BACICH and T & H NOMINEES PTY LTD - [2025] WASAT 63 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BACICH and T & H NOMINEES PTY LTD [2025] WASAT 63 (S)
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   14 NOVEMBER 2025
FILE NO/S:   CC 26 of 2023
BETWEEN:   IVAN BACICH
Applicant
AND
T & H NOMINEES PTY LTD
Respondent

Catchwords:

Home building work contract (HBWC) complaint - Review of decision of original Tribunal to decline to make a HBWC remedy order - Costs - Settlement offers - Exercise of the broad discretion regarding costs - Turns on its own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 41(2), s 43(1)(b), s 41(2)(d), s 58(2)
State Administrative Tribunal Act 2004 (WA), s 60(2)

Result:

Applications for costs by the applicant and the respondent dismissed

Category: B

Representation:

Counsel:

Applicant	:	N/A
Respondent	:	N/A

Solicitors:

Applicant	:	Self-represented
Respondent	:	Morgan Alteruthemeyer Legal Group

Case(s) referred to in decision(s):

Bacich and T & H Nominees Pty Ltd [2025] WASAT 63
Cairnes and Ventura Home Group Pty Ltd [2024] WASAT 111 (S)
Calderbank v Calderbank (1975) 3 All ER 333
Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S)
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Petsos and Judd [2025] WASAT 26 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The dispute between the applicant, Mr Ivan Basich and the respondent, T & H Nominees Pty Ltd, which trades as Phoenix Patios, has a long history.
It concerns a patio which was constructed by the respondent at the applicant's property in Spearwood in February 2018 for the price of $11,850.00.
The applicant lodged a complaint with the Building Commissioner that the respondent had breached the contract between them dated 30 November 2017 (Contract) for the supply and installation of a patio at the applicant's property in Spearwood (HBWC Complaint).
The Building Commissioner referred the HBWC Complaint to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), which became Matter Number CC 699 of 2022 (original proceeding).
Following a final hearing, pursuant to s 43(1)(b) of the BSCRA Act, the Tribunal[1] decided to decline to make a HBWC remedy order against the respondent and dismissed the HBWC complaint (Dismissal Decision).
[1] Constituted by Member Barton and Sessional Member Fraser.
The applicant commenced this proceeding (review proceeding) by an application to the Tribunal pursuant to s 58(2) of the BSCRA Act for review of the Dismissal Decision and following a hearing the Tribunal[2] gave the applicant leave to review the Dismissal Decision, limited to the issue of whether the respondent had breached the Contract by not obtaining approval from the City of Cockburn for the works carried out by the respondent under the Contract (the constructed patio

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: [2025] WASAT 63 (S)
Decision Date: 14 NOVEMBER 2025

CaseChat Overview and Summary

The case of Bacich and T & H Nominees Pty Ltd involved a dispute between the applicant, BACICH, and the respondent, T & H Nominees Pty Ltd, over a home building work contract. The matter was brought before the Tribunal under the Building Services Complaints Resolution Act (BSCRA) and subsequently reviewed by the Supreme Court. The primary issue before the Supreme Court was the decision of the Tribunal regarding the costs incurred by both parties following the final hearing. The applicant sought reimbursement for various costs, including application fees, transcript fees, legal costs, and expert fees, totaling over $56,000.

The legal issues that the court had to decide included whether the Tribunal exercised its broad discretion regarding costs appropriately and whether the costs claimed by the applicant were justified. The court also had to consider the respondent's contention that the Tribunal should have awarded costs in its favour due to the applicant's failure to mitigate loss. The court was tasked with reviewing the reasoning of the Tribunal in dismissing both parties' costs applications and ensuring that the decision was fair and just.

The Supreme Court found that the Tribunal had correctly exercised its discretion in dismissing both parties' costs applications. The court held that the amount of costs claimed by the applicant was excessive and not proportionate to the issues and complexity of the case. The court also noted that the Tribunal had taken into account the respondent's concession and the need for the applicant to mitigate his loss when determining the compensation award. The Supreme Court concluded that the Tribunal's decision to dismiss the costs applications was reasonable and appropriate.

The final orders of the Supreme Court were that each party's costs application was dismissed. The court upheld the Tribunal's decision not to award costs to either party, finding that the amount claimed by the applicant was not justified and that the respondent's concession and the applicant's failure to mitigate loss warranted the dismissal of costs applications.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

Following a final hearing, pursuant to s 43(1)(b) of the BSCRA Act, the Tribunal[1] decided to decline to make a HBWC remedy order against the respondent and dismissed the HBWC complaint (Dismissal Decision).[1] Constituted by Member Barton and Sessional Member Fraser. The applicant commenced this proceeding (review proceeding) by an application to the Tribunal pursuant to s 58(2) of the BSCRA Act for review of the Dismissal Decision and following a hearing the Tribunal[2] gave the applicant leave to review the Dismissal Decision, limited to the issue of whether the respondent had breached the Contract by not obtaining approval from the City of Cockburn for the works carried out by the respondent under the Contract (the constructed patio).[2] Constituted by Senior Member Aitken. Subsequently, the respondent conceded that it breached the Contract by not obtaining approval from the City of Cockburn for the constructed patio (breach of the Contract).[3][3] The respondent had obtained a building permit to construct a patio at the applicant's property prior to carrying out the works, but that building permit was not for the constructed patio. As the result of that concession, the issue remaining to be determined by the Tribunal was what loss or damage the applicant had suffered by reason of the breach of the Contract and, consequently, what HBWC remedy order the Tribunal should make under s 43(1)(a) and s 41(2) of the BSCRA Act to compensate the applicant for that loss or damage. Subsequently, the respondent raised the issue of whether the Tribunal had jurisdiction to determine the matter. There were two aspects of that issue. First, whether the HBWC Complaint was properly made to the Building Commissioner. Secondly, whether the HBWC Complaint was made to the Building Commissioner within time. Following a final hearing on 26 and 27 March 2025, the Tribunal[4] decided that it had jurisdiction to determine the matter and made a HBWC remedy order pursuant to s 43(1)(a) and s 41(2)(d) of the BSCRA Act that the respondent pay the amount of $233.30 to the applicant as compensation for the breach of the Contract. The reasons for that decision were delivered and published on 3 July 2025 in Bacich and T & H Nominees Pty Ltd [2025] WASAT 63 (the Review Decision). The reason for the applicant being awarded such a small amount of compensation was that the Tribunal concluded that the applicant had not taken all reasonable steps to mitigate his loss. [4] Constituted by Senior Member Aitken and Senior Sessional Member Affleck. Following that decision each party has made an application for costs and filed submissions in opposition to the other party's costs application and the costs applications have been determined on the documents by the Tribunal, constituted by Senior Member Aitken, pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA). For the reasons which follow, I have decided to dismiss each party's costs application. The applicant filed his costs application on 17 July 2025, in which he is seeking the following costs:1.'BEI application fee' of $238.00;2.'Reimbursement of application fee for appeal' of $635.00;3.'Reimbursement of transcript fee' of $436.50;4.'Reimbursement of legal costs' of $28,877.83;5.'Reimbursement of engineer's report [fee]' of $9,332.07;6.'Airey Taylor Consulting (Engineer) [fees]' of $2,304.50;7.'Airey Taylor Consulting (Engineer), conference of experts [fees]' of $9,426.36; and8.'Airey Taylor trial attendance SAT trial [fee]' of $5,641.90.Total costs sought: $56,892.16

Ratio Decidendi

Legal Principle Established

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