HOPKINSON and DALGETY BUILDING COMPANY PTY LTD

[2025] WASAT 111

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)

CITATION:   HOPKINSON and DALGETY BUILDING COMPANY PTY LTD [2025] WASAT 111

MEMBER:   MS P LE MIERE, SENIOR MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS

DELIVERED          :   10 OCTOBER 2025

FILE NO/S:   CC 915 of 2024

BETWEEN:   RYAN KEITH HOPKINSON

First Applicant

FELICITY HOPKINSON

Second Applicant

AND

DALGETY BUILDING COMPANY 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Building dispute - Application to withdraw proceeding - Whether proceeding should be dismissed or withdrawn - Section 46(2) of the State Administrative Tribunal Act 2004 (WA) - Costs - Timing of application to withdraw - Respondent incurred costs before becoming aware of application to withdraw proceeding - Costs thrown away - In the interests of justice for applicant to contribute to respondent's costs

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11(1)(d), s 49, s 49(2)
State Administrative Tribunal Act 2004 (WA), s 46, s 46(1), s 46(2), s 47, s 48, s 49, s 87, s 87(1), s 88(2)

Result:

Leave given to withdraw proceeding and proceeding withdrawn and dismissed
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	:	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

Goodrick and J-Corp Pty Ltd [2023] WASAT 70

Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188

McLerie and Koleszko [2014] WASAT 160 (S)

Medical Board of Australia and Costley [2013] WASAT 2

Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 (S)

Pearce & Anor and Germain [2007] WASAT 291 (S)

Spiro [2022] WASAT 29

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

1. A Building Service complaint was lodged with the Building Commissioner by Felicity and Ryan Hopkinson (applicants) on 1 December 2024 and accepted by the Building Commissioner's delegate on 17 December 2024.

2. On 19 December 2024 the complaint was referred to the Tribunal pursuant to s 11(1)(d) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).

3. On 12 May 2025 the applicants requested to '[w]ithdraw our complaint transferred to the State Administrative Tribunal by Building and Energy, without prejudice to our rights and potentially pursuing current complaints and potentially future complaints'.

4. The issues I need to determine are:

   (a)whether leave should be granted to the applicants to withdraw the proceedings and if so, I should proceed to dismiss it; and

   (b)in the event leave is granted to withdraw the proceedings and or dismiss the proceedings what costs order (if any) should be made.

Background

1. The complaint referred to the Tribunal is:

Location

Description of Complaint Item

Boundary retaining wall

1.  Under strength concrete footings.

2.  Post placement not central to footing.

3. Multiple post angles are not a minimum 2-degree.

Additional information will be provided on acceptance of the building complaint.

1. In the investigation report provided to the Tribunal by the Building Commission it was identified that the matter related to a matter previously referred to the Tribunal being the subject of proceeding CC 1201 of 2023 (earlier proceedings).

2. Attached to these reasons is the list of compliant items the subject of the earlier proceedings.  Relevant to these proceedings is complaint items 7 and 8 relating to the retaining wall.  Both complaint items concerned the footings of the retaining wall which are also the subject of these proceedings.

3. Final orders in the earlier proceedings required the respondent to remove the encroachment of the footings of the retaining wall.

4. It is not disputed that the applicants refused the respondent access to their property to enable them to remove the encroachment as ordered.  Nor is it disputed that the respondent required access to the applicants' property to carry out any works on the footings to remove the encroachment.

5. The respondent commenced proceedings in the Magistrates Court of Western Australia to obtain access to the applicants' property.  Those proceedings were subsequently discontinued by the respondent.

6. Following referral of this matter to the Tribunal a directions hearing was listed for hearing on 15 January 2025.  At the request of the applicants the directions hearing was vacated and relisted for 12 February 2025.

7. Relevantly, on 17 April 2025 the matter was listed for an expert conferral to occur on 9 June 2025 and for final hearing on 13 August 2025.

8. On 12 May 2025 the applicants requested to withdraw the proceedings in the terms set out above.

9. By letter dated 14 May 2025 the respondent's noted the application made by the applicants to withdraw the proceedings and submitted the Tribunal should not grant leave to withdraw the proceedings but should dismiss the proceedings.

10. On 21 May 2025 at a directions hearing:

    •I made orders for the parties to file submissions in support of their respective positions and for the respondent to file with the Tribunal and give to the applicants its submissions on costs in the event the Tribunal made orders granting leave to withdraw the proceeding with or without proceeding to dismiss it;

    •I clarified with the applicants if they would wish to continue with their application to withdraw, given I could decide to allow the withdrawal of the application and or proceed to dismiss the application pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act);

    •The applicants confirmed they wished to withdraw their application regardless of whether it resulted in their application being dismissed and they did not wish to proceed to hearing.

