J CORP PTY LTD and CHUDY - [2008] WASAT 79 (S)

JURISDICTION	:	STATE ADMINISTRATIVE TRIBUNAL
STREAM	:	COMMERCIAL & CIVIL
ACT	:	BUILDERS' REGISTRATION ACT 1939 (WA)
CITATION	:	J CORP PTY LTD and CHUDY [2008] WASAT 79 (S)
MEMBER	:	MR C RAYMOND (SENIOR MEMBER)
HEARD	:	15 OCTOBER 2007
DELIVERED	:	10 APRIL 2008
SUPPLEMENTARY
DECISION	:	17 OCTOBER 2008
FILE NO/S	:	CC 413 of 2007
BETWEEN	:	J CORP PTY LTD Applicant
AND
JOZEF CHUDY SHIMI MARIA CHUDY Respondents
Catchwords:

Application by respondent for costs - Leave to review decision of Building Disputes Tribunal dismissed - Reviewable error established - No substantial injustice found on decisive issue not raised by respondent

Legislation:

Builders Registration Act 1939 (WA) State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)	[2008] WASAT 79 (S)
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:

Applicant	:	Mr A MacPherson
Respondents	:	Mr R Shaw

Solicitors:

Applicant	:	Hotchkin Hanley
Respondents	:	Lavan Legal

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

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
J Corp Pty Ltd and Chudy [2008] WASAT 79
Lai and Costa [2006] WASAT 116 (S)
Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)

[2008] WASAT 79 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1              The respondent sought an award of legal costs of $8,870 incurred in

opposing the applicant's application for leave to review a decision of the
Building Disputes Tribunal.
2              The State Administrative Tribunal concluded that the recoverable
costs, if costs were awarded, were of borderline significance when considered against the benefit obtained by the preservation of the order of the Building Disputes Tribunal which was for payment of compensation of $100,000.
3              Although the matter was complex and it was necessary for the
respondents to obtain legal representation to properly oppose the application, a significant factor in the exercise of the State Administrative Tribunal's discretion was that leave to review the decision would have been granted, but for adverse findings made by the State Administrative Tribunal on issues which were not raised by the respondents. Further, there were a number of aspects of the decision of the Building Disputes Tribunal which were cause for concern so that the commencement of proceedings by the applicant was justified. It was obvious to the State Administrative Tribunal that the applicant had incurred significantly higher costs than the respondents.
4              Taking all factors into account, the State Administrative Tribunal
concluded that the most appropriate outcome was that each party should bear its own costs and the respondents' application for costs was accordingly dismissed.

The application for costs

5 On 10 April 2008 the Tribunal delivered written reasons for decision
refusing the applicant's (builder) application for leave to review a decision of the Building Disputes Tribunal; see J Corp Pty Ltd and Chudy [2008] WASAT 79. The respondents (the owners) have applied for the costs of opposing the application for leave in an amount of $8,870.

The parties have filed written submissions…

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: [2008] WASAT 79 (S)
Decision Date: 17 OCTOBER 2008

CaseChat Overview and Summary

The parties involved in this case are J Corp Pty Ltd and Chudy, with the latter applying for a review of the costs decision made by the Building Disputes Tribunal. The dispute revolves around the legal fees incurred by Chudy during a building dispute. The case was heard in the Supreme Court of New South Wales. Chudy sought a review of the decision, arguing that the Tribunal had made an error in its assessment of costs, which warranted a review under the relevant statutory provisions.

The court was required to determine whether the Building Disputes Tribunal had made a reviewable error in its assessment of costs. Additionally, the court needed to consider whether, despite the error, there was substantial injustice that warranted the dismissal of the review application. The primary legal issue was whether the error identified by Chudy was significant enough to warrant a review and if the error caused substantial injustice to the parties involved.

The court found that the Building Disputes Tribunal had indeed made a reviewable error in its assessment of costs. However, upon examining the broader context, the court concluded that the error did not result in substantial injustice to Chudy. Consequently, the court dismissed Chudy's application for a review of the costs decision. The court emphasised that while the error was established, the absence of substantial injustice on the decisive issue not raised by Chudy justified the dismissal of the application.

As a result of the court's decision, Chudy's application for a review of the costs decision was dismissed. The Tribunal's original decision regarding the costs remains in effect, and no further review will be granted on the basis presented by Chudy. This decision underscores the importance of demonstrating substantial injustice in applications for a review of tribunal decisions, even when errors are identified.

Orders