CLINTWAY PTY LTD and THE OWNERS OF STRATA PLAN 21805 - [2008] WASAT 294

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: CLINTWAY PTY LTD and THE OWNERS OF STRATA PLAN 21805 [2008] WASAT 294

MEMBER: MR C RAYMOND (SENIOR MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
MR P FAIGEN (SESSIONAL MEMBER)

HEARD: 12 AND 13 AUGUST 2008

DELIVERED : 10 DECEMBER 2008

FILE NO/S: VR 263 of 2005

BETWEEN: CLINTWAY PTY LTD
Applicant
AND
THE OWNERS OF STRATA PLAN 21805
Respondent

Catchwords:

Builders Registration Act 1939 - Application for review of decision of Building Disputes Tribunal - Whether Building Disputes Tribunal has power to vary an order to remedy - Whether power to amend claim - Whether jurisdiction by estoppel - Whether State Administrative Tribunal has power to revoke original order to remedy and substitute an order to pay reasonable costs of remedial work - Effect of delay in assessment of costs and exercise of discretion

Legislation:

Builders' Registration Act 1939 (WA), s 5A, s 12A, s 12A(1), s 12A(1a), s 12A(2), s 12A(3), s 12A(4a), s 28(1), s 28(2), s 33A, s 33A(3), s 35(2), s 36, s 36(1), s 36(5), s 38(4), s 41, s 45A, s 45A(ii)
Builders' Registration Regulations 1939 (WA)
Home Building Contracts Act 1991 (WA)
State Administrative Tribunal Act 2004 (WA), s 27, s 29(9), 29(3), s 87(1)

Result:

Application for review granted
Decision of State Administrative Tribunal substituted for that of the Building Disputes Tribunal

Category: B

Representation:

Counsel:

Applicant: Mr P Kyle
Respondent: Mr M Atkinson

Solicitors:

Applicant: Kyle & Company
Respondent: Atkinson and Associates

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

Bakker and City of Nedlands [2005] WASAT 106
Cameron v Renouf [2008] WASC 60
Clintway Pty Ltd and The Owners of Strata Plan 21805 [2006] WASAT 342
DJL and the Central Authority (2000) 201 CLR 226
Jackson v Sterling Industries Ltd (1987) 162 CLR 612
Nelson v Mardesic 22 SR (WA) 42
Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717
Well Holdings Pty Ltd v Agostino [2001] WADC 174

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The State Administrative Tribunal reviewed a decision of the Building Disputes Tribunal made on 15 April 2005. Leave was granted to review the decision on 24 November 2006. The leave granted was limited to one ground, and that was whether the Building Disputes Tribunal lacked jurisdiction to vary an order to remedy defective work other than in accordance with s 12A(4)(a) of the Builders' Registration Act 1939 (WA). The State Administrative Tribunal's written reasons for decision in respect of the leave application indicated that, within that ground, the applicant could raise issues on review going to the reach and content of the order under review.
The State Administrative Tribunal found that an order to remedy building work pursuant to either subsection 12A(1) or subsection 12A(1a) of the Builders' Registration Act 1939 was a final order. Consequently, the Building Disputes Tribunal had erred in varying an order to remedy which had been made in 1997.
The State Administrative Tribunal rejected the applicant's submission that the State Administrative Tribunal had no jurisdiction to make an order to pay the costs of remedial work, as no such application had been before the Building Disputes Tribunal. The owners had originally applied for an order to pay during the course of a review of the original order to remedy made in 1996. That order had been made by the Registrar and was reviewed by the Building Disputes Tribunal in 1997 pursuant to s 33A of the Builders' Registration Act 1939. The review resulted in the order to remedy being affirmed. In the decision under review in 2005, the Building Disputes Tribunal had varied that order to remedy. The State Administrative Tribunal found that the matter before the Building Disputes Tribunal in 2005 was a complaint concerning a failure to comply with the earlier order to remedy. As such, and applying the principles set out in Bakker and City of Nedlands [2005] WASAT 106, the only discretion which the Building Disputes Tribunal had in dealing with the matter was that applying to the exercise of the powers under s 12A(4a) of the Builders' Registration Act 1939. On the facts before it, that is the course which the Building Disputes Tribunal should have followed, but did not. Consequently, on a hearing de novo, the State Administrative Tribunal held that it had jurisdiction to substitute the order which the Building Disputes Tribunal should have made as being the correct and preferable decision on review.
The proceedings related to remedial work claimed to be necessary in constructing a retaining wall on the boundaries of four strata titled units. Two issues were raised as to the content and reach of the 2005 orders made by the Building Disputes Tribunal and therefore the orders which could be made on review. The first related to a unit which had been referred to in the complaint form lodged with the Building Disputes Tribunal. The original order to remedy had made no reference to subsidence or erision issues relating to that unit and nor had the 1997 orders. In the decision under review, the Building Disputes Tribunal held that, as the matter had never been dealt with, it remained before the Building Disputes Tribunal and could be dealt with. The State Administrative Tribunal concurred with that approach. A second unit had been included in the original order to remedy and the order subject to review, but had never been mentioned in the complaint form lodged with the Building Disputes Tribunal. A contention by the respondent that the Building Disputes Tribunal had jurisdiction to deal with the unit based on an estoppel was rejected. The State Administrative Tribunal held that, as the Building Disputes Tribunal is a creature of statute, its jurisdiction and powers were limited to those expressly or by implication conferred by the legislation.
The State Administrative Tribunal held that a subsequent complaint had been made in relation to the unit. Alternatively, once the Building Disputes Tribunal was vested with jurisdiction, it had the power to amend the complaint before it to add additional matters which might arise. Although there had never been a formal application to amend the complaint, the State Administrative Tribunal concluded on the facts that the complaint had been amended to include reference to the particular unit.
The State Administrative Tribunal concluded that the most practical remedy was that proposed by the respondent. The State Administrative Tribunal accepted the unchallenged evidence concerning the basic costings for that work. A contingency sum equal to 15% of the base cost of $64,000 was allowed. Orders were made setting aside the decision under review and substituting an order to pay a total sum, inclusive of Goods and Services Tax of $80,960.

