JJ CORPORATE PTY LTD and CITY OF STIRLING - [2021] WASAT 100

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STATE ADMINISTRATIVE TRIBUNAL ACT 2004 (WA)
CITATION:   JJ CORPORATE PTY LTD and CITY OF STIRLING [2021] WASAT 100
MEMBER:   DR S WILLEY, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   3 AUGUST 2021
FILE NO/S:   DR 69 of 2020
BETWEEN:   JJ CORPORATE PTY LTD
Applicant
AND
CITY OF STIRLING
Respondent

Catchwords:

Practice and procedure - Town planning - Costs - Heritage conservation - Notice - Freezing Order

Legislation:

Building Act 2011 (WA), s 110
City of Stirling Local Planning Scheme No 3, cl 7.3
Criminal Property Confiscation Act 2000 (WA), s 91
Planning and Development (Local Planning Schemes) Regulations 2015 (WA), Sch 2, cl 13
Planning and Development Act 2005 (WA)
State Administrative Tribunal Act 2004 (WA), s 37(1), s 46, s 87

Result:

Applications for costs dismissed

Category: B

Representation:

Counsel:

Applicant	:	J Winton
Respondent	:	P Gillet

Solicitors:

Applicant	:	Glen Mcleod Legal
Respondent	:	McLeods

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

Aydogan and Town of Cambridge [2007] WASAT 19; (2007) 48 SR (WA) 239
Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246
Humphrys and City of Stirling [2011] WASAT 105
Madame Ma's Proprietary Limited and City of Perth [2019] WASAT 131 (S)
Moore and City of Wanneroo [2017] WASAT 145 (S)
Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622
RK [2020] WASAT 53 (S)
Schloffer and City of Bayswater [2020] WASAT 122 (S)
Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207
Tran and Town of Vincent [2009] WASAT 123 (S); (2009) 65 SR (WA) 260
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81

REASONS FOR DECISION OF THE TRIBUNAL:

This is an application (Application) by the City of Stirling (City or Respondent) for costs pursuant to s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
The Application arises from an application to review a heritage conservation notice (Notice) by JJ Corporate Pty Ltd (Applicant) that was issued by the Respondent in relation to 34 Second Avenue, Mount Lawley (Property).
The Respondent's case was that the dwelling on the Property was in such a state that it may need to be demolished because of what it says is neglect. The Respondent considered that the dwelling on the Property has heritage value which justified the Notice being issued.
The Property was subject to a Freezing Order made by the Supreme Court (Le Miere J) on 27 September 2018 made pursuant to the provisions of the Criminal Property Confiscation Act 2000 (WA) (CPCAct). One of the issues that emerged between the parties was whether the Applicant had, in effect, control of the Property (such that it could comply with the Notice) having regard to the Freezing Order.
The gravamen of the Respondent's case for costs is that, it submits, seven days before the final hearing in the Tribunal, the Applicant 'lodged' Supreme Court proceedings to, in effect, transfer the control of the building on the Property away from the Applicant.
As a consequence of that 'application', the orders made by the Supreme Court (on 18 November 2020) had the effect of rendering the Tribunal proceedings inutile. It is against that background that the Respondent makes this costs application.
For the reasons that follow, I am not satisfied that the factual background on which the Respondent relies is accurate. In such circumstances, I consider it would be unsafe and inappropriate to make a costs order. With respect to Applicant's request for its costs in dealing with the costs application, for the reasons I explain below, I decline to award any costs.

