ARCHIBALD and INNES
[2024] WASAT 142 (S)
•5 MAY 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: ARCHIBALD and INNES [2024] WASAT 142 (S)
MEMBER: MR M BENTER, MEMBER
MS H PEDERSEN, SESSIONAL MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 5 MAY 2025
FILE NO/S: CC 1265 of 2023
BETWEEN: YVETTE ARCHIBALD
First Applicant
MICHAEL ADRIAN VAN RHYN
Second Applicant
AND
SCOTT INNES
Respondent
Catchwords:
Building service complaint - Costs - Conduct of parties - Turns on its own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49(1)
Legal Profession (Magistrates Court (Civil) Report 2022 (WA)
Legal Profession (Magistrates Court (Civil) Report 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 9(1), s 87(1), s 87(2)
State Administrative Tribunal Amendment Rules 2004 (WA), r 39B(5), r 39B(6)
Result:
Applicants' application allowed in part
Respondent's application dismissed
Category: B
Representation:
Counsel:
| First Applicant | : | N/A |
| Second Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| First Applicant | : | Vogt Legal |
| Second Applicant | : | Vogt Legal |
| Respondent | : | Dan Morris Legal |
Case(s) referred to in decision(s):
Archibald and Innes [2024] WASAT 142
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62
Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S)
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
Hoskins and Daniel Vinci T/as D'Vinci Contracting [2011] WASAT 188
REASONS FOR DECISION OF THE TRIBUNAL:
Background
On 16 December 2024, the Tribunal published its decision in Archibald and Innes [2024] WASAT 142 (the substantive decision) which concerned a building services complaint in respect of claimed defects in, and associated with, retaining walls built by the respondent on the applicants' property in Bullsbrook.
For the reasons set out in the substantive decision, the applicants were successful in part, with orders made by the Tribunal requiring the builder to:
(a)retro-fit bonding to the relevant retaining walls in the manner set out in the orders; and
(b)remedy major crack locations in the relevant retaining walls in the manner set out in the orders.
In respect of costs, the substantive decision stated as follows:
93In their closing submissions, the applicants submit that they should have liberty to apply for costs and, in effect, propose timetabling for that to occur.
94In light of all of the matters set out above, and particularly the specific findings made by the Tribunal, it is a matter for both parties to consider whether there is a basis for any costs application to be made. This may also turn to a degree on matters to which the Tribunal is presently not privy.
95In the circumstances, the Tribunal will order that any party seeking costs may make an application by filing written submissions within 35 days (noting the intervening holiday period) and for the other party, or parties, to file any submissions in response within a further 14 days.
Having considered their respective positions, both parties in due course lodged an application for costs in respect of the proceedings to be paid to them by the other party. Each party then responded to the other's costs application, such that the following costs submissions were received by the Tribunal:
(a)Applicants' submissions in support of costs, lodged on 20 January 2025;
(b)Respondent's submissions in support of costs, lodged on 20 January 2025;
(c)Applicants' submissions in response, lodged on 3 February 2025; and
(d)Respondent's submissions in response, lodged on 3 February 2025.
In considering the above submissions, the Tribunal noted that the expert fees claimed by the applicants in respect of Mr Waddell appeared to include only fees for his attendance at the expert conferral and final hearing, and not any amount in respect of the preparation of his expert report.
In order to ensure the Tribunal was properly informed as to the claimed expert fees, and to avoid any unnecessary delay, the applicants were given an opportunity to provide any additional information by 24 April 2025 in respect of any further amount claimed for the fees charged by Mr Waddell for the preparation of his expert report.
On 23 April 2025, the applicants lodged a covering letter and further invoices from Mr Waddell in support their claim for an additional sum of $2,200.00 in respect of Mr Waddell's fees for the preparation of his expert report, including the relevant site inspection.
The nature of the competing costs applications
The applications by both parties seek that the other pay to them both legal costs and fees charged by expert witnesses. The effect of the parties' respective responses are that they both contend that, in addition to an order being made in their favour, no costs order should be made against them as sought by the other party.