The application for review and issues to be determined

This is the review of a decision of the Building Disputes Tribunal (BDT) made on 15 April 2005, pursuant to leave granted under s 41 of the Builders' Registration Act 1939 (WA) (BR Act) on 24 November 2006. The leave granted was limited to one ground, and that was whether the BDT lacked jurisdiction to vary an order to remedy defective work other than in accordance with s 12A(4)(a) of the BR Act, but the State Administrative Tribunal (SAT)'s written reasons for decision indicated that, within that ground, the applicant (builder) could raise issues on review going to the reach and content of the BDT's order under review: see Clintway Pty Ltd and The Owners of Strata Plan 21805 [2006] WASAT 342 (leave decision).
The effect of the order granting leave is that the builder is bound by all findings of fact made by the BDT. Notwithstanding this, evidence was permitted at the final hearing which dealt with the same subject matter on which findings had been made by the BDT. It was permissible to do so, and indeed necessary, because the review hearing included consideration of factual matters relevant to determining the reasonable cost of carrying out remedial work. In order to assess that cost, it is necessary for the SAT to make findings as to the current state of the site concerned, causal factors contributing to that state and the effect of those matters on what might be an appropriate method of remediation.
The various issues raised by the parties in their respective statements of issues, facts and contentions, oral and written submissions become subsumed within the following issues and the outcome of the application will depend on their determination.
The primary issues are:
1.Does the BDT have power to vary an order to remedy defective building work (Order to Remedy)?
2.Was it permissible for the BDT to include in the order made on 15 April 2005 orders that the builder carry out remedial work in respect of:
(a)Unit 1, as there was no reference to it in the original complaint relating to any subsidence or erosion issue;
(b)Unit 2, as there was no order made in relation to that unit in the original Order to Remedy?
3.If the BDT order made on 15 April 2005 is set aside on review, does the SAT have power to make an order that the builder pay to the owners the reasonable cost of carrying out the necessary remedial work (Order to Pay)?
4.If the SAT has power to make an Order to Pay, should it exercise a discretion to do so, in view of the length of delay since completion of the building works of approximately 17 years?
5.If an Order to Pay is to be made, at what date should the cost of remedial work be assessed?
6.If an Order to Pay is to be made, what is the reasonable cost of the necessary remedial work?
Issue 1, issue 2 and issue 3 turn entirely on legal considerations and we should deal with them first. However, they are best discussed in the context of a factual background. That background is also relevant for the determination of issue 4, issue 5 and issue 6, but it will also be necessary to consider the circumstances of the matter subsequent to the BDT order made on 15 April 2005 and the evidence given at the review hearing.
Much of the background is conveniently set out in the reasons for decision of the BDT dated 15 April 2005. It is convenient to repeat relevant portions of those reasons for decision while adding what we think necessary. The additions we have made are in italics.
1.1This long-standing matter commenced in 1996 with a complaint involving the Owners of Strata Title units who were the purchasers of homes in a complex of thirty houses constructed by the Builder in South Fremantle in 1991‑92. The complex is situated at Moran Court in Beaconsfield and is on top of the high point overlooking the old quarry, which quarry is now used as a football ground and is believed to be owned by the Main Roads. The eastern end of the quarry has a very steep face rising some 60 to 70 metres to the crest on top of which are the strata units. Seven of the units' backyards are on the boundary between the quarry property and the Strata Title property.
1.2In 1996 the Owners brought an action in this Tribunal against the Builder because soil was leaking out from their backyards into the quarry. The Tribunal held that the complaint had been made in time. At that stage it apparently involved the Owners of Units 1, 3 and 4. The history thereafter was as follows:
(1)An Order to Remedy issued 10 November 1996.
The Order read:
(a)Under the direction of a suitably qualified engineer, recover the fence, internal soil levels and associated works to the same levels and conditions established when the project was completed in 1991.
(b)Due to the extreme nature of the site and adjoining property; provide the Board with a copy of the design.
(2)No design was received by the Board to our knowledge and the Builder did not produce a copy at the hearing. However a letter was produced dated 16 December 1996 from an engineering firm [from Mr Gervaise Purich of Structerre, who gave evidence for the builder in the review hearing] in which the author claimed that the solution was just to make good the distortions in the fence line and ensure that the discharge of water from the properties was diverted away from the rear fence line. It was suggested that as it was a small problem it could be carried out by the Owners as there was no liability.
(3)On 7 February 1997 the same engineering firm in relation to the Orders wrote to the Manager of the Respondent to say that no drawings for a design were necessary as the problem was so simple. The firm was still of the opinion that the Building Disputes Committee had erred in its decision.
(4)Remedial work was then partially completed but only to Units 3 and 4 by a Mr Sgro who said he did the work ‑ he thought – in 1996, but in the light of the engineer's letters it was in 1997 that the work was done. He straightened up the fence, put some concrete around the feet of the posts holding up the fence and filled in the holes with sand, compacted it and re-laid the paving.
(5)On 13 December 1996 the Builder appealed the Orders of the Registrar dated 15 November 1996 on the basis there was no jurisdiction. A decision of the Tribunal was made on 18 June 1997 in which the Order to Remedy was affirmed and the builder allowed 28 days for performance. An appeal as to the Owner of Unit No. 1 was resolved against the Builder but allowing him to perform the remedial work. [This is a reference to the automatic right of review of a decision made by a Registrar under delegated authority as provided for in s 33A of the BR Act. The original Order to Remedy was one made by the Registrar. In the written reasons for the decision to affirm the order made by the Registrar, the BDT (then known as the Building Disputes Committee) weighed up submissions put forward on behalf of the owners that an Order to Pay be issued against the changed position of the builder. The Builder advised that it accepted the Registrar's Order to Remedy, wished to have an opportunity to comply with the order and further that if the method proposed by it did not correct the problem, the builder remained liable to remedy the faulty work.] Action to complete that matter was presumably completed sometime at the end of September 1997, and again by strengthening the posts with concrete and filling in the holes with sand at the corner of Unit 1.
(6)On 29 September 1997 it was noted in a letter from solicitors, Corser and Corser[,] that Unit 2 had also been affected. On 19 November 2002 the Builder was advised by letter that the matter was ongoing and all the Units 1‑7 along the boundary were affected by continuing erosion.
(7)On 19 November 2002 in a letter to the Respondent, the Manager of the Complainant Company lodged a complaint advising the Respondent that the remedial work had failed and the matter was being referred back to the Tribunal. [In fact, this letter was addressed to the strata company, not the builder, and was provided to the BDT on 9 January 2003.]
(8)On 15 January 2002 [sic] the Tribunal took up the matter with the Respondent. [The date is obviously in error, given (6) above. The BDT's letter to the builder is dated 15 January 2003.]
…
3.1At the hearing before the Tribunal the original Inspectors' Reports referred to Units 1, 3 and 4 of the Report. However subsequent investigation of the files shows that the original complaints related to Units 1, 2, 3 and 4. [In fact, there was no reference in the original complaint to any subsidence or erosion issue relation to Unit 1.] Somehow the problem relating to Unit 2 was not included in the Orders and not dealt with by the Committee despite letters from the Manager of the Strata Company drawing attention to the omission. However as the matter was not further followed up it is presumed that the Respondent's agent in attending to the adjacent units also rectified the middle Unit 2 which did not require the same attention. Alternatively, the issue of Unit 2 is still outstanding as the then Committee did not deal with this Unit's claim although validly made. However it appears that four Units had remedial work completed by about the middle of September 1997 and carried out sometime between early January to September 1997. They are within time in making the current claim for a failure of the remedial work. That claim was lodged with the Respondent on 19 November 2002. While the evidence of Mr Sgro was that he carried out work in 1996, he did not produce documents to prove it. As at 16 December 1996 the Engineers were recommending the work be done by the Owners, because there was no liability. At that date evidently no work had yet been carried out.
…
4.EFFECT OF ORDERS OF REGISTRAR 1996/1997
4.1As noted in paragraph 1.2 of these Reasons, the first Order of the Tribunal was to require the Respondent to restore the levels of the first units of the row. The Owners were not impressed with the proposals, but the Tribunal allowed the Respondent to carry out the work.
4.2A most important matter was not noticed by either the Respondent or the Engineers retained by it. The original plans were drawn up by an associated firm of the Respondent. On the plan relevant to this boundary are two notations on the quarry side of the line. These read "Note: Engineer to check soil stability in this area." Then further along it reads "EDGE OF BANK". Neither the Respondent, its Engineer or the City Council referred to this direction, nor were any tests carried out. Not unexpectedly the Engineer [Mr Bruechle] giving evidence for the Respondent at this hearing, was taken aback when the notation was drawn to his attention. Neither did GB Hill and Partners when commenting on the scheme for the City Council make any reference to the stability of the site. Given the nature of the site we find it surprising that no‑one gave any thought to the stability of the bank only 1.5 metres from the boundary, despite their attention being drawn to it. Further the order of the Tribunal in 1996 specifically referred to "the extreme nature of the site."
4.3The evidence of the Respondent all through this period concentrated on the cause of the erosion being due to rainwater or garden water draining out to the boundary and over the paving, most of which had been installed by Owners. Yet Unit 7 has no garden and no paving but just grass. The Owner of that unit has lost at least half a metre of this ground and has been forced to relocate the fence closer to his unit, where the erosion is continuing. It is clear that the affect of water is minimal. The problem lies with the instability of the bank itself. At construction the Respondent simply assumed the site was stable notwithstanding the warning on the plan. It levelled the existing site and placed a layer of yellow sand on top to provide the necessary base for the houses. It assumed that the cliff face or bank was a flat face of limestone overlaid by a sand slope held in place by the vegetation growing on the sand. It did not therefore take any steps to retain the sand under the rear of the [sic] Units 1 to 7 neither did it test the nature of the ground along the boundary. The yellow top layer of sand can be seen in the slope of the bank as part of the erosion.
4.4The present position is that there has been an uneven sinking of the top of the bank. As both the engineers for the parties confirmed, the bank is unstable. Surprisingly no‑one has drawn the matter to the attention of the owner of the bank and quarry. Mr Royal for the Complainants deduced that the edge of the limestone is not even, but has enclaves or "scallops" in it. This is most evident at Unit 7 and is also evident where the bank has sunk lower at other points than the adjacent ground. It is also most evident at the corner of Unit 1. The floor of the shed of one unit is disappearing into a similar hole. It is obvious that the whole bank has sunk and is steadily eroding through the slippage of sand into the quarry. The remedial work carried out was totally inappropriate and was nothing more than a temporary solution to a problem which was going to recur and shortly afterwards did so.
4.5The cause advanced by the Respondent was the flow of water from gardens and pergolas. No warning was given to the Owners that they would not be able to have gardens but just lawn. In fact and in law the argument is irrelevant, when the purchasers could be expected to follow the ordinary practices of their neighbours and beautify the area. Otherwise they should have been warned and an adjustment made to the value of their houses. We reject the argument, in particular because of the evidence at Unit 7 showing that pergolas and gardening have nothing to do with the continuing collapse of the edge of the bank.
5.NATURE OF ORDERS
5.1The previous Committee allowed the Respondent to undertake the remedial work and asked for a plan. None was provided because the Respondent, on the advice of its engineers, considered that a simple solution was all that was needed. The simple solution has not worked. The Tribunal notes that the sand base has to be contained by a properly designed and constructed wall. From the beginning of this construction there should have been a proper analysis of the rock levels and rock face beneath the boundary and a suitable design proposed to retain the sand on top of the rock base. In addition the Owner of the quarry, whoever that may be, ought to be alerted to restore and stabilise the bank especially opposite Units 1 and 7 but in general all along the boundary.
…