Background

The Property is within a 'heritage area' under cl 7.3 of the City of Stirling Local Planning Scheme No 3 (LPS 3).
In around July 2017, the City received a complaint that the building on the Property had been damaged by fire and was threatened by demolition by neglect.
On 21 July 2017, Mr Nam Nguyen (on behalf of the Applicant) advised the City he had contacted the insurance company to repair the building on the Property.
City officers inspected the Property on 3 August 2017 which revealed that the dwelling on the Property had been damaged by fire and that a portion of the ceiling had collapsed. That is, while the dwelling appeared intact when viewed from Second Avenue, part of the ceiling had collapsed.
On 11 August 2017, the City advised the Applicant that immediate action was required to restrict access to the Property and to ensure the building on the Property did not deteriorate further.
On 26 August 2017, Mr Nguyen advised the City that the matter was being dealt with by the insurance company.
City officers again inspected the Property in August 2017, November 2017 and June 2018. Those inspections revealed that while temporary fencing had been erected at the front of the Property, no action had been taken to repair the dwelling on the Property.
On 31 May 2019, the sole director of the Applicant, Ms Linda Nguyen, advised the City that the insurance company was still processing the Applicant's claim in relation to the damage to the dwelling.
On 4 June 2019, the City wrote to the Applicant advising that the Applicant was required to prevent the dwelling being demolished through neglect.
On 9 July 2019, the City wrote to the Applicant advising of its intent to issue a Notice under LPS 3 and a Building Order pursuant to the Building Act 2011 (WA) (Building Act).
City officers inspected the dwelling on 11 July 2019. The inspection revealed no change in the state of the dwelling.
On 13 November 2019, City officers inspected the Property which revealed that the main roof of the dwelling was starting to collapse.
On 26 November 2019, Mr Nguyen advised the City that the Applicant was unable to comply with a Notice by reason of the Freezing Order.
Inspection of the Property by the City on 22 January 2020 revealed further deterioration such that the damage was now visible from Second Avenue.
On 22 January 2020, the City gave the Applicant a Building Order, pursuant to s 110 of the Building Act, requiring the Applicant to engage a structural engineer to identify the remedial works necessary to repair the dwelling and carry out any remedial works within 100 days.
The Applicant has not complied with the Building Order.
On 12 March 2020, the City issued the Notice to the Applicant.
On 21 April 2020, the City received a letter from the Applicant's solicitor advising inter alia that the Applicant could not comply with the Notice by reason of the Freezing Order.
On 9 July 2020, the City received specialist heritage advice that the dwelling on the Property is an intact example of a Federation Bungalow with some Federation Queen Anne Features which make a positive contribution to the streetscape of Second Avenue.
On 14 April 2020, the Applicant sought review of the Notice.

Conduct of the review proceedings

The Tribunal's mediation processes did not produce a settlement.
On 3 July 2020, the matter was programmed for a final hearing. At that time, the only issue for determination was whether the dwelling the subject of the Notice had sufficient heritage value to warrant the giving of a notice specifying measures required to be taken to prevent the dwelling being threatened with demolition by neglect.
The respective statements of issues, facts and contentions (SIFCs) filed by the parties, dated 31 July and 14 August 2020 respectively, confirmed the sole issue for determination was whether the dwelling had sufficient heritage value to warrant its retention.
In preparing for the final hearing, the City filed two witness statements. One from an expert heritage consultant; one from a senior planning officer at the City.
On 18 September 2020, the Applicant applied for, and was granted, leave to amend its SIFC. The Applicant's amended SIFC was filed on 25 September 2020 and included an additional contention that the Applicant was unable to comply with the Notice due to the terms of the Freezing Order and the provisions of the CPC Act.
The Respondent filed its amended SIFC on 2 October 2020 in which it contended that the Applicant had the control and management of the Property, which included the power to maintain and repair the dwelling and comply with the Notice.
On 5 October 2020, the Applicant's solicitors asked the Director of the Office of Public Prosecutions (ODPP) for her position on whether it could comply with the Notice without breaching the CPC Act: see Attachment DPG 1 to the Affidavit of David Peter Gillett sworn 2 December 2020.
On 13 October 2020, the ODPP advised the Applicant that it considered the Applicant could comply with the Notice without breaching the CPC Act: see Attachment DPG 2.
On 15 October 2020, the Respondent's solicitor asked the Applicant's solicitor whether, in light of the ODPP's position, the Applicant maintained its position that it was unable to comply with the Freezing Order without breaching the CPC Act: see Attachment DPG 3.
As a result of the Applicant's contention that it was prevented from complying with the Notice due to the terms of the Freezing Order and the provisions of the CPC Act contained in its amended SIFC, on 16 October 2020 the ODPP advised the Tribunal that it intended to approach the Attorney General regarding intervening in the proceedings: see Attachment DPG 5.
On 28 October 2020, the State Solicitor's Office advised the Tribunal that it had been instructed by the Attorney General to intervene in the proceedings pursuant to s 37(1) of the SAT Act. The Attorney General sought to make submissions on the correct interpretation of the CPC Act insofar as those provisions related to the Applicant's ability to comply with the Notice: see Attachment DPG 6.
On 3 November 2020, having regard to the Applicant's SIFC and the foreshadowed intervention by the Attorney General, the final hearing in the Tribunal on 5 and 17 November 2020 was vacated and was relisted for hearing on 26 and 27 November 2020.
On 12 November 2020, the State Solicitor's Office filed what the Respondent describes as 'compelling' submissions in which it submitted the Freezing Order did not prevent the Applicant from complying with the Notice on the basis that it had been appointed to control and manage the property under s 91 of the CPC Act.
In the interim, on 29 October 2020 the Applicant had applied to the Supreme Court for orders (on an expedited basis) to set aside the order appointing the Applicant to control and manage the Property and to instead appoint the Public Trustee: see Attachment DPG 7.
On 18 November 2020, the Applicant successfully obtained Supreme Court (Curthoys J) orders setting aside the order appointing the Applicant to control and manage the Property. Westpac were appointed to control and manage the Property: see Attachment DPG 9.
Because of the order appointing the Applicant to control and manage the Property being amended by the Supreme Court, the Respondent agreed to withdraw the Notice once the Tribunal proceedings were withdrawn.
On 20 November 2020, the parties consented to orders that the Application be withdrawn, and the hearing vacated.
The City now seeks its costs of the Tribunal proceeding.

