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GOODRICK and J-CORP PTY LTD

GOODRICK and J-CORP PTY LTD

Case [2023] WASAT 70 2 August 2023

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JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   GOODRICK and J-CORP PTY LTD [2023] WASAT 70
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   2 AUGUST 2023
FILE NO/S:   CC 1573 of 2022
BETWEEN:   RODNEY MARTIN GOODRICK
First Applicant
DOMENICA VECCHIO
Second Applicant
AND
J-CORP PTY LTD
Respondent

Catchwords:

Building dispute - Application to withdraw proceeding - Whether proceeding should be dismissed or withdrawn - Section 46(2) of the State Administrative Tribunal Act 2004 (WA) - Costs - Failure by applicants to give a copy of application to withdraw proceeding to respondent - Respondent unnecessarily incurred costs before becoming aware of application to withdraw proceeding - Whether conduct of applicants has been inappropriate, unreasonable or an abuse of process

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(2), s 10, s 11(1)(d), s 12(a), s 13(1), s 13(2), s 13(4), s 49
Home Building Contracts Act 1991 (WA), s 17, s 20, Sch 1, cl 5
State Administrative Tribunal Act 2004 (WA), s 9(b), s 42(1), s 46, s 46(1), s 46(2), s 46(5), s 49, s 60(2), s 87(2)

Result:

Leave given to withdraw proceeding and proceeding withdrawn
Respondent's application for costs partly successful

Category: B

Representation:

Counsel:

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

Solicitors:

First Applicant	:	Morgan Alteruthemeyer Legal Group
Second Applicant	:	Morgan Alteruthemeyer Legal Group
Respondent	:	Hotchkin Hanly

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

Edmonds and Ventura Home Group Pty Ltd [2023] WASAT 34
Hoskins and Daniel Vinci T/as D'Vinci Contracting [2011] WASAT 188
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Medical Board of Western Australia and Kyi [2009] WASAT 22
Rogers v R (1994) 181 CLR 251
WA Country Builders Pty Ltd and Hathersage Nominees Pty Ltd [2016] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This proceeding concerns a complaint made under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) which has been referred to the Tribunal by the Building Commissioner.
The applicants, Rodney Goodrick and Domenica Vecchio (Applicants) are seeking leave to withdraw the proceeding and that the proceeding be withdrawn, with no order as to costs.
The respondent, J-Corp Pty Ltd (Respondent) does not object to the Tribunal granting leave to the Applicants to withdraw the proceeding but is seeking that the proceeding be dismissed instead of being withdrawn. The Respondent is also seeking costs against the Applicants.
Section 46(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that if the Tribunal gives leave the applicant may withdraw a proceeding and s 46(2) of the SAT Act provides that the Tribunal may make an order dismissing a proceeding if the applicant withdraws the proceeding.

Issues to be determined

The issues which need to be determined are:
First issue:Should I make an order that the proceeding…

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

AGLC: GOODRICK and J-CORP PTY LTD [2023] WASAT 70
Case: [2023] WASAT 70
Decision Date: 2 AUGUST 2023

CaseChat Overview and Summary

The applicants in this matter sought to withdraw their proceeding from the tribunal. The proceeding was a building dispute which the applicants had commenced against the respondent. The dispute was heard in the State Administrative Tribunal of Western Australia. The applicants sought to withdraw the proceeding under section 46(2) of the State Administrative Tribunal Act 2004 (WA). The tribunal was required to determine whether the proceeding should be dismissed or withdrawn. In addition, the tribunal was required to determine whether the conduct of the applicants had been inappropriate, unreasonable or an abuse of process. The tribunal was also required to determine the appropriate costs orders to be made in relation to the application to withdraw the proceeding.
The tribunal found that the proceeding should be withdrawn and not dismissed. The tribunal found that the applicants had not acted appropriately, unreasonably or in abuse of process in making the application to withdraw the proceeding. However, the tribunal found that the applicants had not given a copy of the application to withdraw the proceeding to the respondent. This resulted in the respondent unnecessarily incurring costs before becoming aware of the application to withdraw the proceeding. The tribunal ordered that the proceeding be withdrawn. The tribunal also ordered that the applicants pay the costs of the respondent incurred as a result of the failure to give a copy of the application to withdraw the proceeding to the respondent.

Orders