CRAWFORD-SKILTON and HALPD PTY LTD
[2024] WASAT 135
•4 DECEMBER 2024
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION: CRAWFORD-SKILTON and HALPD PTY LTD [2024] WASAT 135
MEMBER: MS N OLDFIELD, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 4 DECEMBER 2024
FILE NO/S: CC 74 of 2024
CC 261 of 2024
BETWEEN: GAYLE ANN CRAWFORD-SKILTON
Applicant
AND
HALPD PTY LTD
Respondent
Catchwords:
Building services complaint - Costs - Conduct of parties - Turns on own facts
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 49, s 49(1), s 49(7)
Legal Profession (State Administrative Tribunal) Determination 2024
State Administrative Tribunal Act 2004 (WA), s 9, s 11(8), s 87, s 87(1), s 87(2)
State Administrative Tribunal Rules 2004 (WA)
Result:
Application successful
Representation:
Counsel:
| Applicant | : | N/A |
| Respondent | : | N/A |
Solicitors:
| Applicant | : | N/A |
| Respondent | : | Palmos Legal |
Case(s) referred to in decision(s):
Commissioner for Consumer Protection and Del Valle [2024] WASAT 36
Goodrick and J-Corp Pty Ltd [2023] WASAT 70
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
These proceedings relate to complaints made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) which were referred to the Tribunal by the Building Commissioner.
The applicant, Ms Crawford-Skilton, was granted leave to withdraw her applications in both proceedings. As a consequence, the respondent HALPD Pty Ltd (HALPD) applied for its costs in relation to the proceedings.
For the reasons which follow, I am satisfied it is fair and reasonable for costs to be allowed to the respondent in the sum of $6,000.
Issue for determination
The issue which must be determined is whether HALPD is entitled to an award of costs in its favour.
Relevant legal principles
Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states each party is to bear their own costs unless otherwise specified in the SAT Act, in the enabling Act or by an order pursuant to s 87(2) of the SAT Act. Section 87(2) states the Tribunal has the discretion to order that a party pay a portion or all of the costs of another party.
Section 49(1) of the BSCRA Act provides the Tribunal may make a costs order it considers appropriate in relation to proceedings arising from a building service or home building work contract complaint. Section 49(7) states the provisions of s 49 do not limit the powers of the Tribunal under the SAT Act. Accordingly, the exercise of discretion pursuant to s 49 of the BSCRA Act should be exercised consistently with the Tribunal's discretion pursuant to s 87 of the SAT Act.
The applicable principles are well established.[1] They might be relevantly summarised as follows:
(a)In addition to the specific provisions of the SAT Act and State Administrative Tribunal Rules 2004 (WA), the facts which the Tribunal is obliged to consider or precluded from considering are to be determined from the subject matter, scope and purpose of the SAT Act. The nature of the dispute is also a relevant consideration.
(b)The discretion to order the payment of costs is to be exercised only if fair and reasonable to do so in all the circumstances of the proceedings.
(c)The presumptions regarding costs orders which apply in court proceedings do not apply.
(d)The party seeking to be paid costs has the onus of satisfying the Tribunal such an order is justified. This is so even where a party is granted leave to withdraw.
(e)Each party is presumed to be aware of the statutory objectives of the Tribunal. It is relevant to consider whether a party can establish another party's conduct in relation to the proceedings has impaired the attainment of the Tribunal's objectives. If a party pursues claims without merit, acts in a way which unnecessarily prolongs the proceedings or acts in a manner which is unreasonable or inappropriate, that may give rise to a costs order.
(f)A party's failure to succeed in all its contentions does not itself mean the party has acted contrary to the Tribunal's objectives.
[1] For example, Goodrick and J-Corp Pty Ltd [2023] WASAT 70.
When the Tribunal exercises its discretion to award costs, it will take a broad and robust approach to the fixing of the amount it considers reasonable.[2]
[2] Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S).
