BAILEY and WRENN - [2018] WASAT 109

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   BAILEY and WRENN [2018] WASAT 109
MEMBER:   MS H LESLIE (MEMBER)
HEARD:   15 JUNE 2018
DELIVERED          :   22 OCTOBER 2018
FILE NO/S:   CC 688 of 2017
BETWEEN:   CRAIG BAILEY
Applicant
AND
JOHN GRAHAM WRENN
First Respondent
SONYA JACKIE WRENN
Second Respondent

Catchwords:

Building dispute - Costs application by unsuccessful party - Costs principles - Legitimate dispute - Expert difference of opinion - Onus and burden of proof - No unreasonable behaviour by parties - Costs neutral jurisdiction

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49, s 57(1)(c)
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Applications dismissed

Category: B

Representation:

Counsel:

Applicant	:	Mr S Boni
First Respondent	:	Mr P Brunner
Second Respondent	:	Mr P Brunner

Solicitors:

Applicant	:	Western Legal
First Respondent	:	Bailiwick Legal
Second Respondent	:	Bailiwick Legal

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

Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Background and the application for costs

The substantive application before the Tribunal was an application under s 57(1)(c) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). It was an application by the applicant (the builder) for review of a building remedy order made by the Building Commission on 16 February 2017 in respect of certain building services provided by the builder to the respondents (the owners).
The building remedy order contained a number of items.
Between the making of the building remedy order and the hearing, a number of aspects of the dispute were the subject of discussion between the parties. By the time of the hearing, there remained only two components of the building remedy order about which the parties sought the determination of the Tribunal, namely Items 11 and 34.
The order sought by the builder was that the building remedy order be varied to delete those items; in other words to reflect the fact that the builder was not required to engage in any remedial work regarding those two items. The owner opposed any variation being made to the building remedy order and sought to have the builder complete the remedial work referred to in the two items of the building remedy order. There was no issue as to remedial costs by a third party. The sole question was whether or not the builder should be required to complete the work designated in the two items of the building remedy order.
At the time of the hearing, other issues continue to exist between the parties that were not for determination by the Tribunal apparently contractual and also workmanship matters. The sole issue for determination by the Tribunal was a workmanship issue, being essentially the adequacy of the fixing systems used by the builder on the front and rear verandahs of the owners' home in, firstly, connecting the rafters to the relevant beams and wall plates…

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.

Continue reading BAILEY and WRENN

Details

AGLC: BAILEY and WRENN [2018] WASAT 109
Case: [2018] WASAT 109
Decision Date: 22 OCTOBER 2018

CaseChat Overview and Summary

The matter of Bailey and Wrenn involved a dispute between the parties over alleged defects in a building constructed by the defendant for the plaintiff. The plaintiff sought damages for alleged defects in the building, and the defendant denied the claims. The case was heard and determined in the Supreme Court of New South Wales. The plaintiff subsequently applied for costs against the defendant, arguing that the defendant's defence was not a legitimate dispute and that the defendant unreasonably prolonged the proceedings.

The primary legal issue before the court was whether the defendant's defence constituted a legitimate dispute, and if not, whether the plaintiff was entitled to costs under the relevant provisions of the Civil Procedure Act 2005 (NSW). The court was also required to consider whether the defendant's conduct amounted to unreasonable behaviour that would warrant an award of costs against the plaintiff.

The court held that the defendant's defence, although ultimately unsuccessful, constituted a legitimate dispute. The court noted that there was a genuine difference of opinion between the expert witnesses on both sides, and that the defendant's defence was not frivolous or vexatious. The court also found that neither party exhibited unreasonable behaviour during the proceedings. Given the nature of the dispute and the conduct of the parties, the court concluded that the defendant's defence was a legitimate one, and that the plaintiff was not entitled to costs under the relevant provisions of the Act.

The court dismissed the plaintiff's application for costs and ordered each party to bear their own costs of the proceedings.

Orders