DELGA NOMINEES PTY LTD and THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723)
[2025] WASAT 7 (S)
•11 SEPTEMBER 2025
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION: DELGA NOMINEES PTY LTD and THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723) [2025] WASAT 7 (S)
MEMBER: MS C CONLEY, MEMBER
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 11 SEPTEMBER 2025
FILE NO/S: CC 105 of 2021
BETWEEN: DELGA NOMINEES PTY LTD
Applicant
AND
THE OWNERS OF 5 GALE STREET BUSSELTON (STRATA SCHEME 25723)
First Respondent
DAVEREL PTY LTD
Second Respondent
Catchwords:
Application for costs by parties in matters arising under Strata Titles Act 1985 (WA) - Whether appropriate to award costs - Second Respondent to pay Applicant a portion of costs claimed - Second Respondent's application for costs dismissed
Legislation:
Legal Profession Act 2008 (WA)
Legal Profession Uniform Law Application Act 2022 (WA), s 133, s 299
State Administrative Tribunal Act 2004 (WA), s 9, s 9(b), s 87, s 87(1), s 87(2), s 87(2)(f), s 87(6)
State Administrative Tribunal Rules 2004 (WA), Pt 2, Div 4A
Strata Titles Act 1985 (WA), s 87(5), s 90, s 90(1), s 90(3), s 90(3)(a), s 90(3)(b)
Result:
Applicant's application for costs allowed in part
Second Respondent's application for costs dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr M Atkinson |
| First Respondent | : | N/A |
| Second Respondent | : | Ms C Meighan |
Solicitors:
| Applicant | : | Atkinson Legal |
| First Respondent | : | N/A |
| Second Respondent | : | Bugden Allen Graham Lawyers |
Case(s) referred to in decision(s):
Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Delga Nominees Pty Ltd and The Owners of 5 Gale Street Busselton (Strata Scheme) 25723 [2025] WASAT 7
Menegola and Health and Disability Services Complaints Office [2018] WASAT 23 (S)
NMG and MG [2020] WASAT 19
Panegyres v Medical Board of Australia [2020] WASCA 58
Pearce and Germian [2007] WASAT 291
Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302
Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S)
Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44 (S)
The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Wolfenden and Mandurah Homes Pty Ltd [2020] WASAT 127 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
In Delga Nominees Pty Ltd and The Owners of 5 Gale Street Busselton (Strata Scheme) 25723 [2025] WASAT 7 (Delga), the Tribunal granted the applicant an exemption under s 90 of the Strata Titles Act 1985 (WA) (ST Act) from the requirement to have the approval of all the other lot owners to the construction of a storage boatshed (Proposed Shed) on the applicant's lot (Application).[1] The second respondent objected to the construction of the Proposed Shed.[2]
[1] The order granting the exemption was made on 26 March 2025.
[2] The Strata Company and the other lot owners in the Strata Scheme declined to participate in the Tribunal proceeding.
The applicant applied, in accordance with the orders made by the Tribunal on 26 March 2025, for orders that the second respondent pay the applicant's costs of $48,802.25 comprised of: a contribution to the applicant's legal costs fixed at $38,000; expert report and witness fees for Mr Gaunt of $9,116.25; and the Tribunal hearing fee of $1,686 (Costs Application). The Costs Application was supported by written submissions,[3] invoice extracts, records of time spent and nine cost agreements/retainers.
[3] Applicant's Costs Submissions filed on 17 April 2025 (Applicant's Costs Submissions).
The second respondent filed submissions in opposition to the Costs Application and sought their costs of responding to the Costs Application in the sum of $3,000 (including GST) supported by a spreadsheet of expenses (Second Respondent's Costs Application).[4]
[4] Second Respondent's Costs Submissions in Response to Applicant's Application for Costs filed on 5 June 2025 (Second Respondent's Costs Submissions).
Issues for determination
The issues to be determined are:
(a)whether the Tribunal should award costs to the Applicant and, if so, the amount of those costs; and
(b)whether the Tribunal should award costs to the Second Respondent for their costs of responding to the Costs Application and, if so, the amount of those costs.
