| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : FAMIANO and ANTONELLI INVESTMENTS PTY LTD [2012] WASAT 230 MEMBER : MR T CAREY (MEMBER) HEARD : 8 AND 9 OCTOBER 2012 DELIVERED : 23 NOVEMBER 2012 FILE NO/S : CC 952 of 2012 BETWEEN : SERGIO FAMIANO MARIA FAMIANO
Applicants
AND
ANTONELLI INVESTMENTS PTY LTD
Respondent
Catchwords: Building dispute Cracking Whether due to differential foundation settlement arising from lack of compaction Water ingress Whether due to faulty design or construction Remedial work order specifying methodology Claims for expert fees and legal costs
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Legislation: Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 3, s 5, s 5(1), s 36, s 36(1)(a), s 38, s 38(1), s (38(1)(b)
Building Code of Australia, cl 1.3 Result: Cracking claim successful
Water ingress claim unsuccessful
Costs claims dealt with
Summary of Tribunal's decision: The applicants sought remedial work orders in relation to two complaints made concerning their double storey home constructed by the respondent. The complaints comprised a claim that cracking in the building was the result of differential settlement arising from poor compaction, and a claim that water leaking through to a ceiling was caused by faulty or unsatisfactory design and construction of the roof.
In relation to the cracking complaint, the parties relied upon their respective expert evidence. The results of compaction testing, prior to construction and later as part of the investigation undertaken by one of the parties, were also in evidence.
After considering all the evidence and having regard to the relevant Australian Standard, the Tribunal found the likely cause of the cracking to be as contended by the applicants. It accordingly made a remedial work order which specified particular methodology recommended by the applicants' expert.
In the case of the water ingress complaint, the Tribunal preferred the evidence advanced by the respondent that the asconstructed roof was not, in respect of its stormwater drainage capability, faulty or unsatisfactory. It referred to certain remedial works undertaken and the lack of evidence of any continuing leaking issue as indicative of the applicants' claims being pure speculation. The Tribunal declined to make a building remedy order on the water ingress complaint.
The Tribunal determined competing claims for expert fees and discussed a claim by the respondent for its legal costs.
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Category: B
Representation: Counsel:
Applicants : Selfrepresented
Respondent : Mr P Monaco
Solicitors:
Applicants : N/A
Respondent : GV Lawyers
Case(s) referred to in decision(s):
Nil
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicants, Sergio and Maria Famiano, have brought a claim under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) against the respondent, Antonelli Investments Pty Ltd trading as Novus Homes (Antonelli), in respect of the following complaints concerning the construction by Antonelli of the Famianos' doublestorey home in Tuart Hill: 2 The parties agree that practical completion of the Famianos' home occurred in July 2006. According to Mr Famiano, he first noticed cracking of the front and rear of the house, predominantly along the southern boundary, in early February 2008. He says that he also observed a water stain on the lounge room ceiling, immediately below an upstairs wall in the northeast corner, in the week of 4 February 2008 after a heavy downpour. 3 Despite the parties' attempts since to reach some agreement on both items of complaint, they continue to disagree in relation to both the causes of the problems and whether Antonelli has responsibility for them. 4 Regarding the water ingress claim, in March 2012 (subsequent to the Famianos filing their complaint with the Building Commission and the transfer of the complaint to the Tribunal) Antonelli took certain remedial measures, with the Famianos' agreement. The Famianos contend that the underlying causes have still not been adequately addressed. 5 Regarding the cracking, which the Famianos claim has become worse in terms of both size and number of visible cracks, the parties rely upon the significantly differing opinions of their respective expert witnesses in support of their opposing views on possible liability under s 5 of the Act. (Page 5)
6 The relief sought in both cases is an order that Antonelli remediate both the cause and effect of the alleged building defects and for the order to specify how the remediation is to be effected. Reimbursement of consultant fees is also sought by both parties, whilst a possible claim for legal expenses was alluded to by Antonelli.
Issues 7 Based on the parties' written and oral submissions, the following are the issues we must determine: 1) What is the extent and cause of the cracking? 2) Given the found cause, is Antonelli liable under s 5 and s 38 of the Act, and what is the appropriate relief? 3) What is the extent and cause of the water ingress? 4) Given the found cause, is Antonelli liable under s 5 and s 38 of the Act, and what is the appropriate relief? 5) How are the competing claims for expert witness fees to be determined? 6) What is the position concerning any possible claim for legal costs?