Principals that apply when exercising discretion to grant leave to withdraw or to dismiss proceedings

1. The Tribunal has a discretion under s 46(1) of the SAT Act as to whether it gives an applicant leave to withdraw a proceeding.

2. The Tribunal has a discretion under s 46(2) of the SAT Act as to whether to make an order dismissing a proceeding if an applicant withdraws the proceeding.

3. The SAT Act does not prescribe the considerations relevant to the exercise of the power given to the Tribunal to grant leave to withdraw or to dismiss a proceeding under s 46(2) of the SAT Act.

4. This issue was considered by Senior Member Atkin in Goodrick and J-Corp Pty Ltd [2023] WASAT 70. He set out what he considered were the relevant considerations when the Tribunal is exercising its discretion under s 46(2) of the SAT Act to dismiss a proceeding.

   46In my view, the considerations which are relevant to the exercise of power under section 46 (2) of the SAT act to dismiss a proceeding include:

   1)the reasons for the withdrawal of the proceeding;

   2)the stage of the proceedings at which an applicant is seeking to withdraw the proceeding; and

   3)whether there is any prejudice to the respondent if the matter is not dismissed and is simply withdrawn.

5. I agree with Senior Member Aitkin and adopt those considerations.

Respondent's submissions

1. It is not clear if the respondent objects to leave being granted to withdraw the application or whether it consents to the matter being withdrawn provided it is also dismissed.

2. The respondent in its letter of 14 May 2025 and submissions of 26 May 2025 say that the Applicants' purported reservation of rights to bring 'current complaints' and 'future complaints', (in its request to withdraw) amounts to an abuse of the Tribunal processes as it would allow for multiple complaints to be made arising from the same building service.

3. The respondent submits that the Tribunal should dismiss the application so that the same matter cannot be again brought as a further complaint at another time without the leave of the Tribunal.[1]

   …

   a.an order for dismissal is appropriate as it provides a level of protection that the same matter cannot be commenced without leave of a judicial member - which is appropriate given the history - with multiple complaints having now been made by the Applicants arising from the one 'building service';

Applicants' submissions

[1] Respondent's Submissions in Reply dated 14 July 2025.

1. The applicants in their submissions of 30 June 2025 maintain their claim has merit and that the Tribunal should have regard to this fact.  They spend a considerable part of their submissions on setting out reasons why they believe their claim has merit.

2. The applicants have not set out specifically or directly their reason for withdrawal.

3. The applicants maintain they have sought to withdraw at an early stage of the proceedings and specifically before the respondent submitted any documentation for the conferral of experts and before the experts conferred.

4. They submit there is no prejudice to the respondents in that if they bring further proceedings, it is because the respondent's work is faulty and they should be held accountable for it.

5. Further they say they may suffer an injustice if they were not able to bring further proceedings if they have further complaints.  They suggest that the engineer who completed a further inspection for the purposes of the expert conferral has found further unsatisfactory work.

Determination

1. The issue as I said previously is whether I should grant leave to withdraw and if I do continue on to dismiss the proceedings.

2. I am uncertain as to whether the respondent opposes the granting of leave to withdraw if I then proceed to dismiss the proceedings.

Reasons for withdrawal

1. The applicants have not, with any clarity set out their reason(s) for withdrawal.  I have inferred it is because:

   (a)they believe there may be another route they can take to achieve the outcome they seek; and

   (b)they may wish to add additional complaints in relation to the retaining wall the subject of the current complaint and the subject of previous proceedings in the Tribunal.

2. I do not accept the reasons set out above as being supportive of not dismissing the proceedings.  Indeed, in my opinion they would support the contrary argument.

The stage at which the proceedings were withdrawn

1. The Applicants say the proceeding are at an early stage and there has not been any evidence or legal arguments presented to the Tribunal on which a view can be formed on the merits of either party's position in relation to the complaint outcome.[2]

   [2] Applicants' submissions filed 30 June 2025 at page 7.

2. I agree that I am not in a position to form a view on the merits of either parties position as the matter did not proceed to hearing and a determination made on evidence.

3. Had the matter proceeded as programmed to an expert conferral and a joint report in which the experts agreed on a position that is something the Tribunal might have been able to take into consideration.  All of which is speculative and would depend very much on the particular facts.

4. I do not accept the application was withdrawn at an early stage of the proceedings.  The application was filed (by referral from the Building Commission) on 19 December 2024.  At the directions hearing on 9 April 2025 the respondent informed the Tribunal in the applicants' presence that it had obtained an expert report(s) and provided them to the applicants.

5. There was significant discussion about all matters at both directions hearing on 12 February and 9 April, indeed the 9 April directions hearing went for nearly one hour.

