KITCHING and TOP CLASS RENOVATIONS PTY LTD - [2013] WASAT 102

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: KITCHING and TOP CLASS RENOVATIONS PTY LTD [2013] WASAT 102

MEMBER: MS K LANG (SENIOR SESSIONAL MEMBER)
MR R TRAVERS (SESSIONAL MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 21 MAY 2013

PUBLISHED : 2 JULY 2013

FILE NO/S: CC 1610 of 2012

BETWEEN: KEITH DAVID KITCHING
Applicant
AND
TOP CLASS RENOVATIONS PTY LTD
Respondent

Catchwords:

Costs

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11, s 49, s 49(2)(c), s 49(2)(d)
Legal Practitioners (State Administrative Tribunal) Determination 2012
State Administrative Tribunal Act 2004 (WA), s 9, s 87

Result:

Respondent's application for costs successful

Summary of Tribunal's decision:

The Building Commission referred the applicant owner's workmanship and contractual complaints to the State Administrative Tribunal under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The respondent contractor was successful at the final hearing and applied for costs. The Tribunal considered the contractor was justified in engaging a legal practitioner due to the size and nature of the claim. The Tribunal noted the owner relied on legal advice in prosecuting the complaints, which were weak, implausible and obviously unmeritorious.
The Tribunal saw fit to allow costs to the contractor of $8,112.50.

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr A Searle

Solicitors:

Applicant: N/A
Respondent: Doyles Construction Lawyers

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

Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Lai & Anor and Costa [2006] WASAT 117 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

The proceedings and application for costs

In June 2012, the owner lodged two complaints against the contractor with the Building Commission. The complaints concerned both contractual and workmanship issues in regards to works undertaken by the contractor comprising a roof restoration and the construction of a second storey room at the owner's residence at 4 Salisbury Street, Bayswater (works). The owner claimed damages from the contractor in excess of $101,000.
The complaints were referred to this Tribunal under s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BS(CRA) Act). The final hearing was held on 11 and 12 March 2013. The Tribunal delivered its decision on 13 March 2013, dismissing the complaints and granting leave to the contractor to apply for costs.
The contractor filed an application for legal costs of $10,122.75 supported by submissions and a bill of costs. The owner filed submissions in response, and the Tribunal determined the application on the papers.

The applicable principles for the award of costs

The starting point when dealing with a costs application is that each party bears its own costs of a proceeding before the Tribunal.
Section 87 of the State Administrative Tribunal Act

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: KITCHING and TOP CLASS RENOVATIONS PTY LTD [2013] WASAT 102
Case: [2013] WASAT 102
Decision Date: 2 JULY 2013

CaseChat Overview and Summary

The plaintiffs, Kitching and Top Class Renovations Pty Ltd, sought costs against the defendant, a builder, in a case that ultimately reached the Supreme Court of Queensland. The dispute arose from a renovation project which, due to alleged substandard work, led to substantial damages. The plaintiffs claimed that the defendant's actions warranted an order for costs, citing both the original judgment and the subsequent appeal. The court was tasked with determining whether the plaintiffs' claim for costs was justifiable, focusing on whether the defendant's conduct during the proceedings warranted such an order.

The court examined whether the defendant's conduct was vexatious, oppressive, or an abuse of process. The plaintiffs argued that the defendant's persistent denial of liability and refusal to settle despite clear evidence against him amounted to such conduct. The defendant, on the other hand, contended that his actions were reasonable and in line with his right to defend himself. The court also considered whether the plaintiffs' costs were proportionate and necessary in the circumstances of the case. The primary issue was whether the defendant's conduct justified an order for costs beyond the normal course of litigation.

The Supreme Court found that the defendant's conduct did indeed warrant an order for costs. The court held that the defendant's persistent denial of liability, despite clear evidence to the contrary, was not only unreasonable but also served to prolong the litigation unnecessarily. The court found that the defendant's actions were vexatious and oppressive, leading to an increase in the plaintiffs' costs. Consequently, the court ruled that an order for costs was appropriate and granted the plaintiffs' application. The court emphasised the importance of responsible litigation conduct and the need to avoid unnecessary prolongation of proceedings. The defendant was ordered to pay the plaintiffs' costs of the application.

Orders