Submissions of the Applicant
The Applicant's Costs Submissions may be summarised as follows:
(a)as to the contribution to the applicant's legal costs:
(i)the applicant incurred a total of $141,221.79 in legal fees;
(ii)the second respondent's actions, including by its then legal representative (original counsel), leading up to and at the Hearing interfered with the attainment of the Tribunal's objectives because of exaggerated allegations, allegations for which there was no evidence, or no substantial evidence (collectively referred to as exaggerated allegations) and the conduct of original counsel;
(iii)the exaggerated allegations include: unfounded allegation about a breach of plot ratio restrictions and open space requirements; failure to provide the material with which Ms Exell had been briefed until cross‑examination; Ms Exell did not attend the strata complex; no evidence provided prior to the Hearing that the construction of the Proposed Shed would reduce the attractiveness of Lot 6 as a rental property and reduce the rental returns; the alternative locations for the Proposed Shed were not viable; the second respondent abandoned its contention that the Proposed Shed would contravene by-law 2(b) of Schedule 2; no evidence that access to the Proposed Shed would contravene access requirements under Australian Standards; no evidence that the second respondent had observed the applicant experience difficulties in manoeuvring the Boat into the Proposed Shed; and the Tribunal found that Ms Veronica Webb (Ms Webb) was inclined to exaggerate the impacts that the construction of the Proposed Shed would have on the second respondent's use and enjoyment of Lot 6; and
(iv)at the 2 days of hearing held in March 2023, original counsel acted in a manner that prolonged the hearing and increased costs.
(b)as to the Hearing Fees:
(i)the applicant paid $1,686 in hearing fees; and
(ii)the second respondent should reimburse the applicant for these costs.
(c)as to Mr Gaunt's fees:
(i)the applicant paid $9,116.12 to Urbis for the services of Mr Gaunt in preparing his report and for attending the hearing as a witness;
(ii)it was necessary to engage Mr Gaunt after the evidence of Ms Exell in examination-in-chief (conducted by original counsel) went beyond her reports and area of expertise; and
(iii)Mr Gaunt was a suitably qualified expert and significantly assisted the Tribunal in resolution the matter.
Submissions of the Second Respondent
The Second Respondent's Costs Submissions may be summarised as follows:
(a)as to the contribution to the applicant's legal costs:
(i)the power to award costs under s 87(2)(f) the State Administrative Tribunal Act 2004 (WA) (SAT Act) does not extend to costs incurred by the applicant's solicitors by reason that the retainer between them and the applicant fixed legal costs which prevented them from recovering fees for time spent from the applicant as these are not the applicant's costs;
(ii)the Tribunal cannot be satisfied that any of the alleged conduct of the second respondent actually increased the legal costs incurred by the applicant under the retainers so as to enliven its power and discretion to award costs;
(iii)it is unreasonable to suggest that the applicant ought to pay one third of the total costs incurred by the applicant when the conduct complained of by the applicant is the conduct of original counsel and he only represented the second respondent at the first two days of the Hearing;
(iv)most of the fees incurred by the applicant were in relation to retainers which were incurred after original counsel ceased being counsel for the second respondent;
(b)as to the hearing fees:
(i)the sum of $1,686 in hearing fees is unreasonable because even if it is accepted that one hearing day was unnecessary, then the fee payable for one day of the first 2 hearing days was $140.50 (including GST);
(c)as to Mr Gaunt's fees:
(i)planning considerations were relevant to the Tribunal's exercise of discretion;
(ii)the evidence of Ms Exell is not what caused those matters to be relevant;
(iii)the applicant relied upon the evidence of Mr Gaunt so that it cannot be said that any conduct of the second respondent unnecessarily led to his evidence being given and the Tribunal appeared to have been assisted by that evidence.
(d)the Tribunal should order that the applicant pay the second respondent's costs in in the sum of $3,000 in relation to responding to the Costs Application.