Legal principles in costs applications in the Tribunal

The effect of s 87(1) of the SAT Act is that each party bear its own costs unless the Tribunal orders otherwise.
As the Tribunal recently observed, having regard to s 87(1) of the SAT Act, '[t]here is no role for the presumptive starting position, which applies in curial litigation, that a successful party is prima facie entitled to his or her costs': RK [2020] WASAT 53 (S) at [22]; Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81 at [50] (Murphy JA, Martin CJ and Corboy J agreeing) (Questdale Holdings).
The usual approach in proceedings that arise under the Planning and Development Act 2005 (WA) reflects the position set out in s 87(1) of the SAT Act: Citygate Properties Pty Ltd and City of Bunbury [2005] WASAT 53; (2005) 38 SR (WA) 246 at [28] (Citigate); Questdale Holdings at [51] (Murphy JA, Martin CJ and Corboy J agreeing).
However, pursuant to s 87(2) of the SAT Act, the Tribunal may exercise its discretion and make an order for the payment by a party of all or any of the costs of another party. In Questdale Holdings, the Court of Appeal explained (at [51]) that:
Section 87(2) is to be construed in the context that the legal rationale for an order for costs is not to punish the person against whom the order is made, but to compensate or reimburse the person in whose favour it is made. That rationale is evident in s 87(3) of the SAT Act. Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour. (footnotes omitted)
The power to make a costs order includes the power under s 87(3) of the SAT Act to make an order for the payment of an amount to compensate a party for any expenses resulting from the proceedings.
The effect of s 87(3) of the SAT Act is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal: Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S); (2005) 41 SR (WA) 207 at [64]; Madame Ma's Proprietary Limited and City of Perth [2019] WASAT 131 (S) at [16] (Madame Ma's).
Costs orders are generally only made in review proceedings where a party has acted unreasonably. That includes where a party has failed to meet the expectations expressed in s 87(4) of the SAT Act: Tran and Town of Vincent [2009] WASAT 123 (S); (2009) 65 SR (WA) 260 at [35]; Humphrys and City of Stirling [2011] WASAT 105 at [27].

