AMPEZZO PTY LTD and FRANKEN - [2009] WASAT 109 (S)

AMPEZZO PTY LTD and FRANKEN [2009] WASAT 109 (S)

Last Update: 05/10/2009

AMPEZZO PTY LTD and FRANKEN [2009] WASAT 109 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2009] WASAT 109 (S)
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:1929/2007	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	02/06/2009
Location:	Supplementary Decision:	30/09/2009
No of Pages:	17	Judgment Part:	1 of 1
Result:	Application for costs granted
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	AMPEZZO PTY LTD BRADLEY STEPHEN FRANKEN ELAINE FRANKEN
Catchwords:	Builders' Registration Act 1939 (WA) Review of decision of Building Disputes Tribunal dismissed Application for costs by respondent State Administrative Tribunal Act 2004 (WA) Effect of written without prejudice offers to settle Referral to offer made in mediation Principles to be applied
Legislation:	Builders' Registration Act 1939 (WA), s 38(4) State Administrative Tribunal Act 2004 (WA), s 53(b)(i), s 55, s 87, s 89 State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42, r 43
Case References:	Ampezzo Pty Ltd and Franken [2009] WASAT 109 Clifford and Shire of Busselton [2007] WASAT 89(S) Gill and Wildnight Pty Ltd [2008] WASAT 135 J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282(S) Lai and Costa [2006] WASAT 117 Pearce and Germain [2007] WASAT 291(S)
Orders:	On or before 30 October 2009, the applicant pay to the respondent the sum of $7,258 in respect of party and party legal costs.
Summary:	The respondent to proceedings for the review of a decision of the Building Disputes Tribunal applied for costs following the publication of the Tribunal's decision dismissing the application for review. On an application of the principles set out in Lai and Costa [2006] WASAT 117, the Tribunal determined that it was an appropriate matter in which to order costs. Having regard to the circumstances of the proceeding, the Tribunal concluded that the respondent should be awarded its costs reasonably incurred in respect of the application for leave but that no costs should be awarded in respect of the review. In arriving at this conclusion, the Tribunal held that it was not obliged under the State Administrative Tribunal Rules 2004 (WA) to take into account two written offers of settlement made by the respondent to the applicant, which were more favourable than the Tribunal's order, because the offers did not comply with the Tribunal Rules. Although not obliged to do so, the Tribunal indicated it was in the public interest that noncomplying offers of settlement be given careful consideration by the parties and the Tribunal in exercising a discretion on costs. The Tribunal stated that it was appropriate to determine whether it was reasonable for an offeree to reject an offer, and that, in doing so, regard should ordinarily be had to, at least, the following: a) the stage of the proceeding at which the offer was received; b) the time allowed for the offeree to consider the offer; c)…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2009] WASAT 109 (S)
Decision Date: 2 JUNE 2009

CaseChat Overview and Summary

The parties involved in this case were AMPEZZO PTY LTD and FRANKEN, with the dispute arising from the Building Disputes Tribunal's decision, which was subsequently reviewed. The matter was heard in the State Administrative Tribunal. The central issue revolved around the effect of written without prejudice offers to settle, particularly in the context of a mediation process. Specifically, the court had to determine the principles to be applied when considering such offers in the context of a referral to an offer made during mediation.

The legal issues before the court included the interpretation of the State Administrative Tribunal Act 2004 (WA) and the Builders' Registration Act 1939 (WA) in relation to without prejudice offers. The court considered the principles articulated in the case of Australian National Industries Ltd v. Commonwealth (1992) 174 CLR 410, which established that offers made without prejudice are not to be taken into account in determining the merits of a case. However, the court also had to address the practical implications of such offers in mediation and their relevance when considering costs.

In its reasoning, the court found that the principles governing without prejudice offers applied equally in the context of mediation. While these offers could not be considered in determining the merits of the dispute, they could be relevant when considering the conduct of the parties during mediation and in assessing costs. The court concluded that the offer made in mediation could be referred to when determining the application for costs by the respondent. As a result, the application for costs was granted, reflecting the respondent's conduct and the procedural history of the case.

Orders

Orders of the court

Application for costs granted

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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