Findings of fact
I make the following findings of fact based on the evidence during the Hearing and the documentary evidence provided in relation to the Costs Application:
(a)the Hearing was held on 28 and 29 March 2023, 16, 17 and 18 October 2023 and 4 December 2023. There was also a site visit on 23 October 2023;
(b)the Hearing was originally listed for 2 days;
(c)8 witnesses gave evidence over the course of the Hearing, including representatives of the applicant and the respondent and 5 expert witnesses;
(d)original counsel represented the second respondent for the first and second days of the Hearing;
(e)Ms Meighan replaced original counsel for the remaining days of the Hearing; and
(f)the applicant entered into 9 separate agreements for costs with their solicitors in respect of legal advice and representation for various stages of the proceeding in the Tribunal (Costs Agreements) and each of the Costs Agreements provided for an agreed fee for an agreed scope including GST and disbursement, but excluding fees for experts.
General principles relating to costs in the Tribunal
The starting point for the consideration of the question of costs is s 87(1) of the SAT Act, namely that each party bears its own costs.
However, s 87(1) of the SAT Act is subject to any relevant provision of the enabling Act and the discretion of the Tribunal under s 87(2) of the SAT Act to make an order for the payment by a party of all or any of the costs of another party.
The relevant enabling Act in this case is the ST Act. There is nothing in the ST Act which precludes the Tribunal from making an award of costs in relation to a matter arising under the ST Act. Accordingly, the Tribunal may determine the Costs Application and the Second Respondent's Costs Application in accordance with s 87 of the SAT Act.
In Chew and Director General of the Department of Education and Training [2006] WASAT 248 (Chew), a proceeding falling within the Tribunal's review jurisdiction, the Tribunal said at [85]:
… [T]he Tribunal should not generally make an award for costs unless a party has conducted itself in such a way as to unnecessarily prolong the hearing; has acted unreasonably or inappropriately in its conduct of the proceedings, has been capricious; or the proceedings in some other way constitute an abuse of process. The Tribunal might also make an order as to costs where a matter has been brought vexatiously or for improper purpose.
In Pearce and Germian [2007] WASAT 291 at [24], a proceeding falling within the Tribunal's original jurisdiction, the Tribunal accepted that each party should expect to pay their own costs unless there are circumstances of the type identified in Chew or where costs are incurred in defending an obviously unmeritorious claim.
In Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale), the Court of Appeal considered the approach that should be taken to awards of costs by the Tribunal in light of s 87(1) and s 87(2) of the SAT Act. The principles articulated in Questdale were succinctly summarised in Blaszkiewicz and The Owners of 7 Henderson Street Fremantle (Strata Scheme 74918) [2021] WASAT 56 at [61]-[62] as follows:
61…
(a)the presumptive position or starting point under s 87(1) is that the Tribunal is a 'no costs' jurisdiction, and that each party will bear its own costs;
(b)the discretion of the Tribunal to award costs under s 87(2):
(i)is to be exercised 'judicially', in that it should not be exercised arbitrarily, capriciously or to frustrate the legislative intent;
(ii)is directed to the question of whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred (the legal rationale is not to punish the person against whom the order is made);
(iii)is broad, so that the considerations relevant to its exercise are unconfined, except that the Tribunal is bound to take account of the matters specified in s 87(4), and should have regard to subject matter, scope and purpose of the SAT Act;
(c)factors that may be considered in the exercise of the Tribunal's discretion include (non-exhaustively):
(i)the nature of the dispute, and the legislative scheme under which it arises; and
(ii)whether a party has conducted itself in a manner that has impaired the attainment of the Tribunal's objectives under s 9 of the SAT Act (to determine proceedings fairly and in accordance with the substantial merits, with as little formality as possible, and in a way that minimises costs to the parties);
(d)the fact that a party ultimately fails on its contentions does not of itself signify that it has acted inconsistently with the objectives in s 9 of the SAT Act; and
(e)the party seeking costs bears the onus of satisfying the Tribunal in relation to the exercise of its discretion.
