COOMBES and JC METAL FABRICATION PTY LTD
[2013] WASAT 100
•26 JUNE 2013
COOMBES and JC METAL FABRICATION PTY LTD [2013] WASAT 100
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2013] WASAT 100 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1357/2011 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MS NATASHA OWEN-CONWAY (MEMBER) | 26/06/13 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Dismissed | ||
| B | |||
| PDF Version |
| Parties: | CHARLES COOMBES JC METAL FABRICATION PTY LTD |
Catchwords: | Costs Legal and expert costs Runs on own facts Genuine dispute between parties No order for costs |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 49, s 133 State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2) |
Case References: | Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 Millrock Resources Pty Ltd and Questa Pty Ltd [2012] WASAT 229 Pearce & Anor and Germain [2007] WASAT 291 (S) |
Orders | On the application determined on the documents by Member Natasha Owen-Conway, it is on 26 June 2013 ordered that: ,1. The applicant's application for costs is dismissed.,2. The respondent's application for costs is dismissed. |
Summary | The applicant and the respondent were each partially successful in their claims against each other. Ultimately, the Tribunal found that the applicant's claim in monetary terms exceeded the respondent's claim. As the applicant's and respondent's claims were consolidated, the Tribunal made one order for the net position which favoured the applicant. The parties each made an application for costs. The applicant claimed the cost of various disbursements including the expert report and attendance fees. The respondent claimed legal costs and the cost of expert report and attendance fees. The Tribunal considered that the proceedings involved genuine disputes as to the rights and liabilities of the parties and the quantum of their respective claims. In such a proceeding, the Tribunal considered that the provisions of s 87(1) of the State Administrative Tribunal Act 2004 (WA) should not be displaced by an order that one party pay the other party's costs of the proceedings, legal or otherwise. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : COOMBES and JC METAL FABRICATION PTY LTD [2013] WASAT 100 MEMBER : MS NATASHA OWEN-CONWAY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 26 JUNE 2013 FILE NO/S : CC 1357 of 2011
- CC 1358 of 2011
- Applicant
AND
JC METAL FABRICATION PTY LTD
Respondent
Catchwords:
Costs Legal and expert costs Runs on own facts Genuine dispute between parties No order for costs
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 49, s 133
State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)
Result:
Dismissed
Summary of Tribunal's decision:
The applicant and the respondent were each partially successful in their claims against each other. Ultimately, the Tribunal found that the applicant's claim in monetary terms exceeded the respondent's claim. As the applicant's and respondent's claims were consolidated, the Tribunal made one order for the net position which favoured the applicant. The parties each made an application for costs. The applicant claimed the cost of various disbursements including the expert report and attendance fees. The respondent claimed legal costs and the cost of expert report and attendance fees. The Tribunal considered that the proceedings involved genuine disputes as to the rights and liabilities of the parties and the quantum of their respective claims. In such a proceeding, the Tribunal considered that the provisions of s 87(1) of the State Administrative Tribunal Act 2004 (WA) should not be displaced by an order that one party pay the other party's costs of the proceedings, legal or otherwise.
Category: B
Representation:
Counsel:
Applicant : Mr Singh
Respondent : Mr Widdicombe
Solicitors:
Applicant : Friedman Lurie Singh & D'Angelo
Respondent : Cockburn Central Law
Case(s) referred to in decision(s):
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
Millrock Resources Pty Ltd and Questa Pty Ltd [2012] WASAT 229
Pearce & Anor and Germain [2007] WASAT 291 (S)
Introduction summary of dispute and final decision
1 By way of background the respondent commenced proceedings initially against the applicant in the Magistrates Court. The applicant defended those proceedings and raised a counterclaim. The applicant commenced proceedings in the Building Disputes Tribunal. The Magistrates Court proceedings were transferred to the Building Disputes Tribunal by order of the Magistrates Court. On 9 August 2011 the two Building Disputes Tribunal matters were transferred to the Building Commissioner of Western Australia (s 133 of the Building Services (Complaints Resolution and Administrations) Act 2011 (WA) (BS(CRA) Act). The Building Commissioner of Western Australia referred the two former Building Disputes Tribunal matters to this Tribunal pursuant to s 11(1)(d) of the BS(CRA) Act. The two matters were consolidated in the Tribunal.
