BGC RESIDENTIAL PTY LTD and GIBSON - [2009] WASAT 247

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: BGC RESIDENTIAL PTY LTD and GIBSON [2009] WASAT 247

MEMBER: MR T CAREY (MEMBER)

HEARD: 16 OCTOBER 2009 AND 26 OCTOBER 2009

DELIVERED : 26 OCTOBER 2009

FILE NO/S: CC 865 of 2009

BETWEEN: BGC RESIDENTIAL PTY LTD
Applicant
AND
RODNEY GIBSON
ANITA GIBSON
Respondents

Catchwords:

Building disputes - Costs - Principles governing review of decisions on costs - Whether offers made and their rejection to be taken into account in building cases - Inconsistency of decisions on point between two tribunals in some hierarchy - Whether only Calderbank offers fall to be considered

Legislation:

Builders' Registration Act 1939 (WA), s 36, s 36(1), s 38(4), s 41, s 42
State Administrative Tribunal Rules 2004 (WA)
Victorian Civil and Administrative Tribunal Act 1988

Result:

Leave to review granted in respect of BDT's refusal to have regard to offers of settlement and their rejection in determining costs application
Application for review dismissed

Category: B

Representation:

Counsel:

Applicant: Mr AW Buchan
Respondents : Self-represented

Solicitors:

Applicant: Hotchkin Hanly
Respondents : Self-represented

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

Commodore Homes (WA) Pty Ltd and Deegan [2007] WASAT 45
Donaldson Homes v Vero Insurance (Domestic Building) [2006] VCAT 179
Garner v Rohanna Pty Ltd [1999] WASCA 178
Messiter v Hutchinson (1987) 10 NSWLR 525
Ogden v BGC Residential Pty Ltd, BDT 0.17169 (19 December 2007)
Seow and Pillinger [2008] WASAT 308
Tangent Nominees Pty Ltd and Edwards [2005] WASAT 119
Westcourt Ltd and French [2007] WASAT 220

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicant sought review of a decision by the Building Disputes Tribunal not to award the applicant its costs in circumstances where the applicant had made various proposals to the respondents before the determination of the matter which it said were more favourable to the respondents than the ultimate result. The main issue raised in the proceedings in this Tribunal was whether, in considering an application for costs, the Building Disputes Tribunal is able to have regard to offers made and rejected, whether or not the offers were in the nature of a Calderbank offer.

<p>2</p>The Tribunal decided that, contrary to the conclusion of the Tribunal below, and consistent with one of its previous decisions, the Building Disputes Tribunal can and should have regard to offers and the response to them under the relevant provision of the Builders Registration Act 1939 (WA), on the proviso that the offer complied with the Calderbank principles. It therefore granted the applicant leave to review to that extent. However, on its review of the various proposals relied upon, it found there was only one complying Calderbank offer. However, the fact that this offer was made the day before the hearing was found to be a sufficient basis to dismiss the application for review.
<p>3</p>The Tribunal gave its decision orally at the end of the hearing. Its reasons, taken from the transcript and edited in minor…

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 247
Decision Date: 26 OCTOBER 2009

CaseChat Overview and Summary

The appeal before the court involved BGC Residential Pty Ltd and Gibson, where the central dispute revolved around the assessment of costs in a building dispute. The matter originated from a decision by the Building Disputes Tribunal (BDT) which had ruled on the principles governing the review of costs decisions, specifically whether offers made and their rejection should be taken into account in building cases. This ruling was in response to an application made by Gibson for a review of the BDT’s decision made on 3 June 2009.

The primary legal issues before the court were whether the BDT had erred in its finding that section 38(4) of the Builders' Registration Act 1939 did not permit it to consider offers of settlement and their rejection in building cases. Additionally, the court needed to address the inconsistency between the decisions of two tribunals regarding the consideration of offers in building disputes and whether only Calderbank offers should be taken into account.

In resolving these issues, the court examined the legislative framework and the relevant case law. The court found that the BDT had correctly interpreted section 38(4) of the Act, which did not explicitly allow the tribunal to consider offers of settlement and their rejection. The court also noted the inconsistency between the BDT and other tribunals but held that this did not necessarily indicate an error on the part of the BDT. The court further clarified that only Calderbank offers, which are formal offers of settlement made without admitting liability, should be considered. The court ultimately affirmed the BDT’s decision, finding that it had not erred in its interpretation of the statute.

The orders of the court were to grant leave to review the BDT’s decision on costs limited to its finding regarding the interpretation of section 38(4) of the Act. However, the application for review was dismissed, and the decision under review was affirmed, upholding the BDT's original ruling.

Orders

Orders of the court

For the above reasons, the order of the Tribunal is as follows: 1. Leave is granted to review the decision of the Building Disputes Tribunal made on 3 June 2009 on costs limited to its finding that s 38(4) of the Builders' Registration Act 1939 does not, as a matter of construction, permit it to have regard to offers of settlement and their rejection. 2. The application for review is dismissed. 3. The decision under review is affirmed.

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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