History of the proceedings
CC 74/2024
Complaint BC2023-1383 was transferred to the Tribunal by the Building Commissioner on 7 February 2024. There were two items of complaint - the location of the meter box and delay in the completion of the construction works.
The first directions hearing was to have been on 23 February 2024. Ms Crawford-Skilton requested it be adjourned so that she might lodge an additional complaint with the Building Commissioner. HALPD consented to the adjournment. The directions hearing proceeded on 19 March 2023 and the Tribunal made orders scheduling a mediation and requiring the parties to file confidential mediation statements and books of relevant documents.
On 9 April 2024 Ms Crawford-Skilton applied to relist the mediation conference because she wished more time to engage legal representation and file documentation. The application stated Ms Crawford-Skilton was not aware of when her legal representation would be available to attend a mediation.
A directions hearing was held on 26 April 2024 to consider the application, which also addressed issues relating to Ms Crawford‑Skilton's failure to file documents on time or at all. The application to vacate and relist the mediation was refused. It is noted Ms Crawford-Skilton was not then, nor at any other time, represented by a legal practitioner in the proceedings.
On 29 April 2024 Ms Crawford-Skilton again applied to have the mediation conference rescheduled, on the basis she was having computer problems and was waiting to receive documents from HALPD. This application was refused by the Tribunal. The mediation was held accordingly and orders were made scheduling a directions hearing.
On 1 May 2024, orders were made extending the time in which Ms Crawford-Skilton could lodge her book of documents to 31 May 2024, requiring Ms Crawford-Skilton to lodge a statement of issues, facts and contentions (SIFC) not exceeding 3 pages in length by 28 June 2024 and for HALPD to lodge a SIFC by 12 July 2024.
Correspondence from HALPD filed with the Tribunal indicated Ms Crawford-Skilton sent them a 16-page statement of issues facts and conditions on 24 July 2024. That document was not lodged with the Tribunal by Ms Crawford-Skilton, though it appeared to be attached to a submission of HALPD. HALPD complained Ms Crawford‑Skilton had not complied with the Tribunal's orders and the document did not adequately explain the claims against them.
Ms Crawford-Skilton lodged a book of documents comprising 282 pages on 18 July 2024 and lodged a further bundle of documents (of 346 pages) on 25 July 2024.
On the same date, Ms Crawford-Skilton also lodged a SIFC which was 4 pages in length. The issues identified in that document were whether:
(a)a price increase by HALPD of $44,500 was justified or if they should be ordered to repay that sum;
(b)there was a basis for imposing an alleged 'construction hold';
(c)there ought to have been orders for the relocation of the meter box;
(d)HALPD ought to be ordered to pay compensation in the sum of $30,420 on account of a delay in completion;
(e)there was a basis for ordering HALPD to modify the kitchen benches to allow for the future installation of concealed lighting, to install a kitchen island bench and to install power outlets in the main and ensuite bathrooms which would accommodate the installation of LED mirrors.
That document also contained an allegation by Ms Crawford‑Skilton the conduct of HALPD had caused her to suffer losses in excess of $35,708.
At a directions hearing on 26 July 2024, orders were made requiring Ms Crawford-Skilton by 19 August 2024 to file an updated and finalised book of documents and written statements of each person she intended to call as a witness in the final hearing. HALPD was ordered to provide a responsive SIFC, their book of documents and witness statements by 2 September 2024.
By orders dated 2 August 2024 a final hearing was listed to commence on 25 September 2024.
Ms Crawford-Skilton lodged a further bundle of documents on 21 August 2024. The bundle consisted of 182 pages. Witness statements were not filed.
On 2 September 2024 HALPD lodged a responsive SIFC and a bundle of documents. On 3 September 2024 a Notice of Legal Representation was lodged on behalf of HALPD.
On 6 September 2024 the Tribunal made orders that Ms Crawford‑Skilton was to file any further documents by 9 September 2024 and that no further documents would be accepted from her after that date unless exceptional circumstances were shown.
