Lai & Anor and Costa

Case [2006] WASAT 117

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL

STREAM:   COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION:   LAI & ANOR and COSTA [2006] WASAT 117

MEMBER:   MR C RAYMOND (SENIOR MEMBER)

HEARD:   12 SEPTEMBER 2005 AND

17 JANUARY 2006
DECISION RESERVED
1 FEBRUARY 2006

DELIVERED          :   12 MAY 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 ­ Whether hearing unfair ­ Applicable principles ­ Adequacy of reasons for decision ­ Application for extension of time, leave to review decision and review heard together

Legislation:

Builders' Registration Act 1939 (WA), s 33A(3), s 35(2)(a), s 36(1), s 36(2), s 36(5), s 41
Home Building Contracts Act 1991 (WA), s 3, s 25B, cl 9, cl 18(h)

State Administrative Tribunal Act 2004 (WA), s 27

Result:

Application substantially successful

Category:    B

Representation:

Counsel:

Applicants:     Self-represented

Respondent:     Mr R Tan

Solicitors:

Applicants:     Self-represented

Respondent:     N/A

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

Bellgrove v Eldridge (1954) 90 CLR 613

BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Cachia v Hanes & Anor (1994) 179 CLR 403

Esther Investments Pty Ltd v Markalinga Pty Ltd 2 WAR 196

Jackamarra v Krakouer [1998] HCA 27

Nelson v Mardesic (1999) 22 SR 42

Palata Investments Ltd v Burt and Sinfield Ltd (1985) 1 WLR 942

Riley v The State of Western Australia [2005] WASCA 190

Tangent Nominees Pty Ltd and Edwards & Anor [2005] WASAT 119

Tangent Nominees Pty Ltd v Edwards & Anor [2006] WASC 45

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL: 

Summary of the Tribunal's decision

  1. The applicants applied for leave to review a decision of the Building Disputes Tribunal reflected in an Order to Pay made on 5 May 2005.  They also sought an extension of time for the making of the application.  Although the matter was set down initially only for a hearing of the application for an extension of time and for leave to review the decision, by consent, the review was dealt with at the same time.

  2. The Tribunal extended time for the making of the application because the application was only 11 days late, the reasons for the delay were cogently explained, the application for review itself had merit and the respondent did not suffer any particular prejudice.

  3. In relation to the leave application, the Tribunal found that the Disputes Tribunal had so controlled the hearing that it had confused the applicants, and had resulted in the applicants not being given a fair opportunity to present their case.  Further, the reasons for decision were seriously deficient.  There was no reference to any of the material evidence.  The Tribunal's total considerations, including the orders made, were contained in nine short paragraphs, without any rationale from which the intellectual processes resulting in the decision could be discerned.  The Tribunal referred to principles governing the adequacy of reasons for decision, and in particular, the requirement…

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AGLC
Lai & Anor and Costa [2006] WASAT 117
Case
[2006] WASAT 117
Decision Date

CaseChat Overview and Summary

The case involved Lai and another party, referred to as Anor, against Costa. The dispute centred around the review of a decision made by the Building Disputes Tribunal, particularly the award of costs. The applicants sought an extension of time to bring their application for leave to review, as well as leave to review the decision itself. The court was required to determine whether the applicants were entitled to an extension of time and whether they should be granted leave to review the decision of the Building Disputes Tribunal, with certain exceptions.

The primary legal issues before the court were whether the applicants had a valid reason for the delay in bringing their application for leave to review and whether the review was warranted for the specific parts of the decision in question. The court considered the circumstances of the delay and the merits of the review application. The applicants argued that the delay was due to their solicitors' error and that they had a valid case for review, particularly in relation to the award of costs.

The court found that the applicants had a sufficient reason for the delay, granting them an extension of time. Regarding the leave to review, the court ruled that the applicants could review the decision except for the lost opportunity claims, the offences claim, and item 68 of the claims not assessed by the Disputes Tribunal. The court was satisfied that the applicants had a valid basis for the review of the costs award.

The court's final orders were to grant the applicants an extension of time for bringing their application for leave to review and to grant leave to review the decision of the Disputes Tribunal, with specified exceptions. This outcome allowed the applicants to pursue their claims for review while maintaining the integrity of certain parts of the original decision.

Orders

Orders of the court

1. The applicants are granted an extension of time for the bringing of this application for leave to review the decision of the Disputes Tribunal reflected in the Order to Pay dated 5 May 2005. 2. The applicants are granted leave to review the said decision save in respect of the lost opportunity claims, the offences claim and the item 68 of the claims not assessed by the Disputes Tribunal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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