While the parties are bound by findings of fact made by the BDT in the above decision, it should be noted that the statement in 5.1 that the BDT notes that the sand face has to be contained by a properly designed and constructed wall is a conclusion which is not based on any particular findings of fact. Indeed, in its context, it is clear that the BDT foreshadowed that there needed to be a proper analysis of the rock levels and rock face beneath the boundary and a suitable design proposed to retain the sand on top of the rock base. The BDT assumed that would mean a properly designed and constructed wall. As will be seen, the parties have joined issue as to whether the retaining wall proposed on behalf of the owners constitutes an appropriate design which the SAT can accept as constituting work necessary to remedy the building work that is faulty or unsatisfactory. The builder does not challenge the owners' costings for the construction of that wall except as a matter of principle relating to the inclusion in that costing of any sum for contingencies. The builder asserts, in effect, that the wall is not an appropriate method of remedying the faulty or unsatisfactory work.
It is not open to the builder to dispute that the original work undertaken by it was faulty or unsatisfactory. The SAT refused leave in respect of various proposed grounds of review aimed at establishing that a complaint that the builder had failed to stabilise the land was not a complaint of faulty or unsatisfactory work and that there was no evidence to establish that the builder had any obligation to stabilise the land when the buildings were constructed in 1992: see Clintway Pty Ltd and The Owners of Strata Plan 21805 [2006] WASAT 342 at [49] ‑ [53]. The SAT concluded that there was a sufficient basis for the Registrar to form a view that the subsidence was the responsibility of the builder. Further, the evidence before the BDT in the 2005 hearing established that the builder had a choice of how to go about the construction of the footings for the buildings. Rather than dig out the base of the concrete tanks on the site and carry out any hard digging that may have been necessary to remove limestone, the builder elected to bring in fill. Having brought in fill, it had to be adequately stabilised, and it was clear that it was not adequately stabilised in 1991/1992 and that the remedial work carried out in 1997 had not solved the problem.
As the SAT held at [51] of the leave decision, the Order to Remedy, as affirmed, must be understood as requiring the builder to recover the internal soil levels and associated works to the same levels and conditions established when the project was completed, and by implication, the works to be carried out had to be sufficient to maintain those levels. The works were not sufficient to do so, resulting in the further hearing in 2005.
The orders made by the BDT on 15 April 2005 were in the following terms:
(1)The Respondent Builder to prepare an engineering plan to stabilise and restore the ground to its original level and further such a plan is to show the action required to permanently stabilise the ground level.
(2)The Respondent to obtain the approval of the Owners of Units 1, 2, 3 and 4 to the proposed actions.
(3)The Respondent to provide to the Tribunal copies of its plan and the written approval of the Owners before taking action on the remedial work.
(4)The Respondent to complete action required by Orders 1 to 3 within 6 weeks of the date of this Order with liberty to apply for an extension of time if absolutely necessary.
(5)There be liberty on the part of the Owners to apply to this Tribunal if untoward delays take place in remedying the situation.
We turn to consider the legal issues raised by issues 1 to 3 above. For convenience, all references to legislation hereafter are to the BR Act unless otherwise stated.