Respondent's submissions

The Respondent submits that the Applicant acted unreasonably in 'commencing' the urgent proceedings in the Supreme Court only seven days before the matter was listed for final hearing in the Tribunal. In commencing the Supreme Court proceedings, the Applicant knew, or ought to have known, that if its application was successful, that outcome would have a significant bearing on the Tribunal proceedings.
The Respondent submits further that the only reason for the urgency of the Supreme Court proceedings was to ensure the order appointing the Applicant to control and manage the Property was set aside prior to the hearing in the Tribunal, thereby negating the submissions of the Attorney General and the Respondent's contentions.
The Respondent also submits that if the Applicant had applied to the Supreme Court to vary the Freezing Order prior to the commencement of the Tribunal proceedings, or prior to the matter being programmed for hearing on 3 July 2020, the Respondent would not have incurred the costs of preparing for a hearing in which the sole issue was, until 25 September 2020, whether the building on the Property had sufficient heritage value to justify the giving of the Notice.
That is, the Respondent says that in making the urgent Supreme Court application, the Applicant's conduct between 3 July 2020 and 20 November 2020 was, in all of the circumstances, unreasonable so as to attract a costs order for the purposes of the SAT Act. The Respondent's costs in this regard are set out at Attachment DPG 10.
Ultimately, the Respondent submits the Applicant acted unreasonably by waiting until seven days prior to the Tribunal hearing to commence proceedings in the Supreme Court to set aside the order appointing it to control and manage the Property.
The respondent also submits the Applicant's conduct has disrupted the Tribunal's ability to satisfy its statutory objectives of ensuring the proceedings were determined fairly and in accordance with the substantial merits of the case and in a way which minimised the parties' costs.
This is because, the Respondent submits, by commencing proceedings in the Supreme Court, the Applicant effectively 'shortcircuited' the Tribunal proceedings. As a result, the Tribunal proceedings were not determined fairly and in accordance with the substantial merits of the case. That is, the Tribunal did not determine whether the building on the Property had sufficient heritage value to justify the giving of the Notice or whether the Applicant was unable to comply with the Notice by reason of the Freezing Order.
The Respondent also submits that the Applicant's conduct did not minimise the Respondent's costs. Rather, to the contrary, the Applicant's conduct resulted in the Respondent incurring substantial legal costs in relation to the preparation of the Statements and the s 24 Bundle. Those costs were, in effect, thrown away as the issues raised in those documents were never determined by the Tribunal.
Furthermore, the Respondent incurred substantial consultancy costs as a result of engaging a heritage expert to prepare a report and witness statement for a matter in which the sole issue was, until 25 September 2020, whether the building on the Property had sufficient heritage value to justify the giving of the Notice.
As a direct result of the Applicant's conduct, those costs were also thrown away as that issue was never determined by the Tribunal.
The Respondent submits that, having regard to the above, the Applicant should be ordered to pay the Respondent's costs for the proceedings for the period 3 July 2020 to 20 November 2020.

Applicant's submissions

The Applicant submits that, in the circumstances of this case, it is not fair and reasonable that the Applicant be ordered to pay the Respondent's costs in the proceedings. In addition, the Applicant also submits that the Respondent should pay its costs in relation to the application for costs.
The Applicant notes that the Tribunal has power to order costs pursuant to s 87(2) of the SAT Act against an applicant who is granted leave to withdraw its proceedings pursuant to s 46 of the SAT Act: Questdale Holdings at [64].
The Applicant submits that s 46 of the SAT Act evinces no presumption that a party seeking leave to withdraw should pay the other party's costs. Rather the presumptive position under s 87(1) applies unless the other party can establish that the discretion to award costs under s 87(2) should be exercised in its favour. There is no onus on the withdrawing party to show why it should not pay the other party's costs: Questdale Holdings at [65].
The Applicant submits that the presumption that parties bear their own costs in Tribunal proceedings applies in this Application.
That presumption, the Applicant submits, forms part of, and promotes access to, the system of public administration of the State that ensures citizens and other entities may seek administrative justice in relation to decisions that affect their personal, proprietary and financial interests: Shark Bay Tuna Farms Pty Ltd and Executive Director, Department of Fisheries [2005] WASAT 206 at [36] (Barker J); Moore and City of Wanneroo [2017] WASAT 145 (S) at [13]. In that context, the touchstone of the Tribunal's discretion to order costs is whether it is satisfied that it is fair and reasonable in all the circumstances of the case to do so: Questdale Holdings at [49].
The Applicant further submits that the factors which the Tribunal will be bound to take into account and, likewise, precluded from taking into account are determined by implication from the subject matter, scope and purpose of the SAT Act properly construed: QuestdaleHoldings at [48].