6. It was made clear at all times by the applicants that there was no point in referring this matter to a mediation and the matter needed to be programmed through to a hearing.  This is what happened at the 9 April directions hearing.

7. At the time at which the applicants sought to withdraw the proceedings the matter had been listed for an expert conferral.  Regardless of whether the applicants have been informed by the respondent that it had engaged and obtained an expert report(s), by the time it was listed for an expert conferral the applicants must necessarily have known the respondents had engaged an expert(s).  They also knew the respondent had also engaged legal representation.

8. At the 9 April directions hearing the respondent's legal representative made it clear they had made themselves familiar with the issues and indicated the respondent's intention to rely upon legal submissions to have the matter dismissed.  The respondent through its counsel submitted the matter was either the same complaint that had been litigated previously or the applicants were now estopped from bringing this complaint as it should have been raised in the previous proceedings.

9. During the 9 April directions the applicants also referring to having discussed the current proceedings with 'their lawyer'.

10. I find that by the time the applicant sought to withdraw the proceedings the matter was listed for an expert conferral and for hearing.

11. I find that the proceedings were not sought to be withdrawn at an 'early stage'.

12. I find that by the time the respondent became aware of the applicants' intention to withdraw it had expended, not insignificant money and time in arranging legal representation, obtaining expert evidence and their own time in attending the Tribunal.

Prejudice to respondent if proceedings are not dismissed

1. The protection given to the respondent by my proceeding to dismiss the matter is as referred to above is that the applicants would have to seek the leave of the Tribunal to commence any other proceedings concerning the wall and its structure.[3]

   [3] Section 49 of the SAT Act imposes a requirement for leave to commence proceedings of the same kind as those dismissed or struck out for a variety of reasons under s 46, s 47 or s 48 of the SAT Act.

2. In considering whether to grant leave the Tribunal would need to consider whether the proceedings sought to be commenced were of the same kind as those that were dismissed.

3. This would include looking at whether the applicants were the same, whether the respondent was the same and whether the basis for the proceeding, that is, the grounds and the relief sought, was the same as in the proceeding which was dismissed.[4]

   [4] Spiro [2022] WASAT 29 at [19].

4. A matter for further consideration would include the basis on which the proceedings were dismissed.  In essence leave would be granted to commence the proceedings if the Tribunal considered it was in the interests of justice to do so.[5]

   [5] Spiro [2022] WASAT 29 (Spiro) at [20].

5. A factor in the Tribunal's consideration as to whether it was in the interests of justice to grant leave would include the potential impact on the respondent.[6]

   [6] Spiro at [21].

6. Without such protection of the balancing of interests in a leave application the respondent could be subject to the expense of having to again respond to the same or essentially the same application including the expense of obtaining expert evidence.

7. I find the respondent would be subject to not insignificant prejudice if the applicants were free to recommence these proceedings at a later time without further consideration as to the reasons for the withdrawal and the reasons for recommencing such proceedings.

8. I consider it would not be in the interests of justice to allow the applicants to withdraw their application at this stage of the proceedings without proceeding to dismiss the proceedings.

9. The applicants should be granted leave to withdraw as they have stated they do not wish to proceed to hearing and I will dismiss the proceedings for the reasons set out above.

Costs

The applicable principals

1. As I said in Pindan[7] the starting point in any analysis of the circumstances in which the Tribunal will make an order for costs is s 87(1) of the SAT Act, which creates the presumption of a 'no costs jurisdiction'. There is however provision in s 87 and s 88(2) of the SAT Act for the Tribunal to award costs.

   [7] Owners of Island Apartments Strata Plan 52597 and Pindan Pty Ltd [No 2] [2018] WASAT 2 (S) at [73].

2. The Tribunal's jurisdiction and power in respect of costs is at all times subject to the enabling act that is the BSCRA Act.

3. While s 49(2) of the BSCRA Act provides some limitation on the Building Commission making any award of the costs of a representative of a party this does not apply to the Tribunal.

4. Section 49 of the BSCRA Act effectively removes the starting position that there should be no award of costs as provided by s 87 of the SAT Act.[8]  However the provision should not be understood as providing that costs will generally follow the result.

   [8] Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 at [14].

5. Section 49 of the BSCRA Act is neutral in effect and should be applied in the manner which is consistent with and reinforces the objectives and procedures of the Tribunal, and any factors will be relevant which point to the justice of the case requiring an award of costs.[9]

   [9] Pearce & Anor and Germain [2007] WASAT 291 (S).

6. Thus, the effect of s 49 of the BSCRA Act means that the BSCRA Act does not affect the general position as provided in s 87 of the SAT Act.[10]

   [10] Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50.