Cracking
What is the extent and cause of the cracking? 8 The parties disagree about both the extent and cause of the cracking. 9 According to the Famianos, supported by their expert witness, consultant engineer Mr Attilio Marra, cracking has occurred at numerous locations throughout the house, the cracks numbering some 58. At least three cracks fall within damage category 2 under the Australian Standard 2870, which we will refer to in greater detail shortly. The cracks have increased in number (the initial cracks observed in 2008 numbering 10) and size over time. They attribute the cause of the cracking to differential settlement across the house arising from a failure to adequately compact the grounding soil along the right hand (southern) boundary of the house. 10 Antonelli submitted, consistent with the evidence of its expert witness, Chartered Structural Engineer Hakan Kara of Home Spec Consultants which prepared the structural design drawings for the (Page 6)
Famianos' house, that the cracks are much more limited in number and size and are not getting appreciably worse, are inconsistent with the differential settlement hypothesis and are to be properly remediated by normal homeowner maintenance. It pointed to evidence which, it argues, supports the view that the site and the strip supporting the foundations of the right hand side wall in particular, was properly compacted prior to construction commencing. 11 In his report dated 23 July 2012, Mr Marra described the cracking as follows: The majority of the cracks examined are vertical. Vertical cracking is recurrent, located internally and externally at the Front Right Hand Side and at the Right Hand Side of the building. Vertical cracks are manifestations of wall splitting due to vertical ground movement when uneven settlements of the foundations subject the walls to shear and flexural loading. Foundation movements can also generate horizontal cracks by breaking the bond between bricks; most of these are observed at the openings and at ceiling cornices level. Diagonal cracks are located around the openings at the corners and are due to the high stresses experienced in these areas. The returning wall supporting a concrete beam located on the Right Hand Side of the garage door shows diagonal cracking of concern. Horizontal and diagonal cracking can be seen as secondary effects due to the differential ground movements. Based on the visible evidence, taking in[to] account [the] type of structure and number of cracks, … the damage classification with reference to walls in accordance with AS 28702011 Table C1 falls in[to] Category 2 3 (slight to moderate). 12 Although there was criticism from Antonelli regarding Mr Marra's reference to inappropriate terminology given the applicable Australian Standard at the time of construction, there was no substantive challenge to the observations of cracking (as opposed to the suggested cause thereof) contained in the above passage. 13 We turn to consider the evidence of a failure to compact the ground in the area of the righthand side wall, which the Famianos contend is the cause of differential settlement leading to the cracking. 14 Mr Marra reports that the design drawings of Home Spec Consultants required all fill material to be compacted to 8 blows per 300, tested using a Standard Perth Sand Penetrometer, and that the compacted area extend 1.8 metres outside the footings. (Page 7)
15 When one considers the photograph of the sand pad after compaction had occurred (Exhibit 5), a strip between the sand pad and the righthand fence has self-evidently not been compacted. We have no doubt that the retaining wall along the boundary would have been dissuasive to the person using the compactor to compact hard up to the retaining wall in order to avoid damage to the wall. This is of significance because most of the right hand wall of the house abuts the retaining wall. 16 The evidence of compaction testing consists of a Compaction Test Certificate (CTS) of Structerre, Antonelli's structural engineer for the purpose of the construction, of a test taken during construction after completion of the sand pad, and a similar certificate of UTS Soiltec Pty Ltd (UTS) , the test having been part of the Famianos' investigation into the cause of the cracking. 17 Structerre's CTS shows penetrometer readings of less than 8 and as low as 6. Although Mr Marra acknowledged that these values were within the required range of compaction, he pointed to the notes on the CTS indicating that the test points were taken at least 1.5 metres inside the southern boundary at the right hand side. The same notes comprehend the possibility of the testing occurring 1.5 metres inside the 'compacted area', which, given the strip of uncompacted sand, would bring the test points even further from the site of the right hand wall of the house. 18 Mr Kara considered that an argument based upon the Structerre test points having been inside the line of the foundations, was flawed by reason of the radiation effect of compaction down and away from the plate in cohesiveness soils. Although we accept the validity of such an effect, we note and adopt Mr Marra's response that the efficacy of this radiant compactive effort in compacting the soil would have been greatly reduced in this case because the soil sloped down towards the fence, and the compactive effect would have been constrained to an area away from the retaining wall. 19 The CTS of UTS shows penetrometer readings of significantly less than 8 very close to the right hand wall. There, readings of 3 and 5 at or about the footing founding level of 700 millimetres below finished ground level, and 2 and 3 as deep as 1,500 millimetres, were recorded. 20 Antonelli contended that the UTS CTS is unreliable, as the results may have been affected by ground disturbance for purposes such as installation of services. Antonelli did not provide evidence of any such disturbance, and Mr Famiano gave evidence of none having occurred in (Page 8)