Issue 1 ‑ Did the BDT have power to vary the original Order to Remedy as affirmed?

Counsel for the builder refers to the relevant provisions of s 12A. Under s 12A(1) where, on a complaint being made to it by any person, the BDT is satisfied that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory, the BDT may, by order in writing served on the person who carried out the building work, order him to:
(a)remedy the faulty or unsatisfactory building work within such reasonable time as is specified in the order; or
(b)pay to the owner of the building such costs of remedying the building work that is faulty or unsatisfactory as the BDT considers reasonable in which case any costs so ordered by the BDT constitute a debt to the owner and are recoverable by him in a court of competent jurisdiction.
Subsection 12A(1a) empowers the BDT to make similar orders, but the order may only be made in favour of the person for whom the building work has been carried out, if the BDT is satisfied that in some respect (other than the building work being faulty or unsatisfactory) it has not been carried out in a proper and workmanlike manner.
Subsection 12A(4a) provides:
(4a)If the Disputes Tribunal is satisfied that an order to remedy building work ‑
(a)made by the Disputes Tribunal under sub‑section (1)(a) or (1a)(a);
[(b)deleted]
has not been complied with, or has been complied with in part only, by the person on whom it was served, whether or not he has on that account been convicted of an offence under sub‑section (4), the Disputes Tribunal may ‑
(c)revoke the order in relation to that building work or the part in question; and
(d)make an order under sub‑section (1)(b) or (1a)(b), as the case may be, in relation thereto.
It is submitted for the builder that the order made by the BDT on 19 September 1997, affirming the Order to Remedy No 394/96 made by the Registrar under his delegated jurisdiction, is a final order. Counsel for the owners submitted, in his written submissions, that the BDT, in making the 2005 orders, was doing no more than varying the order of the Registrar pursuant to s 33A(3).
We reject the owners' submission. The BDT as constituted for the hearing on 8 September 1997 was the full tribunal (or committee as it then was) contemplated by s 35(2). The very purpose for which the BDT sat on that occasion was to review the earlier decision made by the Registrar under s 33A.
In exercising its jurisdiction under s 12A(1) and s 12A(1)(1a), the BDT must determine whether or not work has been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory, or whether the building work has not been carried out in a proper and workmanlike manner. There is nothing within the legislation to suggest that those matters will ever be reconsidered by the BDT except where the BDT reviews orders made by the registrar under s 33A. The only remedy available in respect of a decision of the BDT itself is to apply for a review by SAT pursuant to s 41. If satisfied that the building work is faulty or unsatisfactory, or has not been carried out in a proper and workmanlike manner, the BDT has power to issue an Order to Remedy in respect of the faulty or unsatisfactory building work, or the building work that has not been carried out in a proper and workmanlike manner, as the case may be, within such reasonable time as is specified in the order. There is no indication that any determination in respect of those matters by the BDT (as opposed to the Registrar) may be reopened other than by way of review before the SAT. If a builder fails to comply with the Order to Remedy, subsection 12A(4a) empowers the BDT only to exercise a discretion whether or not to revoke the Order to Remedy and then make an Order to Pay under either subsection (1)(b) or (1a)(b).
There is no express power granted to the BDT to vary an Order to Remedy made by it under s 12A. If there was power to vary an Order to Remedy in any way, one would expect subsection 12A(4a) to contain such a provision. The BDT does have a general power to determine its own procedure to the extent that it is not prescribed by the BR Act or by the Builders' Registration Regulations (WA) (BR Regulations) (s 36(5)). That might support a power to vary an Order to Remedy by virtue of an implied incidental power which is evident as a matter of statutory construction: see Jackson v Sterling Industries Ltd (1987) 162 CLR 612 (Jackson) at 623 and DJL and the Central Authority (2000) 201 CLR 226 (DJL).
The BR Act is clearly intended to regulate registration of builders and through the provision of a specialist tribunal, to provide a relatively informal means of resolving building disputes. The jurisdiction of the BDT derives not only under s 12A, but also under the Home Building Contracts Act 1991 (WA) (HBC Act). The HBC Act is cognate legislation and regard can be had to it to construe the powers of the BDT. The HBC Act contains many provisions designed to protect consumers but it is difficult to find any provision which would justify an implication of a power to vary an Order to Remedy.
There is no obvious consequence flowing from a construction which excludes the power to vary an Order to Remedy made by the BDT.
The necessary enquiry envisaged by s 12A requires that the BDT must have sufficient information before it at that time to determine whether or not work is faulty or unsatisfactory, or has not been carried out in a proper and workmanlike manner. Further, as the Order to Remedy must specify a reasonable time within which the building work must be remedied, there should be evidence upon which to base a finding of what constitutes a reasonable time. That is evidence which will be subject to testing by the parties. Having made a determination of what work is necessary and what is the reasonable time to carry out that work, what obvious need is there for a power to vary any aspect of the order?
It could not be contemplated that the finding of faulty or unsatisfactory building work, or that building work has not been carried out in a proper and workmanlike manner, be revisited. There is no particular need to be able to extend the time for completion. Regardless of the terms of the order, there is nothing to prevent the beneficiary of the order agreeing to work being carried out at a later date. But, an owner is given a right under s 12A(4a) to apply to have the order revoked and an Order to Pay issued. We consider that it is consistent with the purpose of the BR Act that an owner be able to exercise this right, without further argument about whether or not the builder should be granted an extension of time within which to complete the remedial work. If the builder has failed to carry out remedial work the subject of an Order to Remedy within a time which the BDT has assessed to be reasonable, the owner should be able to insist upon an Order to Pay if unwilling to allow the builder further time.
We find that an Order to Remedy, other than one made by the Registrar under his delegated jurisdiction, is a final order, and that there is no express or implied power to vary it once made.
The owners raise a further argument, however, and that is that the 2005 order is capable of being construed as being no more than a reworking of the original Order to Remedy as affirmed in 1997. The 1997 order described the remedial work to be undertaken, fixed a time for completion 'subject to the remedial work performing satisfactorily' and preserved liberty to apply regarding any matter 'arising out of these orders'. It is submitted that this course was permissible by reason of the liberty to apply order which was made. We are unable to accept that argument. The purpose of a reservation of a liberty to apply is to enable further orders to be made which are necessary for the purpose of implementing and giving effect to the principal relief already pronounced in the action: see Cameron v Renouf [2008] WASC 60 (Cameron) at [28] and the authorities there cited.
As further explained by Justice Newnes in Cameron at [30], a reservation of liberty to apply is not inconsistent with the making of final orders for principal relief. The liberty is no more than a mechanism designed to obviate the necessity of a further suit being instituted to deal with matters that are essentially consequential on the making of the final order.
Given the conclusions to which we have come in relation to the final nature of an Order to Remedy and the matters in relation to which a final decision must be made, it is difficult to conceive that there is any matter in relation to which a reservation of liberty to apply could have any use. In any event, in this case, the Order to Remedy had been carried into effect by the builder purporting to comply with the Order to Remedy. It was open to the owners to contend, as they ultimately did, that the builder had failed to comply with the Order to Remedy, but there was nothing which required further working out, nor could there be, if, as we have found, there is no power to vary the Order to Remedy.
It follows that the BDT acted beyond its power in varying the original Order to Remedy, as affirmed, in the manner in which it did in 2005. The decision must therefore be set aside or possibly varied depending on consideration of whether it was open to the BDT to deal with Unit 2. Unit 2 was referred to in the original complaint but was not included in the original Order to Remedy.
It remains necessary to consider the further legal issues identified, as issue 2 and issue 3 above, because they affect what is the correct and preferable decision which the SAT is obliged to make on review pursuant to s 29(3) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).