In the context of the Respondent's application for costs, the Applicant submits that it is relevant to consider whether and to what extent the Respondent can establish that the Applicant's conduct in connexion with the proceedings has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible, and in a way which minimises the costs to the parties: Questdale Holdings at [54].
The Applicant considers that the Respondent's arguments on the question of costs is put, in effect, on two bases. The first, being the Applicant's application to the Supreme Court to vary the Freezing Order. The second being the conduct of the Applicant in raising the effect of the Freezing Order as an issue for determination in the Tribunal proceedings.
The Applicant disputes the Respondent's contention that it:
acted unreasonably by commencing urgent proceedings in the Supreme Court only 7 days before this matter was listed for hearing in the Tribunal in circumstances where it knew or must have known that, if successful, the Supreme Court proceedings would have a significant bearing upon the outcome of the Tribunal proceedings.
The Applicant submits that the Respondent's contention requires correction in two material respects before it can be fairly dealt with.
First, the Applicant did not 'commence [Supreme Court] proceedings'. Instead, the Applicant applied, by chamber summons filed 29 October 2020, to vary an interlocutory order made by the Supreme Court, which had been on foot since 2018 (that is, before the issuing of either the Building Order or the Notice).
Accordingly, the Applicant did not commence proceedings, but instead took an interlocutory step in what were by then long-standing proceedings.
Second, the application to vary the Freezing Order was not made 'only 7 days before the matter was listed for hearing in the Tribunal'.
By email on 28 October 2020, the Tribunal notified the parties to the Tribunal proceedings that the hearing of the matter had been vacated due to the intervention of the Attorney General.
In that correspondence, the Tribunal did not immediately re-list the matter, but directed the parties to confer about possible hearing dates for the final hearing of the Tribunal proceedings.
The chamber summons was filed on 29 October 2020.
Accordingly, the application was not made seven days before the hearing of the Tribunal proceedings, but at a time when the further listing of the Tribunal proceedings was yet to be determined. That further listing did not occur until a directions hearing was held on 3 November 2020.
In short, the Applicant did not commence urgent proceedings seven days prior to the hearing of the Tribunal proceedings. Rather, it made an interlocutory application in longstanding proceedings at a time when the Tribunal proceedings were not listed for a final hearing and there was no certainty as to when the next hearing dates would be.
The Applicant queries whether its conduct in the Supreme Court proceedings is a relevant consideration in assessing the Respondent's costs application for the purposes of the Tribunal's proceedings.
That is, the Applicant submits that the Respondent has not articulated how the conduct of the Applicant outside of the Tribunal proceedings is a relevant consideration in determining whether the Respondent should be awarded its costs in the Tribunal proceedings. That is, the Respondent has not identified how the Applicant's conduct in the Supreme Court proceedings is a consideration that falls within the subject matter, scope and purpose of the SAT Act.
The Applicant submits that, as the party seeking to persuade the Tribunal to exercise its discretion to award costs, it was incumbent upon the Respondent to do so.
Nonetheless, the Applicant submits, it is difficult to see why the making of an application in the Supreme Court proceedings (to which the Respondent is not a party) should bear on the question of whether the Respondent should be awarded costs in the Tribunal proceedings.
The Applicant submits that the Respondent attempts to overcome this conceptual difficulty by 'ascribing' to the Applicant a motive for making the application in the Supreme Court proceedings. In this regard, the thrust of the Respondent's argument is that the 'only reason' for the application in the Supreme Court proceedings was to 'short-circuit' the Tribunal proceedings and to 'negate the submissions of the Attorney General and the respondent's contentions'.
The Applicant submits that the Respondent has cited 'no compelling evidence' for that submission, instead relying on an inference that arises from the timing of the application '[seven] days prior to the Tribunal hearing'.