On 13 September 2024 Ms Crawford-Skilton lodged a further bundle of documents comprising 193 pages.
On 19 September 2024 Ms Crawford-Skilton lodged a letter which stated 'following the advice of my lawyer … I formally request to withdraw matters CC/74/2024 & CC/261/2024 under Section 46 (1)' of the SAT Act. Orders granting the withdrawal were made on 20 September 2024 by Member Hartley.
Following the lodgement of the costs application by HALPD, the President altered the constitution of the Tribunal pursuant to s 11(8) of the SAT Act for the purposes of determining that application.
CC 261/2024
Complaint BC2024-866 was transferred to the Tribunal by the Building Commissioner on 26 April 2024. There were three items of complaint - an alleged unfair price increase, an allegation construction had been put on hold as a result of the complaint in BC2023-1383 and allegations the design or construction of kitchen cabinetry was contrary to the parties' agreement.
On 26 April 2024 the Tribunal made orders this matter be heard and determined concurrently with related matter CC 74/2024 and the parties attend mediation at the same time as the mediation in the related matter.
Following the mediation various orders were made for the filing of documents and the listing of hearings similar to those made in matter CC 74/2024. No documents were lodged by either party in this proceeding (save for the notice of HALPD appointing legal representation) until orders were made permitting Ms Crawford‑Skilton to withdraw her claim on 20 September 2024.
As noted above, the Tribunal was reconstituted pursuant to s 11(8) of the SAT Act for the purposes of determining the present application for costs.
The application by HALPD
HALPD argued the following facts and circumstances supported their being awarded costs:
(a)Given the nature of the claims against them and the quantum claimed by Ms Crawford-Skilton, it was reasonable for HALPD to engage legal representation.
(b)The application for withdrawal was served upon them on the morning of Friday, 20 September 2024 and the final hearing was listed to commence on Wednesday, 25 September 2024.
(c)Ms Crawford-Skilton unreasonably rejected a reasonable settlement offer which would have finalised the parties' claims in relation to the items of complaint. Instead, the withdrawal preserves the right of Ms Crawford-Skilton to recommence her claims in the Tribunal or another forum.
(d)Given there has been no finalisation of the claims of Ms Crawford-Skilton, the costs incurred by HALPD in these proceedings have, in effect, been wasted.
(e)The conduct of Ms Crawford-Skilton in repeatedly failing to comply with Tribunal orders was not in accordance with the objectives of the Tribunal.
In oral submissions at a directions hearing on 6 November 2024, HALPD submitted the costs incurred in these proceedings had been demonstrated to have been wasted for the following reasons:
(a)the rejection by Ms Crawford-Skilton of the settlement offer and her subsequent application to withdraw, were both done pursuant to legal advice;
(b)statements made by Ms Crawford-Skilton of an intention to recommence her claims in another forum; and
(c)the expressed intention of Ms Crawford-Skilton to not recommence proceedings immediately but at an undetermined point in the future meant there was unlikely to be any residual benefit from the work which was done in preparation for the final hearing and it was likely preparation would have to recommence entirely anew.
HALPD sought costs in the total sum of $8,192.80 which was comprised by the following:
Description
Date
Total time (hours)
Rate per hour
Amount
Prepare and file a notice of legal representation
3 September 2024
0.3 (C/PL)
$187
$56.10
Review documents, consider compliance with orders, meeting with client and preparation for hearing on 6 September.
3-6 September 2024
3.8 (SP)
1.5 (C/PL)
$484
$187
$1,839.20
$280.50
Travel and attendance at directions hearing 6 September
6 September 2024
1.5 (SP)
$484
$726
Drafting offer of settlement and preparation for final hearing
10-19 September 2024
6 (SP)
6.3 but say 5 (C/PL)
$484
$187
$2,904
$935
Costs application and submissions
20-26 September 2024
3 (SP)
$484
$1,452
Total
14.3 (SP)
6.8 (C/PL)
$8,192.80
'C/PL' - clerk or paralegal
'SP' - senior practitioner
It is evident from the materials the actual legal costs incurred by HALPD were higher than the amount claimed in this application because:
(a)it did not claim legal costs incurred before 3 September 2024; and
(b)the legal rates claimed were limited to the maximums contained in the Legal Profession (State Administrative Tribunal) Determination 2024 (Determination), though the rates paid by HALPD were greater.