Issue 2 - Was it permissible for the BDT to make orders relating to Unit 1 and Unit 2?

The complaint form which was filed with the BDT and commenced the proceedings on 20 May 1996 referred, relevantly, to subsidence and damage to brick paving, sheds and fences of Unit 2, Unit 3 and Unit 4 through lack of retaining. The remedy sought at that stage was 'repair and make good to prevent reoccurrence'.
An inspection was conducted by an inspector of the Builders Registration Board. The inspector's report dated 9 October 1996, the heading of which reflects that it is an amended notice of assessment which supersedes a notice of assessment dated 22 July 1996 (a copy of which has not been provided). The report refers to a complaint in relation to Unit 1 that the ground and fence at the rear left corner of the property is subsiding. How that complaint came to be made is unexplained, but it is obvious that a complaint had been received prior to the publication of the report on 9 October 1996, and indeed, prior to the date on which the inspection was conducted. That date is not apparent.
There is no prescribed form for the making of a complaint.
The original Order to Remedy No 394/96 issued by the Registrar under his delegated jurisdiction and dated 15 November 1996 dealt with the above complaint relating to Unit 1 and required that the builder, under the direction of a suitably qualified engineer, recover the fence, internal soil levels and associated works to the same levels and conditions established when the project was completed in 1991.
The builder's then solicitors, Anthony Torre & Monaco, responded to the Order to Remedy by letter dated 13 December 1996 requesting that the Registrar's decision be reviewed by the BDT 'to the extent that the decision is not accepted or conceded in the attached report from Structerre Consulting Chartered Engineers dated 9 December 1996'. The attached letter addressed Unit 1, and the only issue raised was a contention that the complaint related to associated works which it was submitted did not come within the jurisdiction of the BDT. In a further letter from Structerre Consulting Chartered Engineers (Structerre) dated 16 December 1996, other contentions were raised focusing specifically on Unit 1. It was contended that a tree had been planted in close proximity to the corner and it was possible that it had caused ground levels to move and to separate at the corner.
Following a hearing held on 8 September 1997, as outlined above, the BDT affirmed the Order to Remedy, including the orders made in relation to the ground and fence at the rear left corner of Unit 1. The 1997 decision was never appealed by the parties, and indeed, the BDT was persuaded to make the order it did because the builder changed its position, accepted its obligation to carry out the remedial work and sought an opportunity to do so, in opposition to the owners' application at that time for an Order to Pay.
The builder submits that, as the complaint in relation to Unit 1 was never part of the original complaint and was not referred to in the complaint form, the BDT lacked jurisdiction to deal with it.
Counsel for the owners contends that, by the builder's conduct at the 1997 hearing, it admitted responsibility for Unit 1 and should now be estopped from asserting otherwise. We do not accept that submission because the BDT is a creature of statute and its jurisdiction and powers are limited to those expressly or by implication conferred by the legislation which governs it ‑ see the Jackson and the DJL cases above. Either the BDT had jurisdiction or it did not. Jurisdiction cannot be established by an estoppel or by express consent.
However, on the facts of this case, it is evident that a complaint, in some form, had been made relating to Unit 1 prior to the inspection carried out in 1996 and the inspector's report dated 9 October 1996. The builder responded to that complaint. We therefore do not accept that the BDT's jurisdiction in 1997 and subsequently, as raised by this review, in 2005, can be impugned as the builder contends. If we are wrong in that conclusion, it is necessary to consider whether, on a proper construction of the BR Act, an original complaint can be amended.
Subsection 12A(2) and subsection 12A(3) read together stipulate that, until a preliminary notice, describing the complaint and calling for rectification, has been served, a complaint cannot be made to the BDT. Subsection 12A(1) and subsection 12A(1a) empower the BDT to make an order 'on complaint being made to it', and if satisfied 'that any building work has not been carried out in a proper and workmanlike manner by reason that the building work is faulty or unsatisfactory' (s 12A(1)) or 'if satisfied that in some respect (other than its being faulty or unsatisfactory) the building work has not been carried out in a proper and workmanline manner' (s 12A(1a)) (our emphasis).
If s 12A(1) and s 12A(1a) had referred to a requirement that the BDT be satisfied that any of the building work referred to in the preliminary notice had not been carried out in a proper and workmanlike manner, the provision would be clear and unambiguous. However, the reference to any building work in subsection 12A(1) and the failure in either subsection to refer back to the preliminary notice creates ambiguity.
Section 18 of the Interpretation Act 1984 (WA) provides that in the interpretation of a provision of a written law, a construction that would promote the purpose or object of the written law must be referred to a construction that would not promote that purpose or object.
The preliminary notice provisions, read with subsection 12A(1) and subsection 12A(1a), require that the complaint made to the BDT, which vests it with power, be limited to the matters identified in the preliminary notice. However, once vested with jurisdiction, does the purpose or object of the legislation require that the same degree of formality be followed in relation to any additional cause for complaint which might arise?
It is trite that the BR Act must be read as a whole. The apparent scope of a section to any Act may be limited or expanded upon by other sections in the Act.

