KOS and DND BUILDING CO PTY LTD - [2022] WASAT 32

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   KOS and DND BUILDING CO PTY LTD [2022] WASAT 32
MEMBER:   MS P LE MIERE, MEMBER
MR W GREGORY, SESSIONAL MEMBER

HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   28 APRIL 2022
PUBLISHED           :   28 APRIL 2022
FILE NO/S:   CC 1699 of 2020
BETWEEN:   SAFETA KOS
First Applicant
JUSUF KOS
Second Applicant
MUSTAFA KOS
Third Applicant
FADILA KOS
Fourth Applicant
AND
DND BUILDING CO PTY LTD
Respondent

Catchwords:

Building services - Section 51 application - No attendance by respondent - Costs - Turns on its own facts

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s11(1)(d), s 49, s 51(2)(a), s 51(2)(b)
State Administrative Tribunal Act 2004 (WA), s 60(2), s 87(1), s 88(2)
State Administrative Tribunal Rules 2004 (WA), r 42

Result:

Application allowed

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Third Applicant	:	N/A
Fourth Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	Vogt Graham Lawyers
Second Applicant	:	Vogt Graham Lawyers
Third Applicant	:	Vogt Graham Lawyers
Fourth Applicant	:	Vogt Graham Lawyers
Respondent	:	N/A

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

Kos and DND Building Co Pty Ltd [2020] WASAT 95
Kos and DND Building Co Pty Ltd [2020] WASAT 95 (S)
Lai & Anor and Costa [2006] WASAT 117 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Pearce & Anor and Germain [2007] WASAT 291 (S)
Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter was heard on 19 October 2021 before Sessional Member Gregory and I. Reasons for decision were delivered orally on 1 November 2021. This is an application for costs by the applicants.
On 1 November 2021 we ordered:
1)the order of the Tribunal dated 19 August 2020 be revoked;
2)the respondent to pay the applicants the sum of $104,182.62 within 14 days;
3)the applicants have liberty to apply for a costs order within 21 days;
4)in the event the applicants make an application for costs, the respondent has 14 days from the date of the applicants filing their submissions, to file submissions in reply; and
5)any application for costs be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).
Various extensions of time were given to both the applicants and respondent to file their submissions with final submissions of the respondent being due on 26 January 2022.

Relevant Background

The respondent did not attend the final hearing on 19 October 2021 and for the reasons given in the substantive matter, we determined to proceed to hear the matter in its absence.
Safeta Kos, Jusuf Kos, Mustafa Kos and Fadila Kos (

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: KOS and DND BUILDING CO PTY LTD [2022] WASAT 32
Case: [2022] WASAT 32
Decision Date

CaseChat Overview and Summary

The applicants, Safeta Kos, Jusuf Kos, Mustafa Kos and Fadila Kos, applied for costs against the respondent, DND Building Co Pty Ltd, in relation to proceedings before the State Administrative Tribunal. The applicants alleged the respondent had failed to comply with a Building Remedy Order (BRO) made by the Tribunal. The proceedings were heard by the Tribunal on 19 October 2021, with the respondent not attending. The Tribunal ordered that the BRO be revoked and that the respondent pay the applicants $104,182.62 within 14 days. The applicants were given liberty to apply for costs and the respondent was given 14 days to respond if such an application was made. The matter was determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act).The Tribunal considered the factors relevant to awarding costs and found that the justice of the case supported moving away from the initial position that each party should bear their own costs. The Tribunal found the respondent's conduct during the proceedings was unreasonable and that its case was weak or unmeritorious. The Tribunal found the respondent's submissions regarding the timing of the applicants' costs application and the amount claimed were not well founded. The Tribunal ordered the respondent to pay a contribution to the applicants' legal costs in the sum of $18,668 together with disbursements of $4,881, being a total of $23,549. The respondent has liberty to apply to the Tribunal within 14 days of the date of the order to be heard with respect of the issue of the time to pay the costs set out above.

Orders