The applicants' submissions refer to various costs amounts claimed, including what is said to be an alternative option, and associated schedules setting out the basis of the calculations. The Tribunal understands the effect of the applicants' submissions, including the additional documents lodged on 23 April 2025, is that the following amounts are sought:
(a)a total sum of $31,445.30, in the event the Tribunal determines that the respondent should pay the applicants' costs of the proceedings, comprising:
(i)$9,238.90 of legal costs for the relevant period up to 30 June 2024, based upon the rates in the Legal Profession (Magistrates Court) (Civil) Report 2022 (WA);
(ii)$825.00 for the fees of Mr Waddell, the engineering expert called by the applicants, in the period up to 30 June 2024 (being his fees for attending the expert conferral at the Tribunal);
(iii)$17,861.40 of legal costs for the relevant period from 1 July 2024, based upon the rates in the Legal Profession (Magistrates Court) (Civil) Report 2024 (WA);
(iv)$1,320.00 for the fees of Mr Waddell in the period from 1 July 2024 (being his fees for attending the final hearing); and
(v)$2,200.00 for the fees of Mr Waddell for the preparation of his expert report; or
(b)in the event the Tribunal does not determine that the respondent ought to pay the applicants' costs of the proceedings then, in the alternative, an amount of $2,344.00 for legal costs that the applicants say were unnecessarily incurred by reason of the respondent's conduct leading to the final hearing running late and closing submissions being done in writing, rather than orally within the originally allocated time for the final hearing.
By his application, the respondent seeks that the applicants pay to him a total sum of $24,932.60, comprising:
(a)legal costs of $15,439.60, based upon the rates in the Legal Profession (Magistrates Court) (Civil) Report 2024 (WA); and
(b)expert witness fees in the sum of $9,493.00 in respect of both Mr Bartlett, the engineering expert called by the respondent at the final hearing, and also Mr Brian Reed.
However, in his responsive submissions lodged on 3 February 2025, the respondent seeks an additional amount of $968.00, said to be for fees caused to be incurred by, in effect, the applicants' conduct in respect to their approach to seeking costs and the late service of their submissions lodged on 20 January 2025.
Pursuant to s 9(1) of the State Administrative Tribunal Act 2004 (WA), one of the main objectives of the Tribunal is to 'act as speedily and with as little formality and technicality as is practicable, and minimise the costs to parties'.
The Tribunal observes at the outset that the combined costs claimed by the parties in this matter are well in excess of $50,000. How this could be the case, in circumstances where the matter progressed to a final hearing of a single day, with minimal documentary evidence is not, in the Tribunal's view, sufficiently enlightened by the parties' submissions on costs. Rather, the detail of the costs submissions from both parties, and the combative approach taken in parts of those submissions, is unfortunately indicative of a matter in which the parties appear to have lost a degree of perspective, resulting in work being undertaken at a level that was far from commensurate with the matters that were ultimately in issue at the final hearing and upon which the Tribunal determined the matter as set out in the substantive decision. Further, given the nature and outcome of the substantive decision, the basis upon which both parties seek such significant costs orders, in polarised extremes, is likewise not well explained by the parties' extensive cost submissions.
While the result of the substantive decision was the making of orders requiring the respondent to undertake remedial work, the Tribunal observes that:
(a)the applicants were ultimately unsuccessful in obtaining either of the far broader remedial orders sought by them[1]; and
(b)the order to require the respondent to retro fit bonding to the retaining walls was, in effect, a matter conceded by the respondent, albeit only after the close of evidence at the final hearing.
[1] Applicants' Written Statement of Orders Sought, lodged on 4 September 2024 (Folio 56 on the Tribunal's file).
For the reasons set out in the substantive decision, the Tribunal also considers that the scope of the orders made by it resulted, in large part, from the joint expert statement[2] of Mr Waddell and Mr Bartlett, arising from their expert conferral at the Tribunal on 18 June 2024, and the evidence given by them at the final hearing.
[2] Signed by both Mr Waddell and Mr Bartlett on 2 July 2024 and lodged with the Tribunal on 12 July 2024.