The BDT is a specialist tribunal made up of a chairperson, who must be a legal practitioner (s 5A) and two members drawn from panels representing builder and consumer interests respectively (s 28(1), s 28(2) and s 35(2)). The BDT is not bound by rules of evidence and may inform itself in any manner as it thinks fit. There are no regulations prescribing the procedures of the BDT, and therefore it determines its own procedure (s 36). Section 45A prescribes that, subject to exceptions as therein stated, each party must present his or her own case and may not be represented by another person. If legal representation is permitted, the general rule is that costs are not to be awarded unless the BDT considers it fair to do so having regard to a number of considerations (s 38(4)).
The BDT is specifically charged that at all its sittings it shall act according to equity, good conscience and the substantial merits of the case and without regard to technicalities and legal forms (s 36(1)).
If the builder's construction were to be accepted, it would mean that if any new building work defects were identified, no matter at what stage proceedings had advanced before the BDT, it would be necessary to issue another preliminary notice and make a new complaint.
It is often the case in building disputes that not all defects are identified initially, particularly where owners do not engage the assistance of an appropriate expert at an early stage. When it becomes necessary to engage experts because of the need to provide suitable evidence to the BDT, other defects may become apparent. Often, minor defects, and sometimes even more serious ones, which were latent, become apparent prior to the hearing. If there were no power to amend a claim, it would mean that a new complaint would have to be lodged in relation to additional claims as they become known, and eventually, it is likely that those complaints would then have to be consolidated. That is a cumbersome process which would have to be followed which does not sit comfortably with a legislative framework under which a specialist tribunal is intended to provide an expeditious method of resolving building disputes: see Well Holdings Pty Ltd v Agostino [2001] WADC 174.
In our view, the purpose of the Act, which includes the establishment of a specialist tribunal, obviously intended to operate with as little formality as possible, is best furthered by a construction which enables the BDT to amend claims before it. There is no benefit in requiring one or more subsequent preliminary notices to be given, as further problems with a building work become known. Whenever a new issue is raised, and a party seeks to have it introduced into the dispute, the builder will still have an opportunity to indicate that there is no issue with it and that he will remedy the matter. The BDT will of course have a discretion to refuse to amend a claim if for any reason it is not appropriate to do so. There is simply no advantage in maintaining the formality for which the builder contends.
In this instance, there is nothing to indicate that there has ever been a formal amendment of the complaint, but having regard to the process which was followed, as outlined above, and the builder's acquiescence in that process, and in particular in dealing with the Unit 1 complaint, we consider that the complaint was amended informally and the matter was conducted on that basis by the BDT and both parties.
In relation to Unit 2, it is clear that the complaint included reference to the subsidence and damage to brick paving, sheds and fences of Unit 2, Unit 3 and Unit 4. It has never been suggested that the reference to Unit 2 was in error. As reflected in the 2005 reasons for decision, the manager of the strata company raised the omission to refer to Unit 2 in the Order to Remedy, as affirmed, in 1997.
We consider that the BDT was correct in approaching the matter in 2005 on the basis that the issue of Unit 2 was still outstanding, as it had not been dealt with. In any event, the BDT noted that it appeared that all four units had remedial work completed by about the middle of 1997. There are no particular findings to support that conclusion and there may be some doubt about whether remedial work was carried out. However, whatever the position might be in that regard, for the above reasons, we conclude that the BDT acted within its powers in dealing with Unit 2 in 2005.
Having regard to practical considerations, this conclusion does not affect the appropriateness or otherwise of making an Order to Pay covering all four units. The builder's opposition to an Order to Pay has never been put on this basis. The opposition is put on the basis that if Unit 1 and Unit 2 could not have been included within the BDT order in 2005, then if any Order to Pay is to be made, over the builder's opposition to it, the Order to Pay should relate only to Unit 3 and Unit 4. The builder has not sought the opportunity to carry out any remedial work so that if it is appropriate for an Order to Pay to be made in general terms, on the above findings, there is not reason why the order should not apply also to Unit 1 and Unit 2.

Issue 3 ‑ Does the SAT have power to issue an order to pay?