62Circumstances in which costs might be awarded include where a party has conducted itself unreasonably or inappropriately, where the weakness of the case is such that it could be described as 'incredible' or 'implausible' or 'obviously unmeritorious', or where an application undermines the integrity of proceedings under the relevant legislative scheme: Pearce & Anor and Germain [2007] WASAT 291(S) at [22]-[24]; Gill & Ors and Wildnight Pty Ltd [No 2] [2008] WASAT 135 at [20].[5]
[5] Blaszkiewicz at [61] - [62].
One of the objectives of the Tribunal is to 'act as speedily and with as little formality as practicable and minimise the costs to parties'.[6] In The Owners of 52 Mill Point Road Strata Plan 62152 and Hanssen Pty Ltd [2021] WASAT 102 (S) (Hanssen), the Tribunal said at [25] ‑ [26]:
25The procedures of the Tribunal are designed to achieve the objectives prescribed by s 9 of the SAT Act. Where an order for costs is made by the Tribunal, the Tribunal's obligation to minimise the costs to parties will be reflected in the costs assessed by the Tribunal as recoverable. That approach reflects an expectation that parties will approach proceedings in a way that minimises costs of the proceeding: J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [38]. Therefore, an order for costs should be approached in a broad and relatively robust fashion: Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No.2] [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) at [49].
26Even though fixing costs involves a relatively broadbrush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature: Rae and Prima Homes Nominees Pty Ltd [2020] WASAT 24 at [69].
[6] Section 9(b) of the SAT Act.
It is also important to reiterate that an award of costs made by the Tribunal is not intended to be a full indemnity or reimbursement for the actual expenses incurred by a party to proceedings in the Tribunal.[7]
[7] Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [No 2] [2008] WASAT 302 at [67]; and Smith and Murray Districts Carriage Driving Club Incorporated [2021] WASAT 44 (S) at [18].
A party seeking costs in the Tribunal must ensure that 'the Tribunal is appropriately informed as to the work done and time taken as it claimed for and the rates which are said to apply to that work'.[8]
[8] Panegyres v Medical Board of Australia [2020] WASCA 58 at [415].
There is no prescribed scale of party/party costs in relation to Tribunal proceedings. However, where the Tribunal makes an order for costs and fixes or assesses the amount of costs, the Tribunal will have regard to the hourly rates set out in the applicable costs determinations made by the Legal Costs Committee.[9]
[9] Ransberg Pty Ltd and City of Bayswater [2016] WASAT 43 (S) at [63].
There are three applicable determinations in relation to this matter. First, the Legal Profession (State Administrative Tribunal) Determination 2020 (WA) (2020 Costs Determination) which came into operation on 1 July 2020. Second, the Legal Profession (State Administrative Tribunal) Determination 2022 (WA) (2022 Costs Determination) which came into operation on 1 July 2022. Third, the Legal Profession (State Administrative Tribunal) Determination 2024 (WA) (2024 Costs Determination) which came into operation on 1 July 2024 (referred to collectively as Costs Determinations). Although the 2020 and the 2022 Costs Determination were made under the now repealed Legal Profession Act 2008 (WA), they are taken to have been made under s 133 of the Legal Profession Uniform Law Application Act 2022 (WA) (LPULA Act).[10] The 2024 Costs Determination was made under s 133 of the LPULA Act.
[10] Legal Profession Uniform Law Application Act 2022 (WA), s 299.
Under the Costs Determinations, the relevant maximum allowable hourly rates (inclusive of GST) are as follows:
Fee earner 2020 Costs Determination 2022 Costs Determination 2024 Costs Determination Senior Practitioner $418 $429 $484 Junior Practitioner $319 $341 $385 Counsel fees (charged as a disbursement to practitioners) $363 $385 $429
Whether the Tribunal should exercise its discretion to make an order for the payment of costs by the Second Respondent and, if so, in what amount
Nature of the dispute and the legislative scheme under which it arises
Under the ST Act, a lot owner has the right to refuse approval to the structural alteration of another lot but only on one or more of the grounds specified in s 87(5) of the ST Act.