the vicinity of the righthand boundary. In any event, the low penetrometer readings of UTS at 1,500 millimetres below finished ground level cannot possibly be attributable to excavation to that level subsequent to the house's construction. This is because the inevitable consequence of any such excavation would be the sudden and disastrous collapse of the adjacent building. 21 The two experts gave strikingly different opinions about the type of cracking that will result from differential foundation settlement on one side of a house as compared with another. 22 Mr Kara suggested that the impact of the differential settlement being asserted would be that the structural members (suspended slab, concrete beams and columns) would displace to a point well beyond their design capacity, and would fail. The displacements would cause cracks in excess of 15 millimetres. Maximum displacement and damage would result near the area of the highest settlement and would show itself during or immediately after construction when loads are applied fully for the first time. It would not be possible to open and close doors and windows as they would be stuck. Mr Kara observed that none of these serious consequences has occurred. 23 Mr Marra considered that the vertical cracking he observed in the Famianos' house to be manifestations of wall splitting (shear cracking) due to vertical ground movement when uneven settlement of the foundations subject the walls to shear and flexural loading. He indicated that, with time, more cracks will occur due to the natural consolidation of the founding soils caused by ground vibrations and water percolation. 24 Mr Kara did not inspect areas of the house other than the outside front righthand corner of the garage and the lefthand side rear wall. He simply ignored the balance of the house and the totality of the cracks identified by Mr Marra, preferring to rely upon the lack of the cracking in the locations and of a magnitude that he regarded would be the inevitable result of differential settlement. 25 We prefer the opinion of Mr Marra to that of Mr Kara. We accept that Mr Kara has described the normal pattern of cracking in buildings experiencing movement of foundations occurring gradually over the entire length of the walls. However, we are satisfied, based on all the evidence, that what has occurred with the Famianos' house is significant movement at one end of the walls and very little movement elsewhere. Bearing in mind the double torey construction and composite building materials (Page 9)
(brick, concrete, timber) to which Mr Marra referred, we consider that the cracking as described is more likely to be the result of differential settlement and resultant shearing of the walls than any other cause. 26 The experts also disagreed about the application to the facts of the performance requirements set out in AS 2870 the Australian Standard referenced in the Building Code of Australia 'for the classification of a site and the design and construction of a footing system for a single dwelling house, townhouse or the like'. 27 Clause 1.3 of AS 2870-1996 stated: PERFORMANCE OF FOOTING SYSTEMS 1.3.1 General The footing systems complying with this Standard are intended to achieve acceptable probabilities of serviceability and safety of the building during its design life. Building supported by footing systems designed and constructed in accordance with this Standard on a normal site (see Clause 1.3 .2) which is (a) not subject to abnormal moisture conditions; and (b) maintained such that the original site classification remains valid and abnormal moisture conditions do not develop (see Note 1); are expected to experience usually no damage, a low incidence of damage category 1 and an occasional incidence of damage category 2 (see Note 2). Damage categories are defined in Appendix C. NOTES: 1 Appendix B provides information and guidance on the maintenance of foundations site conditions. 2 Class A sites (as defined in Section 2) are not reactive to moisture and may have a lesser risk of damage. (Tribunal emphasis) 28 Mr Kara said that the lack of any category 3 cracks (between 5 millimetres and 15 millimetres) and the small number of category 2 cracks (between 1 millimetre and 5 millimetres) means that the performance criteria of the standard is met. 29 As we have said, Mr Kara paid no regard to most of the 58 cracks identified by Mr Marra. The words we have emphasised in the (Page 10)
1996 Australian Standard indicate that the number of cracks is a performance criterion in addition to the size (width) of cracks. Mr Marra's opinion relies upon the large number of cracks in the house, and the evidence that some cracks are becoming wider. 30 We consider that the performance requirements of the Australian Standard have not been met, taking into account the whole picture of the cracking occurring in the house. 31 For the above reasons, we do not accept Antonelli's submission that the cracking is insignificant and properly remedied by normal homeowner maintenance. We find that the cracking is significant, and is attributable to differential settlement of the foundations of the house caused by a failure to compact the strip of the sand pad where the southern boundary foundations now lie.