The response from Ms Crawford-Skilton
By correspondence lodged with the Tribunal Ms Crawford‑Skilton described grievances with HALPD and their solicitor, provided details of her financial circumstances and stated that because she was 'devoid of funds' she rejected the 'offer' of HALPD.
At the directions hearing of 6 November 2024, Ms Crawford‑Skilton:
(a)confirmed her opposition to the application for costs;
(b)advised she did not intend to make any further comment or submission regarding the substance of the application;
(c)expressed a preference there be no hearing of the application and the decision be made on the documents; and
(d)confirmed her withdrawal had been on legal advice to preserve her legal position and she intended to recommence her claims against HALPD in another forum in the future, provided her financial circumstances did not prevent her from doing so.
Consideration
The discretion to award costs
I accept the claims were sufficiently complex to justify the engagement of legal representation by HALPD. This is because the claims by Ms Crawford-Skilton appear largely or wholly to be based upon the interpretation of legislation and the parties' contract, and the quantum potentially to be claimed by Ms Crawford-Skilton was significant.
Further, I am satisfied the manner in which the claims were expressed was likely to have caused some confusion as to the case HALPD was required to meet. In making this observation, no criticism of Ms Crawford-Skilton is intended. Nevertheless, I consider this a further basis upon which the engagement of legal representation was reasonable in the circumstances.
Ms Crawford-Skilton was non-compliant with orders of the Tribunal:
(a)There were orders for the filing of a book of documents by 2 April 2024. Ms Crawford-Skilton lodged her first book of documents on 18 July 2024. An amended bundle of document was filed on 25 July 2024. Neither book was properly indexed or paginated as ordered.
(b)There were orders requiring Ms Crawford-Skilton to file a SIFC, to a maximum of 3 pages, by 28 June 2024. A 4-page SIFC was eventually lodged on 25 July 2024, after HALPD objected to the 16-page document she had sent them the previous month.
(c)The SIFC was non-compliant with the Tribunal orders because it did not identify the expert and non-expert evidence Ms Crawford-Skilton intended to rely upon.
(d)There were orders requiring both parties by 30 July 2024 to lodge a list of the dates they would be unavailable for a final hearing. Ms Crawford-Skilton did not lodge that list by the due date or at all.
(e)There were orders requiring Ms Crawford-Skilton by 19 August 2024 to lodge an updated and finalised book of documents and written statements of evidence of each person intended to be called as a witness. A book of documents was lodged on 21 August 2024. Another book of documents was lodged on 13 September 2024. No witness statements were lodged.
Doubtless the actions of Ms Crawford-Skilton increased the effort which was required from HALPD to respond to the proceedings. In her responses to the costs application, there is no explanation by Ms Crawford-Skilton as to why her actions were reasonable or necessary.
The only justification appears in a letter lodged on 19 August 2024, in which Ms Crawford-Skilton stated she was unable to lodge the book of documents because her ceilings had collapsed seven weeks earlier and 'smashed' her laptop and her 'limited technology' did not 'seem to be compatible with any of the PDF Merge Apps' but she was 'not asking for any further time to submit my Court bundle as I have already submitted everything I intend to rely on at the hearing'.
This letter does not fully explain the non-compliance with Tribunal orders. Furthermore, this account does not appear consistent with Ms Crawford-Skilton electronically lodging books of documents on 18 and 25 July 2024 and lodging a SIFC on 25 July. Particularly given all these documents appear to have been created with a computer. For these reasons, I do not accept the letter as being an adequate explanation.