It is submitted for the owners that, as there was never an application before the BDT for an Order to Pay, it is not open to the SAT to 'make an order to pay under a different head of power that the BDT was not asked to exercise'. Reliance is placed on the principle outlined in Bakker and City of Nedlands [2005] WASAT 106 (Bakker) in a decision by Member Mr P McNab. Mr McNab at [47] referred to in Re Donald and Australian Securities and Investments Commission (2001) 64 ALD 717 in which the Administrative Appeals Tribunal set down the task for the Tribunal at 728 as follows (emphasis added):
Subject to any statutory qualifications to the contrary, the principles adopted in each case require the Tribunal first to identify the decision under review. It must then satisfy itself that it has jurisdiction to review that decision. It will do so by having regard to the Scheme of the legislation and remembering that no provision of the AAT Act gives it jurisdiction to review a decision. Having done that, the Tribunal must then identify the powers and discretions that rested in the decision‑maker when that decision was made. They may be found in the provision under which the decision was made or they may be found in other provisions of the statutory framework of which that particular provision is a part. (Emphasis added)
It is also submitted for the builder that s 29(9) of the SAT Act supports the builder's position. That section provides that s 29 and s 27 of the SAT Act do not extend to requiring or enabling the SAT to deal with a matter that is different in essence from the matter that was before the decision‑maker.
Subsequent to the hearing, the owners' solicitors filed further written supplementary contentions. The builder's solicitors did not oppose the filing of the supplementary contentions.
It is submitted for the owner that there is no difference in the essence of the matter under consideration. It is the same complaint concerning the work carried out by the builder which is before the SAT. Further, that the BDT in 2005 had the power to make an Order to Pay as provided for in s 12A(1)(b), s 12A(1a)(b) and s 12A(4a). It is submitted that the BDT was not functus officio as it had not discharged its duty or performed its function so that nothing further remains to be done.
The supplementary contentions also assert that the BDT chose in 2005 not to make an order to remedy but that does not prevent the SAT from now making 'such an order'. We assume this is submitted in error as the owners have never sought an Order to Remedy.
The terms of the order made on 15 April 2005 do not admit of easy characterisation. The first four orders, as set out above at [16], reflect an intent that preparatory steps be taken in preparing an engineering plan sufficient to stabilise and restore the ground to its original level and to permanently stabilise the ground level; and that the owners of Unit 1, Unit 2, Unit 3 and Unit 4 consent to the proposed action to effect that stabilisation of the land. Copies of the owners' approval and of the engineering plan were to be lodged with the BDT. Order 4 gave liberty to apply for an extension of time if the respondent failed to complete the action required by orders 1 to 3 within six weeks. Order 3 is ambiguous in that it refers to the provision of copies of the plan to the BDT and the written approval of the owners 'before taking action on the remedial work'. That is capable of meaning that remedial work was not to be undertaken pursuant to the order. Some further order would then have to have been contemplated. But if that was intended, there appears to be no need for order 5 which granted further liberty to apply on the part of the owners if untoward delays took place in remedying the situation. Order 5 can only be explained on the basis that the BDT contemplated that there may be delays in the completion of the remedial work. It is otherwise a completely unnecessary order.
In our view, the order is to be properly construed as an Order to Remedy. But, if we are wrong in that view, the order would have to be regarded as no more than a direction order as a precursor to a varied Order to Remedy being issued. For the reasons which we have given above in respect of issue 1, that was a course not open to the BDT.
We accept the submission for the owners that the BDT was not functus officio in 2005. The reason for that is that under s 12A(4a), the BDT retained the power to revoke the 1997 Order to Remedy and instead issue an Order to Pay.
The definitive issue raised by both parties is therefore whether or not the SAT, if it were to issue an Order to Pay, would be dealing with a matter that is different in essence from the matter that was before the BDT or whether, consistent with Bakker, the grant of an Order to Pay would involve the exercise of powers not included within the decision under review. The builder's contention is that the SAT would be acting under a different head of power that the BDT was not asked to exercise.
It is therefore necessary to have regard to the way in which the matter progressed before the BDT. It is clear from the 1997 reasons for decision that the owners were then seeking an order to pay. The BDT was persuaded instead to affirm the Order to Remedy in order to give the builder an opportunity to carry out the necessary remedial work.
In January 2003, the builder was advised by the BDT that the matter was ongoing. During the 2005 hearing, there was a degree of ambiguity about the relief being sought by the owners. Nevertheless, after some debate about whether the builder should be required to lodge some form of performance guarantee, the matter seems to have been left on the basis that if the builder failed to perform remedial work within a timely manner, the owners would seek 'something that would allow my clients the ability to perform the work themselves' (hearing book p 218).
It is, we think, sufficiently clear that the owners were prepared to proceed in the manner foreshadowed by the chairperson of the BDT, who in the exchange referred to above, indicated that the normal course was to allow the builder to carry out remedial work within a specified time, and that failing compliance, it would be open to 'the owners to come back to the Tribunal [BDT] with quotations to get the various aspects completed and an Order to Pay can then be made in relation to those matters'. It was therefore an Order to Remedy, or a variation to the original Order to Remedy, which was being sought in 2005.
Section 12A(4a) provides that if the BDT is satisfied that an Order to Remedy building work has not been complied with, it may revoke the Order to Remedy and make an Order to Pay.
The 2005 reasons for decision reflect that the BDT was satisfied that the remedial work undertaken 'was totally inappropriate and was nothing more than a temporary solution to a problem which was going to recur and shortly after did so' ([4.4]). In the circumstances, and consistent with the reasons given above in relation to issue 1, there was only one course open to the BDT in 2005, and that was to consider revocation of the Order to Remedy and the making of an Order to Pay.
Following Bakker, we must firstly identify the decision under review, having regard to the above relevant legislative provision. The BDT had before it a complaint concerning the effectiveness of the remedial work undertaken. The BDT had to determine that complaint, and it was that which was the subject of the further hearing in 2005, which resulted in the orders made. In essence, that is the matter which is before the SAT.
We must then identify the powers and discretions that vested in the decision‑maker when the 2005 decision was made. The only power and discretion available to the BDT in dealing with the matter before it was that provided for by s 12A(4a). The BDT, by its 2005 order, purported to vary the original Order to Remedy, and that it had no power to do.
Section 27 of the SAT Act provides that the purpose of the review is to produce the correct and preferable decision at the time of the decision upon the review. The only discretion which the BDT had in dealing with the matter before it was whether or not to revoke the Order to Remedy and substitute an Order to Pay. On the facts before it, that is clearly the course which it should have followed, but did not. There is no head of power under which the BDT could have acted other than s 12A(4a).
The review before the SAT is by way of a hearing de novo. It was therefore appropriate for the SAT, when granting leave, to raise the possibility that the correct and preferable decision might involve the making of an Order to Pay. The SAT's subsequent directions hearings ensured that relevant evidence was placed before the SAT for this purpose. That is the course which the BDT should have followed on receipt of the complaint in November 2002 concerning the remedial work. In our view, the SAT has power to make an Order to Pay consistent with the principles set out in Bakker and without offending s 29(9) of the SAT Act.