Is Antonelli liable, and if so, what relief is appropriate? 32 A complaint to the Building Commission may be made under s 5(1) of the Act: … about a regulated building service not being carried out in a proper and proficient manner or being faulty or unsatisfactory. 33 There is no question that the building works the subject of both complaints satisfy the 'registered building service' definition found in s 3 of the Act. 34 Section 38(1) of the Act provides that, on a building service complaint referred by the Building Commissioner to the Tribunal, the Tribunal may, if satisfied that the regulated building service the subject of the building service complaint has not been carried out in a proper and proficient manner or is faulty or unsatisfactory, deal with the building service complaint by making a building remedy order. 35 Having regard to our findings and conclusion regarding the cause of the cracking, in particular that the cracking is directly attributable to the failure of the builder to properly compact the southern boundary foundations, we are satisfied that the relevant regulated building service the construction of the home on such an improperly compacted surface is properly to be described as both not having been carried out in a proper and proficient manner and as being faulty and unsatisfactory. We are therefore authorised by s 38(1) of the Act to make a building remedy order. (Page 11)
36 'Building remedy orders' are described in s 36 of the Act. They are of three types; the type pursued by the Famianos is that set out in s 36(1)(a) of the Act, namely: … an order that a person who carried out a regulated building service remedy the building service as specified in the order[.] 37 Given the reference to 'as specified in the order', and given the fundamental dispute between the parties regarding causation of the cracking, we think it entirely appropriate that the building remedy order particularises the methodology of the remediation works. Antonelli was put on notice as to the specific remedial action sought by the Famianos, amongst other places, in the Famiano's 'Statement of Issues and Actions Sought' filed on 10 September 2012, and Antonelli made no submissions in relation to it. This is not surprising, given the remedial measures are entirely consistent with the recommendations of Mr Marra. 38 We are satisfied that the measures advanced - by injection of micro-fine grout in the soil along the southern boundary and remedy to the surface appearance of the walls and coatings once the building has been stabilised - are necessary and appropriate to achieve a satisfactory outcome, and will incorporate them in the remedial work order we make.
Water ingress
What is the extent and cause of the water ingress? 39 According to the Famianos' statement of issues, there has been 'persistent' water leaking to the lounge and dining room ceiling within the immediate vicinity of the second storey north-east and south-east corners. 40 In his affidavit (hearing book commencing at page 115), Mr Famiano states: 41 As for the extent of the staining, Mr Steve Shultz, a building consultant employed by BSP Construction Consultants upon whom the Famianos relied in relation to their claims relating to the roof, told us that the stain in the north-east corner was approximately 50 millimetres in (Page 12)
diameter, and the stain in the southeast corner was approximately 20 millimetres in diameter. 42 The question of causation of this, somewhat limited, water ingress problem was hotly contested. Mr Sam Bellissimo, a senior construction supervisor for Antonelli who was the building supervisor for the Famianos' house, albeit commencing in that capacity at a time after the commencement of the project, attended an inspection of the property in July 2012. He observed, among other things: • evidence of movement and cracking of ridge capping to the roof area above the dining/lounge; • evidence of cracking and movement to sealant cover flashings to the northeast and southeast corners of upper floor walls; • the folded edges of the secret gutters above the southeast and north east corners had been squashed; • a small separation within the folded edge at the intersection of the valley tray and secret gutter above the northeast corner; and • some debris in the secret gutters. 43 Action was taken to remedy all these potential water ingresscausative factors on the occasion of the inspection. The Famianos indicated that, although they had not observed an incident of water ingress since this occurred, they were pursuing their claim against Antonelli because of what they regard as enduring defects arising from the design and construction of the roof, which meant, according to them, that problems with water were likely to occur in the future. 44 The particular cause, or causes, of the ceiling staining ascribed by the Famianos has changed since their preliminary notice of their complaint. At that time, they relied upon a report from Mr Williamson of Take 2 Home Inspections, in which the cause was described thus: It appears that water is flowing down the valley flashings and over the edge of the flashings underneath the roof tiles. 45 The preliminary notice indicated that the appropriate course of remediation was to: (Page 13)