Without recounting all of the matters arising from the joint expert statement that were addressed in the substantive decision, the following critical matters agreed in the joint expert statement had a significant bearing on the ultimate outcome of the proceedings:
(a)'If bonding of the limestone blocks can be either confirmed or retrospectively installed, the wall will be structurally sound';
(b)'Tensar/geogrid products can be used as an alternative to bonding of limestone backing blocks. The tensar should be installed in a continuous manner'; and
(c)'Bonding could be retro-fitted (dowelled and epoxied reinforcing) to comply with the original design'.
At the final hearing, the joint expert statement of Messrs Waddell and Bartlett was admitted into evidence by the Tribunal pursuant to r 39B(5) of the State Administrative Tribunal Rules 2004 (WA) (the SAT Rules). Having been admitted, the parties were then precluded from adducing any evidence inconsistent with the matters on which the experts agreed, by reason of r 39B(6).
The practical effect of the experts' agreed position, supplemented by their concurrent evidence at the final hearing, was that:
(a)the Tensar said to have been installed by the respondent was only an effective alternative to bonding blocks if it was installed in a continuous manner;
(b)if the continuous installation of Tensar could be confirmed, the retaining walls will be structurally sound; and
(c)where the Tensar was not installed in a continuous manner, bonding by way of dowelled and epoxied reinforcing could be retro-fitted to the retaining walls in order to comply with the original design.
The applicants' approach at the final hearing included significant focus on the question of whether Tensar had been installed at all in the wall. In their submissions as to costs, the applicants also place significant emphasis on findings by the Tribunal as to the evidence of the respondent in this regard, and its observations as to the credibility of that evidence.
Ultimately, the Tribunal's decision was to the effect that, because the clear evidence was that Tensar had not been continuously laid, there was no effective alternative to the bonding blocks required by the original design. Whether the Tensar was laid intermittently, as the respondent's own evidence contended, or was entirely absent, the view of the Tribunal was that the failure to install Tensar in a continuous manner, so as to be an effective alternative to bonding blocks, rendered the respondent's construction of the retaining walls faulty or unsatisfactory.
However, the Tribunal considers it to be equally clear, from the matters agreed by the expert witnesses, that this faulty or unsatisfactory work can be properly addressed by retro-fitting bonding to the walls by the installation of dowelled and epoxied reinforcing.
In retrospect, the prospect of this outcome ought to have been apparent to the parties after the experts signed their joint statement. Indeed, in programming the matter to final hearing, a Senior Member of the Tribunal made clear, in effect, that the parties might wish to reconsider their positions on the matter following the expert conferral process and that further mediation was an option in the event the parties sought to avail themselves of that opportunity.
However, no further mediation was requested by either party following the expert conferral and, instead, the matter proceeded to a final hearing in circumstances where the parties remained in dispute as to, not only the extent to which Tensar had been utilised in the construction of the retaining walls, but a number of other allegations by the applicants as to the adequacy of the works and, critically, the nature of any orders that should be made by the Tribunal.
Legal principles applicable to costs of building disputes in the Tribunal
The general starting position in Tribunal proceedings that each party bears their own costs, and the power of the Tribunal to make an order for the payment of costs where it considers appropriate, are set out in s 87(1) and s 87(2) of the SAT Act respectively.
For this proceeding, comprising a building service complaint, s 49(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) states:
(1)Subject to this section, the Building Commissioner or the State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint or a HBWC complaint.
The engagement between these provisions of the SAT Act and the BSCRA ACT in relation to costs has been considered previously by the Tribunal[3] and was well summarised by the Tribunal in Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62 (Deshmukh) as follows:
[3] See in particular Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S) (Hippydayze (S)) at [4] to [12] and Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S) (Gileno).
39… Thus, in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, the Tribunal is not required to start from the position that each party is to bear its own costs. However, as is well understood, costs do not 'follow the event' in Tribunal proceedings and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.
