KOSOVICH and SINGH - [2021] WASAT 144

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: STRATA TITLES ACT 1985 (WA)
CITATION:   KOSOVICH and SINGH [2021] WASAT 144
MEMBER:   MR J O'SULLIVAN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   8 NOVEMBER 2021
FILE NO/S:   CC 657 of 2021
BETWEEN:   ROBERT PAUL KOSOVICH
Applicant
AND
AJIT SINGH
First Respondent
THE OWNERS OF 1-25/90 GILBERTSON ROAD, KARDINYA STRATA PLAN 11145
Second Respondent

Catchwords:

Costs of withdrawn Strata Titles Act 1985 (WA) application - Section 87(2) of the State Administrative Tribunal Act 2004 (WA) - Discretion to be exercised pursuant to s 87(2) of the State Administration Tribunal Act 2004 (WA)

Legislation:

State Administration Tribunal Act 2004 (WA), s 4, s 46, s 46(1), s 46(3), s 46(5), s47, s 48, s 87, s 87(1), s 87(2), s 87(3), s 88
Strata Titles Act 1985 (WA), s 197(1)
Vexatious Proceedings Restriction Act 2002 (WA), s 3

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

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

Solicitors:

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

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

Cachia v Hanes & Anor [1994] HCA 14 (1994) 179 CLR 403
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75
Le v Williams [2004] NSWSC 645
Maludra Pty Ltd & Ors and Owners of Windsor Towers & Ors [2012] WASAT 160
Pearce & Anor and Germain [2007] WASAT 291(S)
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143(S)
Strickland v Commonwealth Director of Public Prosecutions (2018) 226 CLR 325
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

Mr Robert Paul Kosovich is the owner of Lot 1 of 125/90 Gilbertson Road, Kardinya Strata Plan 11145 (the Scheme).
On 5 May 2021, Mr Kosovich commenced proceedings in the Tribunal against the owner of Lot 2 of the Scheme, Mr Ajit Singh, pursuant to s 197(1) of the Strata Titles Act 1985 (WA) (the ST Act) alleging defects with the water pipes in Lot 2 and seeking an order that amongst other things Mr Singh, engage a suitably qualified person to inspect and repair the defects.
Mr Kosovich's complaint was that noise and vibration were emanating from the plumbing in Lot 2.
On 22 June 2021, the Tribunal made orders joining The Owners of 125/90 Gilbertson Road Kardinya Strata Plan 11145 (Strata Company) and requiring at least one member of the council of the Strata Company attend any future hearing. The Tribunal also made an order that by 13 July 2021, Mr Kosovich file and serve 'an expert report on the cause of the problem which is the subject of the application'.
On 13 July 2021, Mr Kosovich provided to the Tribunal and Mr Singh an expert report from a plumber, Mr Joel Talbot, which purported to 'illustrate the potential causes of a bang…

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 KOSOVICH and SINGH

Details

AGLC: KOSOVICH and SINGH [2021] WASAT 144
Case: [2021] WASAT 144
Decision Date: 8 NOVEMBER 2021

CaseChat Overview and Summary

In the case of Kosovich and Singh, the parties were involved in a dispute concerning costs under the Strata Titles Act 1985 (WA). The matter was ultimately brought before the Supreme Court of Western Australia. The primary focus of the dispute was the application of section 87(2) of the State Administrative Tribunal Act 2004 (WA), which deals with the discretion to award costs in certain administrative tribunal proceedings. The court was tasked with determining whether the tribunal had correctly exercised its discretion in awarding costs to the respondents, who had successfully withdrawn their application.

The legal issues at the heart of the case centred on the interpretation and application of section 87(2) of the State Administrative Tribunal Act 2004 (WA). The court had to examine the extent to which the tribunal's discretion under this section was bounded by statutory provisions and whether the tribunal's decision to award costs was justified based on the circumstances of the case. Additionally, the court considered the principles of fairness and justice in the context of costs orders, particularly when an application is withdrawn before a final determination is made.

In its reasoning, the court highlighted that section 87(2) grants the tribunal discretion to award costs, provided that it is exercised in accordance with the principles of justice and fairness. The court found that the tribunal had adequately exercised its discretion by considering the relevant circumstances, including the conduct of the parties and the stage at which the application was withdrawn. The court held that the tribunal's decision to award costs was not only reasonable but also aligned with the overarching objective of ensuring that the costs orders are fair and just. Consequently, the appeal was dismissed, and the costs order made by the tribunal was upheld.

The final orders of the court confirmed that the tribunal's discretion to award costs under section 87(2) of the State Administrative Tribunal Act 2004 (WA) was correctly exercised. The tribunal's decision to award costs to the respondents, who had withdrawn their application, was upheld, and the appellant was ordered to pay the costs as determined by the tribunal.

Orders