However, the Applicant submits that, as illustrated above, that is factually incorrect - at the time of the application to the Supreme Court, the Tribunal proceedings were in abeyance and there was no indication of when the further hearing would be listed. In those circumstances, the inference relied upon by the Respondent simply does not arise.
In the absence of that inference, there is no evidence to support a finding that the only reason the Applicant made the application in the Supreme Court proceedings was to, in effect, frustrate the Tribunal proceedings.
In any event, although there is no onus on the Applicant, it has adduced evidence (in the affidavit of Ms Anna Lea Hiltenkamp) that the application by the Applicant in the Supreme Court proceedings was made to overcome a deadlock that had arisen in those proceedings between the Applicant, its insurer in respect of the Property, the Applicant's bank as mortgagee of the Property, and the ODPP.
That 'deadlock' involved a dispute as to:
a)whether an insurance payment in respect of the damage suffered to the building on the Property was 'frozen' by virtue of the Freezing Order;
b)which entity should receive the insurance payment in respect of the damage suffered to the building on the Property; and
c)the application of those insurance monies.
The Supreme Court (Curthoys J) was satisfied with the arrangement proposed by the Applicant, and supported by the other parties, and found that it was in the interest of justice to make the orders sought. That is what occurred.
The Applicant further submits that the Respondent was aware of the above facts, including the facts relevant to the Applicant's motivation in making the application in the Supreme Court proceedings, prior to making this Application, having been served with the submissions made by the Applicant in the Supreme Court. Furthermore, the Respondent was represented at the hearing before Curthoys J as an interested nonparty.
Considering the above, the Applicant submits it is surprising that the Respondent now contends that the 'only' purpose for the application in the Supreme Court was to 'short-circuit' the Tribunal proceedings. It clearly was not.
The Applicant also challenges the Respondent's assertion that the issue of compliance with the Freezing Order was raised late in the proceedings. The Applicant submits that the issue of the Freezing Order was not raised 'for the first time' on 25 September 2020. Rather, the issue had been raised:
a)in correspondence between the Applicant and Respondent prior to the issuing of the Notice; and
b)in correspondence between the Applicant's solicitors and the Respondent after the issuing of the Notice.
The Applicant also refers to the Respondent's (original) SIFC where on 26 November 2019 Mr Nguyen raised the point that the Applicant could not comply with the Notice by reason of the Freezing Order. This fact was agreed by the Applicant in both its SIFCs.
Furthermore, the Respondent's witness, Mr Casimir Penheiro gave evidence to the effect that the Applicant had raised the question of whether it could comply with the Notice by reason of the Freezing Order. The Applicant notes that all these events occurred prior to the Applicant's amended SIFC which put the Freezing Order in contest.
The Applicant submits that the Respondent should have appreciated, and did in fact appreciate, that the Freezing Order issue was always a live issue on the facts. The Applicant further submits that this is borne out by the fact that the ODPP requested to inspect the Tribunal's file and raised the possibility of intervening based on the Freezing Order issue, prior to the Applicant amending its SIFC.
However, the Applicant accepts that the Freezing Order was not expressly raised as an 'issue' in its original SIFC. It was for that reason that the Applicant sought to amend its SIFC in order to accord procedural fairness to the Respondent, to give it notice in advance of the issues and contentions to be advanced at the hearing: cf. Schloffer and City of Bayswater [2020] WASAT 122 (S) at [3].
The Applicant submits that it was not unreasonable for the Applicant to amend its SIFC to identify the Freezing Order as an issue for determination in the Tribunal proceedings, nor was it an issue that was raised late in the proceedings. It had been expressly raised with the Respondent on many occasions prior to the amendment of its SIFC.
The Applicant also submits that the Respondent has not identified any other aspect of the Applicant's conduct in the Tribunal proceedings that is alleged to be unreasonable or improper.
In particular, the Respondent does not contend that the issues raised by the Applicant were either frivolous or vexatious. That is, the Respondent appears to implicitly accept that the issues were arguable and that it was not improper or unreasonable for the Applicant to seek review of the Respondent's decision on those bases.

