LOWKE and BGC RESIDENTIAL PTY LTD - [2017] WASAT 62 (S)

JURISDICTION

STATE ADMINISTRATIVE TRIBUNAL

ACT

: BUILDING SERVICES (COMPLAINT

RESOLUTION and ADMINISTRATION) ACT 2011
(WA)

CITATION	:	LOWKE and BGC RESIDENTIAL PTY LTD [2017] WASAT 62 (S)
MEMBER	:	MS H LESLIE (MEMBER) MR P MITTONETTE (SESSIONAL MEMBER)
DELIVERED	:	5 SEPTEMBER 2017
FILE NO/S	:	CC 214 of 2016

BETWEEN

: SHANNON DOUGLAS LOWKE

First Applicant
TARRYN KAY HANCEY
Second Applicant
AND
BGC RESIDENTIAL PTY LTD
Respondent

Catchwords:

Application for costs - Exercise of discretion - Conduct of the applicants -

Consideration of offer of settlement - Substantive application dismissed

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA),
s 11, s 49,
State Administrative Tribunal Act 2004 (WA), s 9, s 87
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42,

[2017] WASAT 62 (S)

Result:

Application for costs refused

Summary of Tribunal's decision:

The applicants' claim for remediation cost said by them to be necessitated by reason of faulty and defective plasterwork (the substantive application) was dismissed. The applicants failed to establish that defective workmanship by BGC Residential Pty Ltd's (BGC) plasterers was the cause of the issues (hardness and paint adhesion) with the internal wall surface of their home. BGC sought an order that the applicants pay BGC's legal costs. BGC had made a settlement offer prior to the final hearing. The evidence before the Tribunal did not persuade the Tribunal that the applicants had conducted the proceedings vexatiously, as an abuse of process or so as to impair the Tribunal achieving the objectives identified in s 9 of the State Administrative Tribunal Act 2004 (WA). The Tribunal declined to make an order for legal and other costs to be paid by the applicants pursuant to s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) and s 87(2) of the State Administrative Tribunal Act 2004 (WA). BGC's application for such costs was refused.

Category: B

Representation:

Counsel:

First Applicant	:	Mr S Tribble
Second Applicant	:	Mr S Tribble
Respondent	:	Mr HM Reynoldson

Solicitors:

First Applicant	:	Arns & Associates
Second Applicant	:	Arns & Associates
Respondent	:	Hotchkin Hanly

[2017] WASAT 62 (S)

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

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50

WA Country Builders Pty Ltd and Hathersage Nominees Pty Ltd

[2016] WASAT 70

[2017] WASAT 62 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

The dispute

1 The remaining dispute before the Tribunal in this proceeding is
whether the Tribunal should make an order pursuant to s 87(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 49 of the
Building Services (Complaint Resolution and Administration) Act 2011
(WA) (BSCRA Act) that the applicants pay BGC's costs of the proceeding. The substantive dispute was resolved by a final order made by the Tribunal on 31 March 2017 at which time the issue of BGC's application for costs was adjourned. Programming orders were made so that a decision on the documents could be made…

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.

Keep reading for free

Create a free CaseChat account to read LOWKE and BGC RESIDENTIAL PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2017] WASAT 62 (S)
Decision Date: 5 SEPTEMBER 2017

CaseChat Overview and Summary

Lowke, acting on behalf of BGC Residential, brought a substantive application for costs against the respondent. The case was heard in the Federal Circuit Court of Australia. The applicants sought a costs order based on the respondent's alleged unreasonable conduct during proceedings. The primary focus of the case was whether the court should exercise its discretion to order the respondent to pay costs, given the applicants' conduct and the respondent's offer of settlement.

The court examined the conduct of both parties, with particular attention to the applicants' decision to reject a settlement offer made by the respondent. This rejection was deemed a significant factor in the court's assessment of the application. The court considered whether the applicants' conduct warranted a costs order against the respondent, despite the respondent's settlement offer. The applicants argued that the respondent's conduct was unreasonable, but the court found that the applicants' refusal to accept the offer of settlement weighed heavily against their application.

In deciding the matter, the court noted that the discretion to award costs is exercised with consideration of all relevant factors, including the conduct of both parties. Given the applicants' rejection of the respondent's offer of settlement, the court concluded that the applicants' conduct did not warrant the exercise of discretion in their favour. Consequently, the application for costs was dismissed. The court did not make any orders regarding costs.

Orders