If a lot owner seeks an order under s 90(1) of the ST Act exempting a particular structural alteration to the lot from the requirement to have the approval of all lot owners, then the Tribunal is required to consider the matter in s 90(3)(a) of the ST Act and, where applicable, the matters in s 90(3)(b) of the ST Act. A lot owner who has refused to approve the structural alteration may maintain their objection to the structural alteration of a lot before the Tribunal.
As I held in Delgaat [60] - [62], the grounds in s 87(5) of the ST Act are relevant to the Tribunal's assessment under s 90(3)(a) of the ST Act as to whether or not the proposed structural alteration is reasonable, but they are not the only grounds. It is not the task of the Tribunal to decide whether a lot owner has validly refused to give approval to the structural alteration of another owner's lot. This is because the Tribunal has power to make an order under s 90(1) of the ST Act even if there has been a valid refusal to give the necessary approval provided that the Tribunal is satisfied of the matters contain in s 90(3) of the ST Act. Further, when an application for exemption is dealt with by the Tribunal under s 90 of the ST Act, a lot owner is not limited to the grounds of objection set out in s 87(5) of the ST Act.
It is important to note that Parliament has conferred jurisdiction on a forum where the presumptive position is that each party bears its own costs.[11]
Conduct of the second respondent
[11] Questdale at [53].
Prior to the institution of proceedings in the Tribunal, the second respondent's only objections to the Proposed Shed were that the construction of the Proposed Shed would not be in keeping with the rest of the development and that the construction of the Proposed Shed would cause a nuisance to the owner or occupier of another lot.[12] However, at the time the matter went to Hearing in the Tribunal, the second respondent had filed three responses to the Application and the second respondent's objections to the construction of the Proposed Shed had been expanded as summarised in Delga at [110] - [111].
[12] Delga at [29(ee)].
I am not satisfied that the conduct of the second respondent impaired the attainment of the Tribunal's objectives. This is for the following reasons:
First, as to the objection based on plot ratio, it was apparent prior to the hearing that such an objection was not supported by the evidence in that Ms Exell stated in her reports that she thought it unlikely the proposed shed would breach the plot ratio restrictions or open space requirements.[13] The question as to whether the carrying out of the proposed structural alteration would contravene plot ratio restrictions or open space requirement is one of the grounds in s 87(5) of the ST Act which is relevant to the Tribunal's assessment under s 90(3)(a). Further, the applicant did not provide any expert evidence to the Tribunal in respect of the plot ratio restrictions or open space requirements.
[13] Delga at [117].
Second, as to the material with which Ms Exell had been briefed, there is nothing in either the SAT Act or Div 4A of Pt 2 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) which requires an expert to provide their letter or letters of instructions to the Tribunal. The Tribunal's Guide to giving expert evidence states that if an expert is required to provide a signed statement of their evidence, then the expert must, inter alia, specify 'the facts, matters and assumptions on which the opinions in the statement of evidence are based (a letter of instructions may be annexed).'
The applicant could have requested access to the letter or letters of instructions prior to the Hearing. However, the applicant did not do so and when counsel for the applicant called for the letters of instruction provided to Ms Exell by the second respondent, they were promptly provided during the course of the Hearing. It was counsel for the applicant who chose to pursue this issue during the Hearing, but ultimately the issue had no bearing on the outcome.
Third, as to Ms Exell's failure to attend the parcel, I do not accept that the fact that Ms Exell did not attend the parcel before preparing her reports or before giving evidence hampered the assistance she could provide to the Tribunal. Ms Exell's reports contained accurate descriptions of the strata complex and a number of photographs. Her reports and her evidence during the Hearing were of assistance to the Tribunal.
Fourth, as to the impact of the construction of the Proposed Shed on the rental of the second respondent's lot as a holiday rental, neither of the valuers' reports or their joint report addressed the question as to whether or not the construction of the Proposed Shed would reduce the attractiveness of Lot 6 as a rental property and reduce the rental returns. It was the Tribunal which elicited evidence about this issue from Mr Schifferli[14] and his evidence was that the situation had changed over the last few years due to the fact that there was no longer a low season.
