed the costs applications of the applicant and the other two proposed parties – where a live issue in both the application before the member and the appeal to the Appeal Tribunal was whether QCAT has power to award costs to a person who successfully resists a joinder application – where the member concluded that QCAT was so empowered – where the Appeal Tribunal held that QCAT was not so empowered – whether the determination of a joinder application under s 42 is in exercise of QCAT’s original jurisdiction or its review jurisdiction – whether QCAT is empowered to award costs to a person whom a party to a proceeding in QCAT has unsuccessfully sought to join in the proceeding – where the question of law on which the appeal to this Court would be made here is whether QCAT is empowered to award costs to a person whom a party to a proceeding in QCAT has unsuccessfully sought to join in the proceeding – where the applicant accepts that the only statutory provision which it may contend invests QCAT with power to award costs to it is s 102(1) – where a person who successfully resists a joinder application in exercise of QCAT’s review jurisdiction is not a party to the review proceeding under s 40(1) and therefore cannot benefit from a costs order under s 102(1) as “another party to the proceeding” – where the irresistible conclusion is that a joinder application is not a proceeding determined in QCAT’s original jurisdiction – where the applicant is not, and never was, a party in whose favour a costs order might be made under s 102(1) – where the perceived uneven-handedness may well be a legitimate basis for a call for an amendment to the legislation – where, however, it does not warrant an interpretation of s 40(1), or, for that matter s 10(1)(a), which not only would depart from the unambiguous language of the provision but also would require additional words to be read into it. Leave to appeal granted. Appeal dismissed. Costs

Uniform Civil Procedure Rules considered

Rule 765 — Nature of appeal and application for new trial