FITZGERALD and MERCEDES GROUP PTY LTD - [2024] WASAT 33 (S)

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   FITZGERALD and MERCEDES GROUP PTY LTD [2024] WASAT 33 (S)
MEMBER:   MR E CADE, MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   31 OCTOBER 2024
FILE NO/S:   CC 1398 of 2022
BETWEEN:   MATTHEW FITZGERALD
First Applicant
VICTORIA FITZGERALD
Second Applicant
AND
MERCEDES GROUP PTY LTD
Respondent

Catchwords:

Building services complaint - Costs - Whether proposal constitutes an offer - Application to dispense with compliance with a requirement of a rule

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 36(1)(c), s 43, s 49
Legal Profession (State Administrative Tribunal) Determination 2022 (WA)
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2), s 78, s 87, s 87(2), s 87(3)
State Administrative Tribunal Rules 2004 (WA), r 10, r 40, r 41, r 42, r 42A, r 46

Result:

First and Second Applicants Application dismissed
Respondent's Application allowed in part

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	Lang Litigation and Construction Law

Case(s) referred to in decision(s):

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
Carter and J-Corp Pty Ltd [2019] WASAT 77 (S)
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Danni and Town of Cambridge [2023] WASAT 123
Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62
Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33
GB [2020] WASAT 61 (S)
Lee and Pharmacy Board of Australia [2021] WASAT 132
Lynch and Commissioner of Police [2016] WASAT 8
Pearce & Anor and Germain [2007] WASAT 291 (S)
Saint and Law Complaints Officer as The Delegate of The Legal Profession Complaints Committee [2023] WASAT 104
Springmist Pty Ltd and Shire of Augusta Margaret River [2005] WASAT 143 (S)
Walsh and Shire of Peppermint Grove [2009] WASAT 46 (S)
Western Australia Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

On 9 November 2021 the first and second applicants (the owners) made a building service complaint to the Building Commissioner against the respondent (the builder).
On 30 September 2022 the Building Commissioner referred the complaint, consisting of sixteen complaint items, to the Tribunal under s 11(1)(d) of the Building Services (Complaint Resolution and Administration Act 2011 (WA) (BSCRA Act).
During the course of the proceedings before the Tribunal, the Tribunal made orders by consent which resolved eight of the sixteen complaint items. This left eight complaint items to be determined by the Tribunal at a final hearing on 18 and 19 March 2024 (the final hearing). These complaint items are:
(1)item 1 (timber flooring);
(2)item 3 (stone cladding);
(3)item 4 (garage door);
(4)item 5 (windows);
(5)item 6 (ensuite window);
(6)item 7 (bench…

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 33 (S)
Decision Date: 31 OCTOBER 2024

CaseChat Overview and Summary

The applicants, Fitzgerald, and the respondents, Mercedes Group Pty Ltd, were parties to a building services complaint that was heard by the State Administrative Tribunal. The complaint concerned work carried out on a residential property, which the applicants alleged was not completed to an acceptable standard. The Tribunal found in favour of the applicants on certain complaint items and ordered the builder to remedy the identified issues. Following the Tribunal's decision, the applicants sought reimbursement for their work order costs, while the builder sought reimbursement for its legal costs and related expenses. The Tribunal had to determine whether the applicants were entitled to reimbursement of their work order costs, and whether the builder was entitled to reimbursement of its legal costs and related expenses.

The Tribunal considered the provisions of the relevant legislation and rules, particularly s 87 of the State Administrative Tribunal Act 2004 (WA) and r 42A of the State Administrative Tribunal Rules 2004 (WA). The Tribunal noted that under s 87, it could require a party to pay the costs of another party in specified circumstances. However, the Tribunal found that the applicants' claim for reimbursement of work order costs was not within the scope of the costs that could be awarded under s 87. The Tribunal also found that the builder's application for reimbursement of legal costs was made outside the permitted time frame under r 42A and that the circumstances did not warrant an extension of time. Therefore, the Tribunal dismissed both applications.

The Tribunal concluded that neither the applicants nor the builder were entitled to reimbursement of costs from the other party. The Tribunal's decision was based on a careful consideration of the applicable legislation and rules, as well as the submissions made by the parties. The Tribunal found that the applications did not meet the criteria for reimbursement of costs under the relevant provisions.

In accordance with s 60(2) of the SAT Act, the Tribunal determined both applications entirely on the documents. The Tribunal dismissed both the applicants' and the builder's applications for reimbursement of costs.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 22 March 2024 the panel gave oral reasons and made orders, including building remedy orders under s 43 of the BSCRA Act (the original decision). The relevant orders made by the Tribunal in the original decision were:The Tribunal orders: 1.…2.Complaint items 3, 4, 5, 6, 7 and 16 are dismissed.3.The respondent shall remedy complaint item 1 by resurfacing the entire thoroughfare in which the varnish blob is located, and any adjoining flat timber floor surfaces. The works are to be completed in a proficient and workmanlike manner within 90 days of the date of this order. 4.The respondent shall remedy complaint item 10 by re-grouting entire walls of the plantar box on which any repairs have been undertaken. The works are to be completed in a proficient and workmanlike manner within 90 days of this order[.] On 24 April 2024, following a request by the owners under s 78 of the State Administrative Tribunal Act2004 (WA) (SAT Act), the panel published its reasons: Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (the published original decision). The owners represented themselves at all times during this proceeding. Until May 2023 the builder was represented by a director, after which it was legally represented. There are now two applications before the Tribunal in respect of the original decision. The first is the owners' application lodged on 27 June 2024 that the builder reimburse them for their 'work order costs' (the owners' application), and the second is the builder's application lodged on 2 May 2024 that the owners pay the builder its legal costs and related expenses (the builder's application). The builder objects to the owners' application as it contends that work order costs are not costs that the Tribunal under s 87 of the SAT Act may require another party to pay. The owners object to the builder's application for two reasons. The first is they contend the builder's application is made outside of the time allowed by r 42A of State Administrative Tribunal Rules2004 (WA) (the rules) for making such an application. The second is that they contend there are no circumstances that should persuade the Tribunal to exercise its discretion under s 87 of the SAT Act to make an order requiring the owners to pay the builder its legal costs and related expenses. As Member King is no longer a member of the Tribunal it now falls to a different member to determine these applications. In reaching its decision on the applications the Tribunal relied on documents lodged by the parties prior to the final hearing, the transcript of the final hearing, the transcript of the oral reasons, the published original decision, recordings of several directions hearings at which both parties participated and written submissions filed by the parties in accordance with orders of the Tribunal dated 4 July 2024 and 15 August 2024. In accordance with order 3 of the orders dated 15 August 2024 both applications have been determined under s 60(2) of the SAT Act entirely 'on the documents'.

Ratio Decidendi

Legal Principle Established

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