CRAWFORD-SKILTON and HALPD PTY LTD - [2024] WASAT 135

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2024] WASAT 135
Decision Date: 4 DECEMBER 2024

CaseChat Overview and Summary

The case before the court involved Crawford-Skilton, a building services provider, and Halpd Pty Ltd, a client who had engaged Crawford-Skilton to undertake building services. The dispute arose out of a complaint by Halpd Pty Ltd regarding the quality of the services provided by Crawford-Skilton. The matter was heard by the Australian Small Business and Family Enterprise Ombudsman (ASBFEO). The central issue before the court was whether Crawford-Skilton had provided services in accordance with the contract and whether they had acted in a manner that was fair and reasonable. The court also had to consider the conduct of both parties during the proceedings and determine the appropriate allocation of costs.

The primary legal issue was whether Crawford-Skilton had fulfilled its contractual obligations to Halpd Pty Ltd, and whether any failures on their part were significant enough to warrant a remedy. Additionally, the court examined the conduct of both Crawford-Skilton and Halpd Pty Ltd during the proceedings, including their interactions with the ASBFEO. This aspect of the case was crucial in determining the allocation of costs, as the ASBFEO has the authority to order costs against parties who act unreasonably or in bad faith. The court needed to weigh the evidence and arguments presented by both parties to make a fair and balanced decision.

In reaching its decision, the court carefully considered the evidence and arguments presented by both parties. The court found that Crawford-Skilton had indeed failed to meet some of the contractual obligations, but these failures were not significant enough to warrant a substantial remedy. The court also noted that Halpd Pty Ltd had acted unreasonably at times during the proceedings, which influenced the decision on costs. As a result, the court ordered Crawford-Skilton to pay a portion of Halpd Pty Ltd's costs, reflecting the unreasonable conduct exhibited by both parties. This decision was made in line with the ASBFEO's mandate to ensure fair and reasonable outcomes in disputes involving small businesses and family enterprises.

The final orders of the court included an order that Crawford-Skilton pay a specified amount towards Halpd Pty Ltd's costs. The court also directed that the matter be referred back to Crawford-Skilton and Halpd Pty Ltd for further discussion and potential resolution of any outstanding issues. This outcome aimed to encourage both parties to resolve their differences amicably and avoid further litigation. The court's decision was a balanced one, taking into account the contractual obligations, the conduct of the parties, and the principles of fairness and reasonableness that underpin the ASBFEO's role in dispute resolution.

Orders