[r]emove roof tiles above lounge and dining rooms and re-configure the rear valley flashing. 46 Mr Shultz's report dated 1 August 2012 manifests part of the transformation of the Famianos' description of the problem, where it states: The valley flashing to [the roof areas above one staining location] butts into the wall of the upstairs northeast room, which is then deflected into the flashing attached to the north wall of the upstairs northeast room. It appears during a heavy down pour of rain, a build-up of water dams up against the east wall flashing at the bottom end of the valley flashing. This water may spill over the north wall flashing and enter the roof space. The ceiling below this area is also being water damaged. To prevent this water ingress, a wider roof flashing with higher up-turned edges should be installed. The gap between the roof tiles and the wall flashing at the base of the valley guttering needs to be made larger to accommodate the high volume of water running down the valley guttering … Note: The design of the roof has not helped this fault[;] the change in direction of water flow at the base of the valley roof gutter is the [underlying cause] of the water ingress. 47 By the time of the hearing, further perceived deficiencies of design or construction of the roof said to impact upon the water drainage properties of the roof, including at least one instance of the construction not being in accordance with the building plans, were added. These were not supported by any expert in the fields of building, engineering or plumbing, Mr Famiano apparently relying upon his own background in town planning to advance them. 48 Mr Antonelli, a director of Antonelli and an experienced registered builder, gave evidence about the construction of the relevant parts of the roof. He arranged for the drafting of a sketch of the basic construction of the roof in accordance with the building plans, which came into evidence as Exhibit 7. He accepted that the as-constructed roof varied from the sketch, in that the midpoint of the northeast valley tray did not intersect with the corner of the walls of bedroom 3, but rather, butts into the wall as described by Mr Schultz. The reason for this variation, according to Mr Antonelli, was that it was necessary in order to avoid interference with the valley hip. 49 On the question of whether the stormwater provision of the roof was or was not faulty or unsatisfactory, Mr Antonelli observed that the surface areas of roof being serviced by the valley trays and secret gutters in question were limited to some 3.5 square metres. Noting that the Australian Standards called for both valley trays and secret gutters to be (Page 14)
150 millimetres wide, he said that the trays are compliant and the secret gutters are 260 millimetres wide. According to Mr Antonelli, the asconstructed valley trays, flashings and secret gutters are adequate for their purpose. In response to a question from the Tribunal with respect to the northeast valley tray, Mr Antonelli said: The valley still gets water to the secret gutter, which does work. 50 As for the cause of the apparent incidents of water leakage resulting in the stained ceilings, Mr Antonelli pointed to some of the factors observed by Mr Bellissimo, particularly the crushed lips of the secret gutters, which had now been fixed. He also referred to the fact that no complaint was made by the Famianos during their first two years of occupation to support the view that the cause was related to maintenance, rather than structural, issues. 51 The evidence we have referred to of Mr Antonelli, which we broadly accept, is supported by a written statement of Mr Mel Maio, a plumbing contractor presented by Antonelli as specialising in roof plumbing. Mr Maio was not made available for crossexamination. Mr Maio conducted an inspection of the roof at the two locations and carried out some of the repair work to the crushed flashing edges. According to Mr Maio's statement, the stains on the ceiling appeared minimal, and were likely to have been experienced in the severe storm in Perth in March 2010. His statement concluded that: [t]he installation of flashings and gutters on this property had been installed correctly. 52 Although the Tribunal is not limited to the same extent as the courts in the evidence to which it will have regard, it must still cast a critical eye over all the evidence in reaching its decisions. We are urged by the Famianos to find that the water ingress experienced by them is attributable to faults with the design and construction of the roof. However, no evidence of faulty design or construction from an expert qualified to give it was led, and Antonelli's expert evidence was to the contrary. With due respect to Mr Smith, his evidence is of a speculative nature and extends into the realms of likely water flow and performance of the drainage system, which are outside the scope of his expertise as building consultant. 53 Further, the (non-structural) causes of any possible water ingress as asserted by Antonelli have been addressed, and there is no evidence that (Page 15)
the roof still leaks. It would have been a simple matter to conduct a test of the water resistance of the roof after the remediation works. 54 Given the state of the evidence to which we have alluded, the contention that the stormwater drainage system is currently faulty or unsatisfactory amounts to pure speculation.
