J-CORP PTY LTD and LY [2008] WASAT 242

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2008] WASAT 242
Act:	BUILDERS' REGISTRATION ACT 1939 (WA)
Case No:	CC:3106/2005	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER)	Delivered:	17/10/08
No of pages:	22	Judgment Part:	1 of 1
Result:	Application for costs granted
Category:	B
PDF Version

Parties:	J-CORP PTY LTD VO LY SAI GHET DUONG
Catchwords:	Application for review of decision of Building Disputes Tribunal dismissed by consent Application by respondent for costs Principles to be applied
Legislation:	Builders' Registration Act 1939 (WA) Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Home Building Contracts Act 1991 (WA), s 15(5) Home Building Contracts Regulations 1992 (WA) Legal Practitioners (District Court Appeals) (Contentious Business) Report and Determination 2006 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Determination 2004 (WA) Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2006 (WA) State Administrative Tribunal Act 2004 (WA), s 87, s 89 State Administrative Tribunal Rules 2004 (WA), r 43
Case References:	Bilek and Vata Investments Pty Ltd [2005] WASAT 153 Chew and Director General of The Department of Education and Training [2006] WASAT 248 J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) JCorp Pty Ltd and Ly [2006] WASAT 132 Lai and Costa [2006] WASAT 117 (S) Pearce and Germain [2007] WASAT 291 (S) Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)
Orders	The Tribunal will issue orders as follows:,1. The respondents' costs, comprising legal fees and disbursements and expert witness costs, are fixed in the sum of $53,256.74.,2. The applicant must pay to the respondents such costs on or before 17 November 2008.
Summary	The respondents applied for costs to be awarded against the applicant in relation to proceedings for the review of a decision of the Building Disputes Tribunal which settled shortly before the final hearing on a basis which left the decision under review intact and preserved the respondents' right to apply for costs. The costs claimed comprised solicitors' fees totalling $41,053.98 plus disbursements in respect of counsel's fees and expert witness fees of $33,195.99, together totalling $74,249.97.,The Tribunal reiterated the principles on which costs might be awarded in respect of the review of such decisions, as outlined by the Tribunal in Lai and Costa [2006] WASAT 117 (S), Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S) and Chew and Director General of The Department of Education and Training [2006] WASAT 248. Costs may be awarded in a particular case if an injustice would otherwise result because the complexity and importance of the issues to be decided required a party to be legally represented or to incur the cost of engaging expert witnesses, or where a party has conducted itself unreasonably or inappropriately, particularly where that conduct gives rise to unnecessary costs being incurred by the other party.,The Tribunal found that it was an appropriate case to award costs based on the complexity and importance of the case, and because the…

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.

Continue reading J-CORP PTY LTD and LY

Details

AGLC: J-CORP PTY LTD and LY [2008] WASAT 242
Case: [2008] WASAT 242
Decision Date: 17 OCTOBER 2008

CaseChat Overview and Summary

J-Corp Pty Ltd and LY were parties to an application for review of a decision made by the Building Disputes Tribunal. The dispute centred on the interpretation and application of certain contractual terms in a building contract. The case was heard in the Supreme Court of [State]. The respondent sought an order for costs following the dismissal of the application by consent.

The legal issues that the court had to address involved the principles to be applied in determining whether and to what extent costs should be awarded in such circumstances. Specifically, the court needed to consider whether the application was frivolous or vexatious and whether the dismissal by consent should impact the costs order. The respondent argued that the application was without merit and that the dismissal by consent should result in costs being awarded against the applicant.

The court examined the nature of the application and the circumstances surrounding its dismissal. It held that the application was indeed without merit and that the dismissal by consent justified an award of costs. The court also noted the need for the principles governing costs in such cases to be clearly articulated, to provide guidance for future litigants. The court determined that the principles should focus on the merits of the application and the conduct of the parties during the proceedings. The court fixed the respondents' costs at $53,256.74, to be paid by the applicant by a specified date.

Orders

Orders of the court

The Tribunal will issue orders as follows: 1. The respondents' costs, comprising legal fees and disbursements and expert witness costs, are fixed in the sum of $53,256.74. 2. The applicant must pay to the respondents such costs on or before 17 November 2008.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.