2 The applicant claimed various amounts against the respondent. At the highest, the applicant claimed $34,404.70 for remedial work to a large prefabricated shed (Exhibit 1 page 26) or demolition costs of $12,650 (Exhibit 1 pages 26 and 27) and the cost of reconstruction of the prefabricated metal shed that was constructed by the respondent. The original contract price between the parties identified a price of $19,500, including GST, and the cost of reinstatement could have been as high as $19,500, including GST.
3 The applicant's claim for breach of contract was based upon the alleged failure of the respondent to construct not only the prefabricated metal shed but a variety of additions to that shed, which works the respondent was allegedly contractually obliged to perform. The applicant's case was that the contract price of $19,500, including GST, included a range of additional works, such as the installation of roof insulation, electrical lighting and wiring throughout the shed; the construction of a brick façade; the construction of planter boxes to the sides of the shed; the construction of steps to the personal door of the shed; and the construction and installation of gates to the side of the shed. These aspects of the applicant's claim were dismissed on 4 January 2013, upon the basis that the contract between the applicant and the respondent did not oblige the respondent to do more than construct the prefabricated shed.
4 The applicant succeeded in establishing that the shed, as constructed by the respondent, was not constructed in a proper and proficient manner, and was faulty and unsatisfactory. The applicant succeeded in establishing that the cost of the remedial work necessary to remediate any faulty or unsatisfactory work and ensure structural sufficiency of the shed amounted to $11,220, plus GST ($12,342 inclusive of GST). The issue of whether the shed was structurally sound and constructed in a proper and proficient manner, free of fault or defect; whether remediation or demolition and reinstatement was necessary or whether remedial work was sufficient; and what was the necessary remedial work and the cost of the necessary remedial work, was agreed between the parties' respective experts following conferrals of the experts on 14 February 2012 and 4 July 2012 as identified in the joint expert reports.
5 The respondent originally claimed the unpaid balance of the contract price, plus several alleged variation prices for additional work undertaken by the respondent. The respondent originally claimed $9,475.18 against the applicant. In short, the respondent was successful in establishing that he was entitled to payment of the unpaid balance of the contract price (after various credits that he had volunteered) in the sum of $5,000, inclusive of GST, pursuant to his contract claim. The respondent, however, was unsuccessful in establishing that he was entitled to any greater sum as and by way of the alleged variations to the contract price.
6 As the two applications were consolidated, the Tribunal made an order of the net position which favoured the applicant. On 4 January 2013 the Tribunal made an order that the respondent pay to the applicant $7,432, inclusive of GST (that is, $12,342 inclusive of GST less $5,000 inclusive of GST).
Costs claims
7 Both parties made an application that they be awarded a sum by way of compensation for their costs. The applicant now seeks $11,023 in engineering report and attendance fees; $2,689.25 in building report and attendance fees; and $1,627.10 in transcript fees. This amounts to a total of $15,341.11.
8 Notwithstanding the fact that the respondent was unsuccessful on this issue, it seeks to recover its expert engineering fees upon the basis that the Tribunal concluded that the shed did not require demolition. The respondent also seeks its legal costs upon the basis that it was more successful than the applicant proportionately to the amount that was claimed by the respondent. The respondent reasons that the applicant succeeded by only approximately 'one quarter' of the value of their claim, whereas the respondent succeeded as to 'more than half' of its claim. The respondent seeks $8,852.50 in engineering fees and $24,540.54 in legal costs. The respondent says that its claim was relatively simple and did not require expert fees or legal costs to be incurred. The respondent says that it was compelled to engage experts because of the applicant's claim. This argument ignores the fact that the applicant was successful on the structural issues before the Tribunal and that the respondent chose to take issue with the applicant about those structural issues.
9 Although the applicant was successful in establishing that the shed required substantial remediation work, the applicant did not ever recognise the respondent's claim for unpaid monies pursuant to the contract. Nor did the applicant resile from his claim that the respondent was contractually obliged to perform additional works. On the other hand, the respondent did not acknowledge the defects in the construction of the shed and maintained a claim for 'variations' to the contract price.