The costs of the cost application

The Applicant seeks its costs in dealing with the Respondent's costs application. In this regard, it submits that the making of a costs application in relation to review proceedings which concern a genuine dispute as to planning merit normally involves unreasonable conduct warranting an order that the applicant for costs compensate the other party or parties for having had to defend the application: Aydogan and Town of Cambridge [2007] WASAT 19; (2007) 48 SR (WA) 239 at [47]-[48] (Aydogan).
The Applicant submits that in this case, there was no question that there was a genuine dispute as to the merits of the decision of the Respondent under review.
Ultimately, that review was unnecessary because the Respondent agreed to withdraw the Notice the subject of review following the making of the orders made by the Supreme Court. Accordingly, the Applicant sought, and was granted, leave to withdraw the Tribunal proceedings.
The Applicant also submits that, ordinarily in civil litigation, if it appears that both parties acted reasonably in commencing and defending the proceedings and continued to be reasonable until the litigation was settled or its further prosecution became futile, the proper exercise of the costs discretion will usually mean that the Court will make no order as to the costs of the proceedings: Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1997) 186 CLR 622 at 624-5 (McHugh J).
That principle applies a fortiori in a jurisdiction where there is a statutory presumption that the parties will bear their own costs.
There was nothing in the Applicant's conduct, either in the Tribunal or any other forum, that justified an order for it to pay the Respondent's costs. Accordingly, the Applicant submits, it was unreasonable for the Respondent to put the Applicant to the cost of defending a costs application and that the Respondent should be ordered to pay the Applicant's costs of defending this application, to be assessed if not agreed.

Consideration of the Respondent's application for costs

For the following reasons, I am not inclined to award costs to the Respondent.
In terms of the Respondent's claim for costs, I accept there is a sense of frustration at how the Tribunal proceedings transpired. The orders made by the Supreme Court on 18 November 2020 had the effect of rendering the Tribunal proceedings inutile. This is because the effect of those orders was to transfer the control of the Property away from the Applicant. From that point, the Tribunal proceedings no longer served any useful purpose. The parties, quite sensibly, agreed to the Tribunal proceedings being withdrawn.
I am prepared to accept, at least in broad terms, that the conduct of a party to Tribunal proceedings, in other related proceedings, may provide a basis for the making of a costs order in the Tribunal. I consider that it is possible that conduct in related proceedings may be such so as to render a party's conduct, for the purposes of the Tribunal proceedings, unreasonable. However, each case will turn on its own facts. Indeed, the factual background to each matter, and the conduct of the parties, always informs the question of costs when such issues arise for consideration.
In this instance, if I were satisfied on the facts, that the Applicant had used the Supreme Court to, in effect, defeat or 'short-circuit' the Tribunal processes, in circumstances where that could be said to be unreasonable. then I would be prepared to order costs. I see no reason why such conduct could not, in appropriate circumstances, be a relevant consideration in assessing the question of costs in the Tribunal having regard to the subject matter, scope and purpose of the SAT Act.
However, the factual background necessary to ground the making of an order for costs goes against the Respondent. I will explain why.
In effect, the Respondent's case is that the Applicant sought the Supreme Court orders to negate the Tribunal's final hearing. In doing so, the Respondent submits the Applicant's conduct was unreasonable.
In my view, the Respondent's application for costs implicitly rests on an anterior finding of fact. That fact is me being satisfied, on the balance of probabilities, that the Applicant sought the Supreme Court orders, which had the effect of amending the terms of the Freezing Order, for the purpose of frustrating, defeating, or rendering obsolete, the Tribunal proceedings.
However, based on the evidence before me, there is no reasonable basis that I can be satisfied that the Applicant's motivation in seeking to amend the terms of the Freezing Order was to render the Tribunal proceedings inutile.
The evidence before me, which was not challenged or contradicted by the Respondent, was that the terms of the Freezing Order were amended, by consent of the relevant parties, in order to overcome an impasse that had arisen in the Supreme Court proceedings in terms of the control and management of the Property.
Attachment ALH 7 to the affidavit of Ms Hiltenkamp sets out the Applicant's submissions in relation to the appointment of a third party to control the Property. The Respondent has produced no evidence to challenge those submissions so as to provide a basis for me to find, as a fact, that the Applicant sought the orders in the Supreme Court to, in effect, defeat the Tribunal proceedings.
There is no doubt that the orders made by the Supreme Court impacted the Tribunal proceedings. The Tribunal proceedings being withdrawn was a necessary consequence of the amendments to the terms of the Freezing Order.
However, there is no warrant for me to read into that, and to find, that the Applicant's motivation in seeking to amend the terms of the Freezing Order was directed primarily to defeating the Tribunal proceedings. On the evidence I have, I do not consider that that conclusion is reasonably open. That being the case there is no basis on which I could find that the Applicant's conduct was unreasonable.
On the question of whether the Applicant raised the issue of compliance with the Notice in the context of the Freezing Order late, I do not consider that the Applicant can be criticised in this regard. The Tribunal has, so far as I am aware, not yet had occasion to consider the effect of cl 13 of Sch 2 to the Planning and Development (LocalPlanning Schemes) Regulations 2015 (WA). The point being, the case was somewhat novel and therefore it is to be expected that the precise issues that need to be determined may evolve as the parties commenced their preparations (and the Tribunal commenced its deliberations).
I also accept the Applicant's submissions that the capacity of the Applicant to comply with the Freezing Order had been raised on the facts between the parties for some time prior to the Applicant identifying it as an issue that needed to be determined by the Tribunal.
The Respondent's application for costs should be dismissed.