40In Hippydayze (S) at [11] the Tribunal referred to the guidance given to the Tribunal in relation to the exercise of its discretion to award costs by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale) in which the following principles were found to apply:
(1)The discretionary power is to be exercised judicially; that is not arbitrarily, capriciously, or so as to frustrate the legislative intent;
(2)The power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
(3)The onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
(4)Every party to proceedings before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible and in a way which minimises the costs to the parties; and
(5)The mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
41In Hippydayze (S) at [12] the Tribunal noted that if it exercises its discretion to award costs, it is to approach the task of fixing costs in a broad and relatively robust fashion, referring to the decisions of the Tribunal in Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49]. However, although fixing costs involves a relatively broad-brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature.
Consideration of the respondent's application for costs
In his submissions dated 20 January 2025, the respondent seeks costs on the basis that the applicants' conduct unnecessarily disadvantaged him, causing additional costs to be incurred, by reason of:
(a)the applicants' late and ultimately unsuccessful request to vacate the final hearing date and have the proceedings re-listed for hearing on a later date; and
(b)the applicants' conduct at the final hearing and in their subsequent written closing submissions by, in effect, pursuing issues and proposed outcomes that were not sufficiently supported by the evidence and, ultimately, were beyond the matters found and outcomes ordered by the Tribunal in the substantive decision.
In relation to the applicants' request to vacate the final hearing and have further programming orders made, the Tribunal notes that:
(a)the request was first made in a letter from the applicants' legal representatives to the Tribunal, lodged on the eCourts portal on Friday, 2 August 2024;
(b)without making any finding in this regard, if it was the case, as contended by the respondent, that the letter was lodged with the Tribunal without any prior notice to, or conferral with, the respondent's solicitor, that would clearly be contrary to the expectations of the Tribunal as to the manner in which practitioners, and indeed parties generally, ought to conduct themselves in proceedings before the Tribunal, particularly having regard to the objectives of the Tribunal;[4]
(c)in any event the Tribunal on the next working day, Monday 5 August 2024, ordered that the proceedings be listed for a directions hearing on 8 August 2024;
(d)while the respondent's then legal representative had in the interim, on Saturday 3 August 2024, lodged his letter opposing any vacation of the final hearing date, he also then proceeded to lodge a notice of ceasing to act on 6 August 2024 and, as a result, did not attend the directions hearing on 8 August 2024;
(e)at the directions hearing on 8 August 2024 the Tribunal, for the reasons given at the time, declined to vacate the final hearing but gave leave to the applicants to file a witness statement of the first applicant by no later than 13 August 2024, being the day before the final hearing; and
(f)following the directions hearing, the respondent's previous lawyer then re-commenced acting for the respondent, with a notice of appointment of legal representative being lodged with the Tribunal on 11 August 2024.
[4] SAT Act, s 9.
The Tribunal dealt with the application to vacate the final hearing date in an appropriately efficient manner, both in terms of listing the matter for an urgent directions hearing and in addressing the application in a manner that ultimately maintained the already scheduled final hearing date.
The respondent's costs submissions suggest that the decision for his lawyer to get off the record on 6 August 2024, before the directions hearing on 8 August, and then get back on the record on 11 August 2024 was an effort to 'conserve costs'. However, in light of the approach taken by the Tribunal, this is difficult to reconcile with the limited costs that might have been occasioned by remaining on the record and attending the directions hearing on 8 August 2024. Had the respondent been legally represented for the purposes of the directions hearing, the lawyer also could have addressed at that time any matters relevant to costs associated with the applicants' request to vacate the final hearing date.
While the applicants' application to vacate the final hearing was ultimately unsuccessful, the Tribunal does not consider that it is properly described as 'frivolous'. It also does not consider that the costs sought by the respondent in respect of that application, in the total sum of $1,887.60, should be paid by the applicants. However, the applicants' approach to this issue is considered further below in respect to their own application for costs.
The majority of the legal costs claimed by the respondent in his submissions lodged on 20 January 2025, in the amount of $13,552.00, relates to the respondent's contentions regarding the applicants' conduct at the final hearing and in the preparation of their written closing submissions. In effect, the respondent's position is that he was unreasonably disadvantaged, and incurred unnecessary costs, as a consequence of:
(a)the applicants continuing to pursue matters well beyond the scope of the Tribunal's ultimate findings in the substantive decision;
(b)the failure by the applicants to call evidence to support a number of their contentions; and
(c)the ultimate failure by the applicants to establish a number of their allegations of faulty or unsatisfactory work in respect of the relevant retaining walls.