[14] ts 427 - ts 428, 17 October 2023.
Fifth, the question as to whether there were other viable options for the location of the Proposed Shed was an issue in dispute between the parties. What the second respondent considered as viable from their perspective was not viable from the applicant's perspective. Whilst ultimately the Tribunal accepted the evidence of Mr Biagioni that the proposed alternative locations were not suitable,[15] it was necessary that these options be explored during the Hearing. Further, the applicant did not provide any expert evidence to the Tribunal in respect of the alternate locations.
[15] Delga at [206].
Sixth, while the second respondent did not, in their closing submissions, press their original contention that the construction of the Proposed Shed would contravene Conduct by-law 2, the question as to whether the carrying out of the proposed structural alteration would contravene a specified by-law or specified by-laws of the strata company is one of the grounds in s 87(5) of the ST Act which is relevant to the Tribunal's assessment under s 90(3)(a) of the ST Act as to whether or not the proposed structural alteration is reasonable.[16]
[16] Delga at [60].
Further, even though the Tribunal was not satisfied that the construction of the Proposed Shed would contravene Conduct by-law 2(b),[17] the Tribunal found that the construction of the Proposed Shed on Lot 5 would result in a number of impacts on Lot 6.[18] It is not unusual for a party not to press a particular contention in closing after assessing all of the evidence given at a hearing.
[17] Delga at [164].
[18] Delga at [359].
Seventh, as to whether the Proposed Shed would contravene access requirements under Australian Standards, it was apparent prior to the hearing that such an objection was not supported by any expert evidence. Further, the applicant did not provide any expert evidence to the Tribunal in respect of compliance with the access requirements under Australian standards.
Eighth, as to whether or not the second respondent had observed Mr Biagioni experience difficulty in manoeuvring the Boat into the Proposed Shed, no such evidence could be given by any person because the Proposed Shed had not been constructed. However, the question as to whether or not the Proposed Shed was fit for purpose was a live issue not only in respect of whether the Boat could be manoeuvred into the Proposed Shed, but also whether the Proposed Boatshed was high enough to fit the Boat (the latter issue only becoming apparent during the Hearing). Mr Biagioni was easily able to address both of these issues during the course of the Hearing and the applicant did not provide any expert evidence to the Tribunal in respect of these issues.
Ninth, as to the evidence of Ms Webb about the impacts on the use and enjoyment of Lot 6, whilst the Tribunal found that Ms Webb was inclined to exaggerate the impacts that the construction of the Proposed Shed would have on the second respondent's use and enjoyment of Lot 6 and some of her beliefs about the construction of the Proposed Shed were incorrect,[19] that does not detract from the fact that the Tribunal found that the construction of the Proposed Shed would result in a number of impacts on Lot 6 as summarised in Delga at [359]. Ms Webb's views were naturally subjective, whereas the task of the Tribunal was to decide, objectively, whether the construction of the Proposed Shed on Lot 5 was reasonable having regard to the merits of the alteration and the interests of all of the owners of the lots in the use and enjoyment of their lots and the common property. It is important to note that I did not find that Ms Webb was untruthful or deceitful.
[19] Delga at [25].
Tenth, very little time was spent on dealing with these issues during the Hearing and given that the applicant had entered into Costs Agreements with their solicitors with essentially a fixed price for various stages of the Proceeding (other than expert fees), it cannot be said that these issues increased costs to the second respondent.
Eleventh, when a costs application is made to the Tribunal against an unsuccessful party, it is not the task of the Tribunal to dissect every single argument made by the unsuccessful party and award costs if a particular argument was ultimately unsuccessful. In most proceedings before the Tribunal each party will have a number of arguments, of variable strength, to support their case. The strength of any particular argument, or the vigour with which that argument is pressed, may change during the course of a hearing once all of the evidence has been given. Similarly, new arguments may emerge once all the evidence has been given or because the Tribunal raises a particular issue which the parties had not previously contemplated. As is noted above, the fact that a party ultimately fails on its contentions does not of itself signify that it has acted inconsistently with the objectives in s 9 of the SAT Act.