Consideration of the Applicant's application for costs

In terms of the Applicant's application for its costs, this application also fails. It fails because I do not consider that the Respondent was unreasonable in making an application for the Tribunal to consider the question of costs.
It is not without relevance that it is the Applicant's conduct that resulted in the Tribunal proceedings being rendered inutile. That outcome arose from the Applicant's application in another forum, being the Supreme Court. It is also not without relevance that the making of the Supreme Court orders were, as a matter of fact, made shortly before the final hearing in the Tribunal.
The Supreme Court orders were made on 18 November 2020 and the final hearing was set down to commence in the Tribunal on 26 November 2020. That timeframe, of itself, clearly means that the parties would have been substantially progressed in their preparations for the final hearing at the time the Supreme Court made orders. The point being that the Respondent would have expended considerable costs by the time the matter in the Tribunal was withdrawn.
While the Applicant's conduct in seeking to amend the Freezing Order was not unreasonable, it did result in costs in being thrown away and the Tribunal's resources being wasted. I say 'thrown away' and 'wasted' because it is not the case that the proceedings were, in effect, resolved between the parties. They were not.
The arguments about compliance with the Freezing Order, the debate about the heritage qualities of the dwelling and the concerns about demolish by neglect remain unresolved. In fact, Westpac, which was appointed to manage and control the Property, has itself lodged an application for review (DR 80 of 2021).
Having regard to that background, I can appreciate the Respondent's frustration at its costs being thrown away. It was not unreasonable for it to seek its costs but, as I have explained, I do not agree that the necessary factual basis for the making of a costs order against the Applicant exists.
In the exercise of discretion, I am not prepared to award costs against the Respondent for making the costs application. The Applicant's application for its costs will also be dismissed.
It should be understood that not every unsuccessful costs application is to be regarded as unreasonable and thereby attract a costs order. Certainly, Aydogan should not be read in that way.Ultimately, each application for costs will turn on its own facts.
It is also the case that the circumstances in this case are very different to those that arose in Aydogan. In Aydogan the successful party of a review against the Town of Cambridge's (Town's) decision, in relation to a proposed dwelling, sought costs from the Town and an intervener. The Tribunal found that there was nothing unreasonable in the Town making the reviewable decision it did. Likewise, the intervener's conduct was not unreasonable.
In this instance the actions of the Applicant rendered the Tribunal proceedings inutile at a time when the parties would have expended considerable moneys. While the Applicant's conduct was not unreasonable, equally I find that the Respondent's conduct in seeking to recover its costs was not unreasonable, although its claim failed. As the Tribunal recently observed in Madame Ma's, in the context of a costs application, 'the exercise of the Tribunal's review jurisdiction regularly makes true the maxim that "reasonable minds can differ"': at [33].

Ultimately, the costs in this matter should lie where they have fallen. There will be no order for costs.

Orders

The Tribunal orders:
1.The respondent's application for costs is dismissed.
2.The applicant's application for costs is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
DR S WILLEY, SENIOR MEMBER
3 AUGUST 2021