The respondent's contention is that the only matters in respect of which the applicants succeeded were those conceded by the respondent, namely that:
(a)the respondent's failure to instal Tensar in a continuous manner constituted faulty or unsatisfactory work; and
(b)the appropriate solution was to retro fit doweled and epoxied reinforcing to the affected retaining walls.
While the respondent, through his counsel, sought to concede that the retro‑fitting of bonding was appropriate, and a matter in respect of which he would agree to an order being made, the Tribunal notes that:
(a)this concession came only after the close of evidence at the final hearing, by way of the respondent's counsel advising that he had instructions to make the concession;
(b)while the Tribunal accepts this was a genuine concession quite properly made, it was also a consequence of the clear evidence before the Tribunal that the respondent had failed to instal Tensar in a continuous manner and that, in light of the agreed expert position, there was therefore no adequate substitute for the bonding blocks required by the retaining walls design;
(c)with the concession coming only after the close of evidence, both parties had already incurred all of their respective costs up to that point, representing a substantial proportion of the costs now claimed by both parties.
As noted above, much could and, in retrospect, should have been considered by both parties in light of the matters agreed in the joint expert statement, particularly given the SAT Rules applicable to the expert conferral process and status of their joint statement.
In respect of the respondent, who was presumably always in a position to know whether or not he had installed Tensar in a continuous manner, proper consideration at the time may have led to both:
(a)a far earlier acceptance that his construction of the wall was faulty or unsatisfactory; and
(b)a far earlier proposal to undertake the retro-fitting of bonding and, had that occurred, a potentially very different argument as to costs and possibly irrespective of whether or not the proposal had been accepted.
However, the late concession by the respondent ultimately meant the applicants were put to proof as to their fundamental complaint that the respondent's construction of the retaining walls was faulty or unsatisfactory and were warranted in proceeding to a final hearing in order to seek to establish their claims.
The respondent's late concession, only after the close of evidence, also meant that time was unnecessarily spent at the hearing and could have been avoided by the respondent making an earlier concession. By way of example, had the respondent conceded at the start of the hearing that he had not laid Tensar continuously in the retaining walls, the following could have been avoided in full or in part:
(a)the opening submissions by counsel for the respondent to the effect that the respondent's case was that Tensar had been installed, noting that the issue upon which the substantive decision turned was whether it was installed continuously;
(b)the cross-examination of the first applicant in relation to matters such as the extent to which she observed the work being done by the respondent and his team and the extent to which the work site was visible from inside the applicants' home; and
(c)the cross-examination of the respondent by the applicants' counsel, and the questioning by the Tribunal Members, as to the manner and extent to which Tensar had been utilised in the retaining walls.
By reason of its lateness, the respondent's concession does not, in the Tribunal's view, warrant any costs order in his favour. However, the concession having been made, and it's degree of alignment with the works ultimately ordered by the Tribunal in the substantive decision, will bear upon the extent to which the applicants are entitled to recover costs as set out below in respect of the applicants' own costs application.
As to the balance of the respondent's submissions regarding the applicants seeking to pursue matters at the final hearing, and in their subsequent written closing submissions, on which they ultimately did not succeed, the Tribunal notes that:
(a)the history of how the matter proceeded to a final hearing with a dearth of documentary evidence was set out in the substantive decision at [9];
(b)notwithstanding the limited evidence, the applicants were entitled to proceed with the final hearing in an effort to establish a basis for findings in their favour as to the complaint items before the Tribunal and, if successful in establishing some aspect of the respondent's work was faulty or unsatisfactory, the orders that ought to follow;
(c)while the limited nature of the evidence created an obvious risk for the applicants, the respondent had not admitted any matter in issue, prior to his concession made only after the close of evidence, and the applicants were entitled to adduce such evidence as they could at the final hearing, and seek to cross‑examine the respondent and examine the expert witnesses on any areas of disagreement;
(d)only once the hearing had been completed would it be apparent whether the applicants had presented sufficient evidence, including evidence arising from their cross-examination of the respondent, to support their claims and desired orders; and
(e)the Tribunal does not consider that any of the examination of witnesses by counsel for the applicants was such that unreasonable costs were caused to be incurred by the respondent that would warrant any costs orders against the applicants.