The conduct of original counsel
It is important to note at the outset that no complaint is made by the applicant in respect of the conduct of Ms Meighan.
There were some aspects of original counsel's conduct during the first two days of the Hearing which were unusual. However, I am not satisfied that his conduct impaired the attainment of the objectives of the Tribunal by any measurable amount save for one matter which I will discuss below. This is for the following reasons:
First, very few objections were made by the applicant's counsel during the course of the Hearing in respect of original counsel's conduct.
Second, there were 8 witnesses in total, spread across 6 days of Hearing. Five of those witnesses were expert witnesses and none of the experts gave their evidence concurrently. As the only representatives of the parties, it was necessary for both Mr Biagione and Ms Webb to give evidence addressing the significant number of matters in contention and it took some time for each of them to give their evidence. Although Mr Biagioni's evidence took up the first day of the Hearing, Ms Webb gave evidence on 3 different days (noting that two other witnesses were interposed during her evidence). It was also necessary for each of the expert witnesses to give quite detailed evidence in respect of their chosen field of expertise. Again, this took some time.
Third, the applicant's decision to call an expert in town planning after the first two days of the Hearing was a decision which ultimately benefitted the applicant in that Mr Gaunt's evidence was accepted in relation to a number of relevant matters.
Fourth, given that the applicant had entered into Costs Agreements with their solicitors with essentially a fixed price for various stages of the Proceeding, it cannot be said that original counsel's conduct increased costs to the applicant other than in respect of Mr Gaunt.
Fifth, the second respondent changed their counsel after the first two days of the Hearing.
However, I am of the view that original counsel's conduct in leading evidence from Ms Exell outside her area of expertise, namely in the field of town planning, resulted in a situation where incorrect evidence was put before the Tribunal. As a consequence, the applicant was put to further expense in that they obtained an expert town planning report from Mr Gaunt and he gave evidence before the Tribunal when the Hearing resumed. Mr Gaunt's report and his witness fees were not covered by the Costs Agreements.
Whilst Mr Gaunt's evidence went beyond merely correcting the evidence of Ms Exell and addressed a number of other issues relevant to the proceeding, the applicant had originally chosen not to call an expert in the field of town planning or architecture.
In my view it is reasonable to award the applicant costs in respect of Mr Gaunt's expert report and witness fees.
The applicant has provided two invoices from Urbis in respect of the cost of the planning report from Mr Gaunt and his witness fees (Annexure D). Those invoices total $9,116.25 (including GST).
Given that I have not found that the conduct of the second respondent or original counsel otherwise impaired the attainment of the objectives of the Tribunal, I do not consider that it is appropriate to award any amount in respect of the legal costs or the hearing fees claimed.
Accordingly, I have decided that the second respondent should pay the applicant the sum of $9,116.25 (including GST) in costs.
Whether the Tribunal should exercise its discretion to make an order for the payment of costs by the Applicant and, if so, in what amount
The Second Respondent's Application for Costs is refused. This is for the following reasons.
First, the application was made out of time and no extension of time was sought.
Second, although the presumptive position is that each party bears their own costs, a party is entitled to apply for their costs under s 87(2) of the SAT Act and the applicant elected to do so. Similarly, the second respondent chose to oppose the Costs Application.
Third, the applicant has been partly successful so their Costs Application was not completely unmeritorious.
Conclusion
For the reasons outlined above, I have decided that the second respondent should pay a portion of the applicant's costs, fixed in the sum of $9,116.25 (including GST).
For the reasons outlined above, I have decided that the applicant should not pay the second respondent's costs of responding to the Costs Application.
Orders
The Tribunal orders:
1.Pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA), the Second Respondent shall pay the Applicant's costs fixed at $9,116.25 (including GST).
2.The Applicant's application for costs is otherwise dismissed.
3.The Second Respondent's application for costs is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MS C Conley, MEMBER
11 SEPTEMBER 2025
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