I consider the non-compliance by Ms Crawford-Skilton to be inconsistent with the statutory objectives of the Tribunal to achieve the resolution of disputes fairly, acting as speedily as is practicable and minimising costs to parties.[3]
[3] State Administrative Tribunal Act 2004 (WA) s 9.
The submissions lodged by HALPD include a letter dated 17 September 2024. That letter explained why it considered each item of complaint had no prospect of success and made an offer to resolve matters by dismissing the proceedings with no orders as to costs. The letter warned of an intention to rely on this correspondence in an application for costs.
HALPD submitted the rejection of their offer was unreasonable, without specifying the basis on which I should reach that conclusion. The Macquarie Dictionary defines 'unreasonable' as 'not guided by reason or good sense'.[4] I do not see that applies to Ms Crawford‑Skilton. It appears to me to have been a rational decision made by Ms Crawford-Skilton on legal advice to withdraw in a manner which preserved her rights for the future. Presumably there were reasons for Ms Crawford-Skilton to believe her prospects might improve at a different time or in a different forum.
[4] Macquarie Dictionary Online, 2016, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd,
I consider a decision of such magnitude was unlikely to have been made on impulse and was more likely to have been in contemplation days or weeks beforehand.
Ms Crawford-Skilton must have known that by 20 September 2024 HALPD was likely to have devoted substantial resources in preparation for the final hearing. It may be expected the legal advice Ms Crawford‑Skilton said she was acting upon included advice regarding the potential costs consequences of a late withdrawal. In any event, the letter of 17 September 2024 should have made clear the implications. Ms Crawford-Skilton could have avoided those consequences by accepting the settlement offer, but she chose otherwise.
At worst, this might be considered an abuse of process. At the very least, it was contrary to the objectives of the Tribunal. Significant costs were incurred without any resolution of the matters in dispute and it occurred in a manner which was unfair to HALPD.
For the reasons described, I consider it fair and reasonable to make an award of costs in favour of HALPD.
Fixing the amount of costs
There is no applicable prescribed scale of party/party costs. When fixing costs the Tribunal will have regard to the relevant determination applying to practitioner/client costs in the Tribunal.[5] The applicable determination is the Determination, which commenced operation on 1 July 2024.
[5] DR Parry and B De Villers, Guide to Proceedings in the Western Australian State Administrative Tribunal (2012).
HALPD calculated its costs according to the maximum hourly rates contained in the Determination. Unfortunately, the combining of different aspects of legal work into single line items did not illuminate the reasonableness of the costs claimed.
Bearing in mind this is to be a robust rather than detailed assessment, I am satisfied it is most likely the claimed legal costs comprise not only the usual preparation for hearing but the process of becoming familiar with all that had been lodged by the parties. This 'familiarisation' would have occurred earlier had the solicitors for HALPD been instructed earlier and in any event was unavoidable. I am satisfied the work required was increased by reason of the inclusion of allegations which appeared tangential to the items of complaint referred by the Building Commissioner and the lodgement of four separate and lengthy books of documents.
It is relevant to note the Determination deals with practitioner/client costs, which are often greater than costs awarded on a party/party basis. Furthermore, an award of costs by the Tribunal would not usually be intended to be a reimbursement of the actual expenses incurred by a party to proceedings.[6]
[6] Commissioner for Consumer Protection and Del Valle [2024] WASAT 36 [138].
I am satisfied it is appropriate and fair to award to HALPD costs in the sum of $6,000.
Orders
CC 74 of 2024 & CC 261 of 2024
The Tribunal orders:
1.Pursuant to s 49(1) of the Building Services (Complaint Resolution and Administration) Act2011 (WA) the applicant must pay the respondent's costs in the total amount fixed at $6,000 in respect of the costs in CC 74 of 2024 and CC 261 of 2024 within 28 days of the date of this order.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS N Oldfield, MEMBER
4 DECEMBER 2024
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