As addressed below in respect of the applicants' own costs claim, the approach taken by the applicants should properly be considered in assessing what, if any, costs ought to be recoverable by the applicants. However, the Tribunal is not satisfied that any conduct by the applicants justifies any order in favour of the respondent for the payment of legal costs.
As to the costs of expert evidence, the Tribunal considers that, as set out above, the costs of Mr Waddell and Mr Bartlett in preparing their reports, attending the conferral of experts and producing the associated joint statement and attending to give evidence at the final hearing, was ultimately critical in establishing that the respondent's construction of the wall was faulty or unsatisfactory to the extent determined by the Tribunal.
The Tribunal again considers that the manner in which the applicants pursued their broader claims and associated relief may bear upon the extent to which they should recover their expert fees. However, the Tribunal does not consider that the respondent has any basis to recover from the applicants any fees associated with Mr Bartlett's work.
The respondent was ultimately unsuccessful in avoiding any finding of faulty or unsatisfactory work and avoiding any building remedy order being made by the Tribunal.
Also included in the respondent's claim are the following amounts in respect of work undertaken by Mr Brian Reed of Reed Engineers Pty Ltd:
(a)$330.00 in respect of an invoice dated 15 December 2022, said to be for 'Design Review & Certification Letter Limestone Wall Details in respect of the applicants' property; and
(b)$528.00 in respect of an invoice dated 27 February 2023, said to be for 'Inspection & Report 27th Feb 23'.
The Tribunal considers it quite extraordinary that the respondent could seek any order in respect of amounts charged by Mr Reed, noting that:
(a)Mr Reed was not called to give evidence at the final hearing;
(b)at least the first of the above invoices from Mr Reed appears to be for the original certification of the retaining walls at the time the works were undertaken and the respondent has failed to identify any basis to suggest that such fees had anything to do with the proceedings in the Tribunal, as opposed to being part of the cost of undertaking the works in the first instance;
(c)the respondent's own evidence at the hearing was to the effect that, when Mr Reed signed off on the retaining walls, he took the respondent at his word that Tensar was in the wall, which must be considered in light of the findings made in the substantive decision as to the failure to properly install Tensar so as to be an effective substitute for the bonding blocks required by Mr Reed's original design; and
(d)other evidence from the respondent as to discussions that he said had taken place with Mr Reed was of no assistance to the Tribunal in circumstances where Mr Reed was not called to give evidence and be available for cross-examination.
Finally, turning to the respondent's application for an additional amount of costs associated with his responsive submissions, the Tribunal considers that no such costs are properly recoverable, taking into account the above reasons in respect of the respondent's costs application generally, and noting further that:
(a)the responsive submissions say little more beyond the matters raised in the original submissions;
(b)the responsive submissions express unusually emotive matters in respect of an apparent failure by the applicants to serve their original costs submissions at the time they were lodged, noting that:
(i)while not a substitute for the obligation to effect service, the respondent ought to have been able to access the applicants' submissions from the eCourts portal from the time they were lodged; and
(ii)upon the respondent's legal representative raising the delay in service, the applicants' legal representatives promptly confirmed that the applicants would consent to the respondent having a commensurate extension of time to file his responsive submissions.
By reason of the above matters, the Tribunal finds that the respondent has no entitlement to any costs order as against the applicants and his application for costs will be dismissed.
Consideration of the applicants' application for costs
As set out above, the Tribunal understands the applicants seek costs:
(a)in a total amount of $31,445.30,[5] in the event the Tribunal determines that the respondent should pay the applicants' costs of the proceedings; or
(b)in the event the Tribunal does not determine that the respondent ought to pay the applicants' costs of the proceedings then, in the alternative, an amount of $2,344.00 for legal costs that the applicants say were unnecessarily incurred by reason of the respondent's conduct leading to the final hearing running late and closing submissions being done in writing, rather than orally within the originally allocated time for the final hearing.
