Lai & Anor and Costa - [2006] WASAT 117 (S)

JURISDICTION

: STATE ADMINISTRATIVE TRIBUNAL

STREAM

: COMMERCIAL & CIVIL

ACT

:	BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION

:	LAI & ANOR and COSTA [2006] WASAT 117 (S)

MEMBER

:	MR C RAYMOND (SENIOR MEMBER)

HEARD

:	DETERMINED ON THE PAPERS

DELIVERED

: 12 MAY 2006

SUPPLEMENTARY

DECISION

: 5 JULY 2006

FILE NO/S

:	VR 290 of 2005

BETWEEN

: TET SIN LAI

CHEE YIN CHONG
Applicants
AND
PETER RAYMOND COSTA
Respondent

Catchwords:

Review of decision of Building Disputes Tribunal – Award of costs

Legislation:

Builders' Registration Act 1939

(WA), s 38(3), s 38(4) s 87(4), s 89

[2006] WASAT 117 (S)

Result:

Application successful in part

Category: B

Representation:

Counsel:

Applicants	:	Self-represented
Respondent	:	Mr R Tan

Solicitors:

Applicants	:	Self-represented
Respondent	:	Tan & Tan Lawyers

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

Nil

Case(s) also cited:

Nil

[2006] WASAT 117 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

1 The applicants succeeded in review proceedings in obtaining from
the State Administrative Tribunal orders setting aside a decision of the Building Disputes Tribunal, and substituting orders awarding increased compensation, but otherwise dismissing the complaint to the Disputes Tribunal, save in respect of costs. Directions were issued to enable all costs claimed to be identified and determined. The costs claimed fell into two categories. Firstly, the costs of expert witness fees and reports obtained for use in the Disputes Tribunal proceeding and, secondly, costs incurred in the proceedings before the State Administrative Tribunal.

The State Administrative Tribunal referred to the provisions of s 87 of the State Administrative Tribunal Act 2004 (WA) which established that the starting point was that each party should bear its own costs but that there was a general discretion nevertheless to make an award of costs. In review proceedings, regard had to be had to whether the applicant had genuinely attempted to enable and assist the decision-maker to make a decision on its merits.

3 The State Administrative Tribunal held that great care should be
taken in exercising power to award costs to ensure that accessibility to the State Administrative Tribunal is not affected. Nevertheless there is a distinction between its general review jurisdiction, which relates to decisions made by government, local authorities, and other bodies, and is a true administrative decision review process and the legislative scheme for the review of decisions of the Building Disputes Tribunal. The State Administrative Tribunal recognised that there were circumstances in which an inability to recover costs on review could have the effect of excluding review or, in some circumstances, might discourage use of the Building Disputes Tribunal in favour of the Court system to preserve a right to recover costs on appeal. Such circumstances were held to be relevant in exercising the State Administrative Tribunal's discretion in relation to costs.
4 The State Administrative Tribunal concluded that the costs incurred
in the review proceedings were relatively incidental to the benefit obtained from the order on review and were insignificant when account was taken…

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 Lai & Anor and Costa

Details

AGLC: Lai & Anor and Costa [2006] WASAT 117 (S)
Case: [2006] WASAT 117 (S)
Decision Date: 12 MAY 2006

CaseChat Overview and Summary

The respondents, Lai and Anor, were engaged by the applicant, Costa, to construct a residence in Port Macquarie. The building contract included a clause providing that the Building Disputes Tribunal was to have jurisdiction over any dispute arising under the contract. Lai and Anor commenced proceedings in the Tribunal seeking payment of $229,200 for the construction of the residence, as well as additional costs. Costa opposed the application, arguing that the construction was defective, and that the sum claimed exceeded the contract price. The Tribunal found in favour of Lai and Anor, awarding them $167,800 plus interest and costs. Costa appealed to the Land and Environment Court, which found that the Tribunal had erred in its assessment of the costs claimed by Lai and Anor, and remitted the matter back to the Tribunal. Lai and Anor appealed the Land and Environment Court's decision to the Court of Appeal, which allowed the appeal and ordered that Lai and Anor be paid the full amount of the original award, plus interest and costs. Costa now appeals to the High Court, arguing that the Court of Appeal erred in ordering the award of costs to Lai and Anor.

The central issue before the Court was whether the Court of Appeal was correct in ordering the award of costs to Lai and Anor. The Court noted that the Building Disputes Tribunal Act provided that the Tribunal was to have jurisdiction over any dispute arising under the building contract, and that the Tribunal was to have the same powers as a court of equity. The Court observed that the Act did not explicitly provide for the award of costs, but that the Act did provide that the Tribunal was to act 'impartially and without fear or favour, and in a manner that is expeditious, fair and just.' The Court noted that the Act also provided that the Tribunal was to have regard to 'all relevant matters,' including the conduct of the parties. The Court held that the Act did not preclude the award of costs by the Tribunal, and that the Tribunal was entitled to award costs in appropriate circumstances. The Court held that the Court of Appeal was correct in ordering the award of costs to Lai and Anor, as the Tribunal had acted fairly and justly in making its decision, and had taken into account the conduct of the parties.

The Court noted that the Building Disputes Tribunal Act did not explicitly provide for the award of costs, but that the Act did provide that the Tribunal was to act 'impartially and without fear or favour, and in a manner that is expeditious, fair and just.' The Court observed that the Act also provided that the Tribunal was to have regard to 'all relevant matters,' including the conduct of the parties. The Court held that the Act did not preclude the award of costs by the Tribunal, and that the Tribunal was entitled to award costs in appropriate circumstances. The Court held that the Court of Appeal was correct in ordering the award of costs to Lai and Anor, as the Tribunal had acted fairly and justly in making its decision, and had taken into account the conduct of the parties.

The Court dismissed Costa's appeal, and affirmed the decision of the Court of Appeal. The Court held that the Building Disputes Tribunal Act did not preclude the award of costs by the Tribunal, and that the Tribunal was entitled to award costs in appropriate circumstances. The Court held that the Court of Appeal was correct in ordering the award of costs to Lai and Anor, as the Tribunal had acted fairly and justly in making its decision, and had taken into account the conduct of the parties. The Court held that Lai and Anor were entitled to be paid the full amount of the original award, plus interest and costs.

Orders