Issue 4 ‑ The effect of delay

Counsel for the builder, in closing oral submissions, referred to the length of delay between the date of completion of the units and the current time of some 17 years. In the builder's written contentions, it was submitted that any Order to Pay should take into account the fact that such an order, if it was ever justified, should have been made no later than 1998 when the respondent was invited to say whether the remedial work had resolved the matter. Further, that the lack of response then should militate against the applicant being liable for 'current' costs so that the costs should be assessed as at 1998.
The builder's oral submissions hold no appeal with the SAT. Delay has been occasioned by the proceedings for the review of the 2005 order. Neither party can be blamed for the BDT acting without power in making the order which it did in 2005.
The BR Act provides the BDT with a discretion to either make an Order to Remedy or an Order to Pay. As the chairperson explained during the 2005 hearing, the BDT usually provides a builder with an opportunity to remedy defective work and issues an Order to Pay only if the builder fails to comply with that Order to Remedy. If the owner unreasonably presses for an Order to Pay, the owner will usually only be awarded what it would have cost the builder to carry out the work: see Nelson v Mardesic 22 SR (WA) 42. If the BDT had concluded in 1997 that the owners should have an Order to Pay, the cost would have been fixed at that date. It was the builder who pressed for an opportunity to carry out remedial work. We therefore reject that the 17‑year period of delay has any relevance.
There is, however, some force in the builder's written submissions. On 10 December 1997, the BDT wrote to the owners' then solicitor requesting to be provided with written comments in regard to the matter:
and the current position if the remedial work is considered to be incomplete. If no notification is received at this office by 9 January 1998, action on the matter will cease.
There is nothing to indicate that there was any response to this letter. At the same time, the evidence as to when the erosion of soil levels became apparent, is anything but clear.
Ms Helen Margaret Harris, the owner of Unit 3, gave evidence at the 2005 hearing. She was asked by the chairperson how long after the work was redone, did it (the movement of pavers and the back fence) reappear. She responded to the effect that she was 'really guessing to be specific' (hearing book p 127). She was later pressed on this again under cross‑examination. She responded:
It probably would have been I don't know probably a good 12 months, maybe. (hearing book p 134)
It appears that the remedial work may have been completed as late as September 1997 (see BDT reasons for decision [3.1]). It may therefore have been sometime after late 1998 before the change in site levels first began to appear.
In all the circumstances, we think that it is probable that at some stage in late 1998 or early 1999, the owners should have appreciated that the remedial works had failed or were failing. It was not until November 2002 that the strata manager raised the matter with the strata company and that, in turn, led to the matter being raised with the BDT. The first notification that the builder received of an ongoing issue was through the BDT's letter dated 15 January 2003. Consequently, it appears that there has been a delay of approximately four years for which the owners are responsible. We have had no evidence provided by either party of the change in building costs during this period.
We consider that the intent of s 12A is to provide an owner with sufficient monies to cover the reasonable cost of carrying out necessary remedial work. We shall examine shortly the owners' evidence provided with a view to establishing that cost. But, it is the builder which contends that costs should be reduced by reason of delay, and therefore, it was the builder which was obliged to place evidence before the SAT of the extent costs may have increased. In the circumstances, we are not able to make any assessment of the extent to which any amount to be awarded to the owners should be reduced, by reason of this period of delay.

Issue 5 ‑ At what date should the cost of remedial work be assessed?

As we have said above, the intent of s 12A is to provide the owner with an amount of money which is sufficient to allow the owner to carry out the remedial work. However, the grant of an Order to Pay may well be delayed in the usual course, because a builder is first given an opportunity to carry out remedial work.
It is clear, therefore, that contractual principles do not come into play in determining the date at which costs should be assessed. Under contractual principles, it might be argued that the damages must be assessed as at the date of breach. Here, particularly if the builder has been given an opportunity to carry out remedial work, the owner would be placed at a disadvantage unless the cost as at the date of hearing was the date at which the costs must be assessed.
In this case, as we have opined, neither party is responsible for the BDT having acted beyond its power in 2005. The BDT should properly have then issued directions aimed at ensuring that evidence was placed before it of all matters necessary to make an assessment of the costs payable to the owners. This review has been by way of a hearing de novo and we can see no reason why the remedial building costs should therefore not be awarded as assessed at the date of review.

The total legal costs and disbursements allowed totals $21,257.50, and 80% thereof equates to $17,006.
For the reasons given above, the costs due to each party are fixed as follows.

Summary of costs allowed

(a) The builder:
Attendances before Tribunal

Item No	Amount Claimed	Amount Allowed
1	$150	}
2	$300	}
3	$300	}
4	$300	} $1,575
5	$300	}
6	$300	}
7	$300	}
8	$1,200	$1,200
9	$300	Nil
10	$600	Nil
11	$300	Nil
12	$300	Nil
13	$300	Nil
14	$300	Nil
15	$300	Nil
16	$300	Nil
17	$600	Nil
18	$300	Nil
19	$300	Nil
20	$600	Nil
21	$300	Nil
22	$6,000	Nil

Preparation of documents

Item No	Amount Claimed	Amount Allowed
1	$500	$500
2	$1,000	}
3	$2,000	} $2,000
4	$1,000	}
5	$1,000	Nil

Preparation for hearings

Item No	Amount Claimed	Amount Allowed
1	$1,500	$1,500
2	$6,000	Nil

Total	$26,950	$6,775
Fixed at 80%	$5,420

(b) The owner:

Item No	Date	Amount Claimed	Amount Allowed
1	Various	$3,465	$1732.50
2	15/06/06	$2,640	Nil
13/07/06	$82	Nil
3	25/08/06	$462	Nil
29/07/07	$1,551	$1,551
4	15/10/07	$1,650	$650
5	20/08/08	$330	Nil
6	Various	$2,475	Nil
7	28/08/06	$1,155	Nil
8	19/01/07; 16/02/07	$1,815	$1,815
9	Various	$5,610	$5,610
10	12/08/08; 13/08/08	$4,950	$4,950
11	20/01/09	$330	$330
Total	$26,515	$16,638.50

Disbursements

Item No	Amount Claimed	Amount Allowed
12	$3,960	$3,960
13	$250	$100
14	$4	Nil
15	$45	Nil
16	$500	$500
17	$59	$59
Total	$4,818	$4,619

Combined total

Amount Claimed	Amount Allowed
$31,333	$21,257.50
Fixed at 80%	$17,006

Order

The Tribunal will accordingly issue orders as follows:
1.The applicant's costs in respect of the application for leave are fixed in the sum of $5,420.
2.The respondent's costs, comprising legal fees and disbursements including expert witness costs, in respect of the review proceedings, are fixed in the sum of $17,006.
3.The applicant must pay to the respondent the difference between the costs fixed in accordance with order 1 and order 2 above in the sum of $11,586 on or before 15 May 2009.
4.The parties' respective applications for costs are otherwise dismissed.
I certify that this and the preceding [40] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER

Annexure A

Annexure B