[5] Including the additional amount of $2,200.00 for the fees of Mr Waddell for the preparation of his expert report.
Starting with the alternative proposition, the Tribunal considers that the final hearing ran late due to a variety of factors, including but not limited to:
(a)the matters set out above that could have been avoided by an earlier concession by the respondent arising from his failure to install Tensar in a continuous manner; and
(b)extensive examination of the expert witnesses by counsel for the applicants, including in respect of matters for which there was no relevant documentary evidence before the Tribunal and in respect of which the Tribunal ultimately determined that the applicants had failed to establish matters that they sought to press.
Further, the Tribunal does not consider that there being inadequate time for closing submissions to be made at the final hearing necessitated closing written submissions to the level of detail ultimately chosen to be lodged by the parties. While it was a matter for the parties to lodge closing submissions as they saw fit, the nature and limits of the evidence before the Tribunal at the final hearing ought to have focused any written submissions on the critical matters remaining in issue.
For the above reasons, the Tribunal does not consider the alternative basis for a costs order against the respondent to be sustainable, irrespective of any decision made on the primary costs argument.
As to the primary costs argument, the applicants essentially seek an order for the respondent to pay their costs of the proceedings, in the sum claimed, on the following two grounds[6]:
(a)that the credibility of the respondent's evidence was at the heart of the matter; and
(b)the respondent conducted himself unreasonably, leading to the applicants incurring unnecessary costs.
[6] Drawn from the non-exhaustive list of criteria relevant to the consideration of costs set out Hoskins and Daniel Vinci T/as D'Vinci Contracting [2011] WASAT 188.
Noting the respondent's position as to the applicants' late request to vacate the final hearing, the Tribunal also observes that the applicants claim not to be seeking any costs 'arising from and including the Directions Hearing that occurred on 8 August 2024 … because this hearing was held at their specific request'.[7]
[7] Applicants' costs submissions dated 20 January 2025 at para 5.5.
As set out above, the Tribunal does not consider that the respondent is entitled to any costs in respect of the applicants' late request to vacate the hearing. However, the nature and timing of that request, and the apparent failure to confer with the respondent prior to making the request caused some level of inconvenience and cost to the respondent which ultimately ought not to have occurred, noting that the Tribunal declined to vacate the final hearing and it was ultimately able to proceed as listed.
Of the total sum of $31,445.30 claimed by the applicants on their primary basis, the sum of $4,345.00 relates to the fees of Mr Waddell, being:
(a)$2,200.00 for the preparation of his expert report;
(b)$825.00 for attending the conferral of experts; and
(c)$1,320.00 for his attendance at the final hearing.
The Tribunal considers that the applicants are properly entitled to an order that the respondent pay the fees charged by Mr Waddell. As noted above, the evidence of the expert witnesses was critical to the findings and orders set out in the substantive decision in respect of both the extent to which the respondent's construction of the retains walls was faulty or unsatisfactory and the remedial work that should be ordered as a result. While the applicants also sought to adduce evidence from Mr Waddell in support of their broader claims and desired outcomes, the Tribunal considers his fees to be have been reasonably incurred and not excessive in the circumstances.
The balance of $27,100.30 claimed by the applicants on their primary basis is in respect of legal fees. While the applicants' legal representatives, as part of the applicants' costs submissions, have included multiple schedules of claimed costs and other summary information, it remains unclear to the Tribunal how such an amount could be justified in circumstances where the matter was largely determined based upon the critical areas of agreement in the joint statement of experts. Further, based upon the matters set out in the applicants' costs submissions, the Tribunal understands that the applicants, in their primary submission, are seeking 100% of all fees associated with the proceedings, including even the costs of preparing for and attending mediation, up to and including the end of the final hearing on 14 August 2024, save for the following items that are said to be discounted:
(a)the fees for the attendance of a junior practitioner at the final hearing (in circumstances where the fees for attendance of a senior practitioner at the final hearing are claimed in full); and
(b)the fees for a junior practitioner to draw a bill of costs (which work is said to have been done within the week following the final hearing, well before written submissions had been lodged by the parties and any decision was made by the Tribunal).
