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…
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- Case
- [2024] WASAT 33 (S)
- Decision Date
CaseChat Overview and Summary
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
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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
Ratio Decidendi
Legal Principle Established
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