10 Notwithstanding the eventual agreement of the experts on the major issue of the construction of the shed and its soundness, the parties' respective breach of contract claims which were not allowed by the Tribunal resulted in the final hearing time being lengthened. At the heart of the dispute was a failure of both parties to identify the parameters of their agreement and to record the same in writing. This failure gave rise to disputes about what formed the scope of the works of the contract between them and which of the parties was to direct the construction.
The law
11 Section 87 of the State Administrative Tribunal Act2004 (WA) (SAT Act) provides:
(1) Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2) Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35.
(3) The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
(4) Without limiting anything else that may be considered in making an order for the payment by a party of the costs of another party where the matter that is the subject of the proceeding comes within the Tribunal’s review jurisdiction, the Tribunal is to have regard to
(a) whether the party (in bringing or conducting the proceeding before the decision-maker in which the decision under review was made) genuinely attempted to enable and assist the decision-maker to make a decision on its merits;
(b) whether the party (being the decision-maker) genuinely attempted to make a decision on its merits.
(5) The rules may deal with the effect of certain offers to settle, and responses, if any, to the offer, on the making of an order for the payment by a party of the costs of another party.
(6) The Tribunal may order that the representative of a party, rather than the party, in the representative’s own capacity compensate that or any other party for costs incurred because the representative acted in, or delayed, the proceeding in a way that resulted in unnecessary costs.
12 Section 49 of the BS(CRA) Act provides:
(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.
(2) The Building Commissioner must not award costs to a party for the services of a representative of that party unless, in the opinion of the Building Commissioner, it is fair to do so, having regard to
(a) whether a party has acted in relation to a complaint in a way that unnecessarily disadvantaged another party; or
(b) whether a party has been responsible for prolonging unreasonably the time taken to deal with the complaint; or
(c) the relative strengths of the claims made by each of the parties; or
(d) any other matter the Building Commissioner considers relevant.
…
… grants the Tribunal the broadest possible discretion in relation to costs and should be regarded as being entirely neutral in effect, [in relation to its effect upon s 87 of the SAT Act] but should be applied in a manner which is consistent with and reinforces the objectives and procedures of the Tribunal. …
14 The primary position under s 87 of the SAT Act is that each party bears its own costs and no costs order will be made specifically ordering one party to pay the other party costs in a Tribunal matter.
15 Essentially, where a party has conducted itself unreasonably, particularly where their conduct gives rise to unnecessary costs being incurred by the other party, it will fall within the circumstances described his Honour Deputy President Chaney J (as he then was) in Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce).
Consideration
16 In this matter there was a genuine dispute as to the question of liability for the manner of construction of the shed. This was resolved largely by reference to the expert evidence. The remaining contractual disputes were also genuine. Similarly to Millrock Resources Pty Ltd and Questa Pty Ltd [2012] WASAT 229, the confusion in the case and the argument about the respective rights of the parties arose out of the failure of the parties to properly record the terms of their agreement with each other and clearly identify the price that was to be paid for the work that was to be performed. Notwithstanding the fact that both parties were legally represented and engaged expert engineers to assist them, the Tribunal is satisfied that between the parties there was a genuine dispute as to their respective rights. Where that is the position, the Tribunal should not depart from its primary statutory position, as provided for in s 87(1) of the SAT Act, that no order for costs should be made, so that each party bears its own costs of the proceeding (Pearce).
17 The Tribunal does not accept the respondent's submission concerning the comparison between the parties' success proportionally to their claims. That submission is a variation on the proposition that costs follow the event or result, which is contrary to the principles referred to above.
18 For these reasons the Tribunal considers that the position as identified in s 87(1) of the SAT Act in respect of costs generally, including legal costs, should not be displaced in this proceeding by the exercise of the Tribunal's discretion pursuant to s 87(2) of the SAT Act or s 49 of the BS(CRA) Act.
Orders
1. The applicant's application for costs is dismissed.
2. The respondent's application for costs is dismissed.
I certify that this and the preceding [18] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS NATASHA OWEN-CONWAY, MEMBER
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