HARVEY and NELSON - [2011] WASAT 185

HARVEY and NELSON [2011] WASAT 185

Last Update: 30/11/2011

HARVEY and NELSON [2011] WASAT 185
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2011] WASAT 185
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:148/2011	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR T CAREY (MEMBER)	Delivered:	18/11/2011
No of Pages:	9	Judgment Part:	1 of 1
Result:	Application for costs dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ERIC AND SHELLEY HARVEY ANDREW AND MARIA NELSON
Catchwords:	Building disputes Costs Application for costs upon dismissal of application consequential upon refusal of extension of time Nature of extension of time and stay applications considered Decision based on matter not raised by parties
Legislation:	State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)
Case References:	J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) Lai & Anor and Costa [2006] WASAT 117 Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 Olympic Holdings Pty Ltd and Begley [2009] WASAT 30 Pearce & Anor and Germain [2007] WASAT 291 (S)
Orders:	On the application heard by Member Tim Carey, it is on 18 November 2011 ordered that: 1. The second respondent's application for costs is dismissed.
Summary:	The respondents successfully opposed the applicants' application for an extension of time allowing them to bring an application for review of a decision of the Building Disputes Tribunal. The principal application was therefore dismissed. The second respondent sought her costs of the proceeding in a particular amount. The Tribunal considered the principles applying to when costs orders might be appropriate. It determined against the making of any costs orders in the second respondent's favour, having regard to the preliminary nature of the extension of time application (and also a stay application, determined earlier) and the fact that the basis of the decision to refuse an extension of time had not been agitated by the parties themselves.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : BUILDERS' REGISTRATION ACT 1939 (WA) CITATION : HARVEY and NELSON [2011] WASAT 185 MEMBER : MR T CAREY (MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 18 NOVEMBER 2011 FILE NO/S : CC 148 of 2011 BETWEEN : ERIC AND SHELLEY HARVEY

Applicants

AND

ANDREW AND MARIA NELSON

Respondents

Catchwords:

Building disputes Costs Application for costs upon dismissal of application consequential upon refusal of extension of time Nature of extension of time and stay applications considered Decision based on matter not raised by parties

Legislation:

State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Application for costs dismissed

(Page 2)

Category: B

Representation:

Counsel:

Applicants : Mr G MacLaren

Respondents : Mr W Vogt

Solicitors:

Applicants : Doyles Contruction Lawyers

Respondents : Vogt Graham Lawyers

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

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Lai & Anor and Costa [2006] WASAT 117
Marvelle Investments Pty…

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: HARVEY and NELSON [2011] WASAT 185
Case: [2011] WASAT 185
Decision Date: 18 NOVEMBER 2011

CaseChat Overview and Summary

In the case of Harvey and Nelson, the dispute revolved around the costs incurred in a building-related matter. The application for costs was made in the context of the dismissal of an application that followed the refusal of an extension of time. The court was tasked with determining the nature of the extension of time and stay applications, and whether they should be considered in light of the decision made on a matter that was not raised by the parties. The application for costs was dismissed.

The legal issues before the court involved the interpretation of the procedural rules concerning applications for extensions of time and stays. The court had to decide whether the extension of time and stay applications could be considered in the context of the costs application, given that the decision was based on a matter not specifically raised by the parties. The court also needed to determine whether the dismissal of the costs application warranted an award of costs to either party.

The court reasoned that the decision regarding the extension of time and stay applications was not based on a matter that was raised by the parties, and thus, it could not be considered in the context of the costs application. The court held that the dismissal of the costs application did not automatically warrant an award of costs to either party, as the application for costs was dismissed outright. The court concluded that the matter did not satisfy the criteria for an award of costs, and accordingly, the application for costs was dismissed.

Orders

Orders of the court

Application for costs dismissed

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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