Noting again the critical matters addressed in the substantive decision, the very limited documentary evidence before the Tribunal and the final hearing lasting a single day, the costs claimed by the applicants are considered by the Tribunal to be out of proportion with the matters in issue in the proceedings and the work that ought reasonably to have been required to prosecute the applicants' claims.
In relation to the first of the two specific grounds relied upon by the applicants, the credibility of the respondent is not considered to be a basis for the applicants to be awarded costs, and certainly not in the amount claimed. While the Tribunal made findings as to the credibility of the respondent's evidence in relation to the extent to which he installed Tensar in the retaining walls, his evidence was not that he had installed Tensar in a continuous manner, so as to be an appropriate substitute for the bonding blocks required by the design of the retaining walls. In the circumstances, the failure to instal continuous reinforcing mesh, in light of the joint statement and evidence of the expert witnesses, was key to the Tribunal's findings, without the Tribunal having to make any specific finding as to whether the respondent installed any Tensar at all, or had only installed it intermittent sections as he claimed. On other matters, the Tribunal accepted the evidence of the respondent, for example in relation to the levelling of the site undertaken by the respondent's team.
The applicants' second ground for costs substantially overlaps with the first. In contending that the respondent's conduct led to unnecessary costs being incurred by the applicants, the applicants' submissions refer particularly to their contention that the respondent had failed to inform the applicants and their legal representatives prior to the final hearing that he had not installed Tensar. However, the respondent's evidence at the final hearing was that he had installed Tensar, albeit not in a continuous manner.
The applicants' costs submissions also contend that the respondent's evidence in this regard led to the final hearing running past the usual scheduled finish time and the parties then needing to lodge written closing submissions. The applicants' contentions in support of this ground significantly overlap with their alternative position regarding the additional costs they claim by reason of the hearing running late. As set out above, the Tribunal considers that the hearing ran late for a number of different reasons. The Tribunal does not accept the submission that the respondent's evidence as to the extent to which he installed Tensar in the retaining walls was unreasonable conduct so as to warrant a costs order in the nature of that sought by the applicants.
In respect of the applicants' own conduct, the Tribunal again notes that the applicants throughout the proceedings pressed for broad building remedy orders that were ultimately found by the Tribunal not to be supported by the evidence, and particularly noting the dearth of documentary evidence lodged by the applicants in support of their contentions. They persisted in seeking such orders even after the close of evidence at the final hearing and the concession made by the respondent, albeit late, that largely aligned with the primary remedial work ultimately ordered to be undertaken by the Tribunal in the substantive decision. The applicants were thereby unsuccessful in obtaining the orders in the form they sought.
However, the Tribunal considers that a modest portion of the applicants' costs could likely have been avoided in the event that the respondent had made his concession regarding the 'stitching solution' and/or otherwise acknowledged that he had not installed Tensar in a continuous manner, much earlier than he did. Although, after evidence at the final hearing was closed and the concession was made, the applicants nevertheless persisted with seeking far broader orders than those ultimately determined by the Tribunal to be appropriate and supported by the evidence. At no time after the lodgement of the joint expert statement did the applicants, or indeed the respondent, seek further mediation.
In the circumstances the Tribunal, taking a broad and relatively robust approach to the assessment of costs in light of all of the matters set out above, including the limited degree of success by the applicants and ensuring that any costs awarded are reasonable and not excessive, finds that the respondent ought to pay a portion of the applicants' legal costs, fixed in the sum of $4,000.00.
In addition to the $4,345.00 for the fees of Mr Waddell, this results in a total amount to be paid by the respondent in the sum of $8,345.00.
Accordingly, the Tribunal makes the following orders:
Orders
The Tribunal orders:
1.The respondent's application for costs is dismissed.
2.Pursuant to s 49(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA), the respondent is to pay to the applicants the total sum of $8,345.00 in respect of their costs, including expert witness expenses, by no later than 4 June 2025.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR M Benter, MEMBER
5 MAY 2025
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