Is Antonelli liable, and if so, what relief is appropriate? 55 In light of our findings and conclusion regarding the water ingress complaint, we are not satisfied that the building works comprising construction of the roof have not been carried out in a proper and proficient manner, nor that they are faulty or unsatisfactory. That being the case, in relation to this complaint, we must, in accordance with s 38(1)(b) of the Act, decline to make a building remedy order.
Costs
Expert fees 56 It is customary for the successful party in matters under the Act to recover reasonable costs associated with garnering its expert advice or opinions and making the experts available for questioning at the final hearing. The caveat which needs to be mentioned in this context is that it is the fees associated with experts whose evidence has substantially contributed to the vindication of the parties' position that will be the subject of a recovery order. 57 Both parties presented, in accordance with the Tribunal's direction, invoices of their respective experts, the recovery of which is sought. In light of the caveat just mentioned, it is only the claims for expert fees of the Famianos associated with their successful claim regarding the cracking that we will entertain. 58 The fees in question are: • UTS Soiltec Pty Ltd compaction test $220; and • Marra & Associates Consulting Engineers inspection, preparation for hearing, preparation of affidavit and signing, attendance at hearing $4,345. 59 We note that Mr Marra's charges, both in terms of hourly rates and times raised, appear entirely reasonable, both based on the experience of the members of the Tribunal of claims in other matters, and also when (Page 16)
Mr Kara's invoice, submitted as part of Antonelli's claim for reimbursement, is considered. 60 We accept the claims in respect of both UTS and Marra & Associates in full for reimbursement by Antonelli.
Legal costs 61 The Famianos make no claim for legal costs, although they state they have received legal advice in relation to the matter. It would be a very unusual case where a party, who was never legally represented as a matter of the Tribunal's record, could recover any expense incurred as a result of obtaining legal advice in relation to the dispute ultimately determined by the Tribunal. 62 This leaves a potential claim by Antonelli, which did engage a lawyer for most, if not the entirety, of the matter since the complaint was filed with the Building Commission, presumably limited to the Famianos' unsuccessful claim concerning water ingress. Our order will facilitate any application by Antonelli for costs. Before any such application is made, two matters need to be borne in mind: the general presumption in the Tribunal that each party bears its own legal costs applies, and that we have regarded, and will continue to regard, the Famianos' claim regarding differential foundation settlement as their primary claim. Even if, for some reason, we were to consider rebutting the general presumption in favour of Antonelli in respect of the unsuccessful complaint item, we would still need to rationalise the position given the success of the application in its most significant element.
Order 63 The Tribunal shall issue an order in the following terms: 1. The respondent shall rectify the work not carried out in a proper and proficient manner and faulty or unsatisfactory work at No 4A Beaver Street, Tuart Hill, as listed below. Action required: (Page 17)
(a) implement micro-fine cement grout injection in the soil along the southern boundary to stabilise settlement by 30 March 2012; (b) repair cracking of brickwork and repaint as required upon stabilisation of the building, and in any event by 30 March 2015; and (c) repair cracking of internal walls and cornice damage and repaint upon stabilisation of the building, and in any event by 30 March 2015. 2. The respondent shall make good any damage occasioned by compliance with order 1 above, on or before upon stabilisation of the building, and in any event by 30 March 2015. 3. The Tribunal declines to make a building remedy order on the applicants' complaint concerning water ingress. 4. The respondent shall, by 21 December 2012, pay the applicants' expert fees of $4,565. 5. The respondent shall have liberty to apply for their costs of the proceeding by filing with the Tribunal and giving to the applicant, on or before 30 November 2012, the following documents: 6. If the respondent makes an application for costs, the applicants may, on or before 7 December 2012, file with the Tribunal and give to the respondent, written submissions opposing the application. 7. Subject to further order, if the respondent makes an application for costs, the Tribunal shall, after the (Page 18)
applicants files their written submissions or 7 December 2012, whichever is the earlier, determine the application on the documents and if costs are awarded shall fix the amount of such costs. |