7. The Tribunal is at all times required to exercise its costs discretion judicially, with regard to the objectives of the Tribunal and in the interests of justice.[11]

Respondent's submissions

[11] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32.

1. The respondent's claim for costs covers both legal fees of $5,904.80 and expert fees of $3,049.20.

2. The respondent in its submissions refers to the factors and circumstances the Tribunal might take into consideration when exercising its discretion to award costs.[12]

   [12] As set out in McLerie and Koleszko [2014] WASAT 160 (S) at [3].

3. The respondent submits it was unreasonable for the applicants to bring further Tribunal proceedings arising from the same building service and that all issues arise from the retaining wall should or could have been dealt with in the earlier proceedings.

4. The respondent's urge the Tribunal to infer the applicants' case is weak and the application to withdraw is due to the applicants not being able to obtain the necessary expert reports to substantiate their case.

The applicants' submissions

1. The applicants submit it was reasonable for them to commence the proceedings (noting the matter was referred by the Building Commissioner) because (among other things):

   (a)their complaint was a different one to that dealt with in the earlier proceedings;

   (b)it was made more complex 'by the Respondent's continued refusal to remediate material building permit non­compliances/unauthorised works and the sustained approach of pursing proposed remedial works which the Applicants two Independent Structural Engineers have documented are structurally inadequate'.

   (c)it was only necessitated by the actions of the respondent building the retaining wall not in accordance with the building permit.

2. The major theme of the applicants' reasons for a costs order not being made is based on their submission that their claim has merit and was withdrawn for other reasons.

Determination

1. I do not accept the respondent's submission that I should infer the applicants case lacked merit.

2. I do not accept I should find the applicants' case had merit.

3. As no evidence has been accepted or heard by the Tribunal, I am not in a position to make any findings as to the merit or lack thereof of the applicants claim.

4. Similarly, I can make no finding as to whether the claim by the applicants is the same as that litigated in the original proceedings.

5. As I said previously the Tribunal is at all times required to exercise its costs discretion judicially, with regard to the objectives of the Tribunal and in the interests of justice.

1. I find that with regard to the objectives of the Tribunal and in the interests of justice the applicants should pay or contribute to the respondent's costs for the following five reasons.

2. Firstly, the respondent has been put to cost of obtaining legal advice and expert advice to enable it to defend and or respond to the applicants claims.

3. Secondly there has been no resolution to the applicants' allegations and it is apparent from the position of the applicants that they may attempt to bring further proceedings in the Tribunal or in another jurisdiction.

4. Thirdly the respondent was denied the opportunity of having a determination as to whether the claim was the same or should have been bought in the earlier proceedings or had any merit.

5. Fourthly the costs incurred by the respondent are unlikely to be able to recouped in any further proceedings as new reports may be required to answer any new allegations.  If there are no further proceedings, then they are utterly thrown away.

6. Fifthly the issues to be addressed by the applicants in pursuing the matter were all raised with the applicants at the first directions hearing and they decided to continue with their complaint.

Quantum

1. In assessing costs, the Tribunal takes a 'robust and broad-brush approach' and bases its determination on what reasonable allowance should be made for the work necessarily done.[13]

   [13] Medical Board of Australia and Costley [2013] WASAT 2 at [66].

2. The costs awarded are compensatory and not punitive in nature.  I am satisfied that the objectives of the Tribunal would be advanced and the justice of the case supports an order for the costs of the expert reports the respondent obtained for the purpose of these proceedings.

3. The respondent's claim for expert fees includes reports obtained for the Magistrates Court proceedings but were also proposed to be used in these proceedings.  As they were obtained prior to the commencement of these proceedings and not for the purpose of these proceedings I will not allow them.

4. I find the amounts claimed for the B Waddle Consulting Engineers report of 28 March 2025 and those of Airey Taylor Consulting report of 19 May 2025 to be reasonable and allow them in full.

5. In assessing what is an appropriate quantum of legal costs, I have had regard to the submissions by the applicants and the respondent.  I am also aware that what is sought by way of costs by the respondent may not be the full costs charged to the client, and has had regard to them on the basis of a party/party costs claim.

6. I am satisfied and find a reasonable sum for legal costs to be paid by the applicants as a contribution to the respondent's legal costs is $3,500.

Orders

The Tribunal orders:

1.Pursuant to s 46(2) of the State Administrative Tribunal Act 2004 (WA) the applicants have leave to withdraw this proceeding and the proceeding is withdrawn and dismissed.

2.The applicants shall pay to the respondent a contribution to its legal and expert costs fixed in the sum of $5,889.

ATTACHMENT A

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

MS P LE MIERE, SENIOR MEMBER

10 OCTOBER 2025