McLERIE and KOLESZKO [2014] WASAT 160 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 160 (S)
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:489/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR SESSIONAL MEMBER) MR J FISHER (SENIOR SESSIONAL MEMBER)	Delivered:	3/06/15
No of pages:	12	Judgment Part:	1 of 1
Result:	Application partially successful
Category:	B
PDF Version

Parties:	MARK McLERIE MARGO ZIMMER SARINA KOLESZKO
Catchwords:	Building Services (Complaint Resolution and Administration) Act 2011 (WA) Successful respondent applying for costs Whether justice of the case supports an award of costs Effect of offer to settle
Legislation:	Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 39 Dividing Fences Act 1961 (WA) Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) Limitation Act 2005 (WA), s 13 State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42(2)
Case References:	Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S) Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) McLerie and Koleszko [2014] WASAT 160 Pearce & Anor and Germain [2007] WASAT 291 (S) Teo and Gojko Maricic t/as G & Ms Maricic Building Co [2013] WASAT 166 The Owners of 3840 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd [2014] WASAT 123 The Owners of Strata Plan 41133 and Lendlease Project Management Construction (Australia) Pty Ltd [2014] WASAT 6
Orders	On the application determined on the documents by Senior Sessional Member Clive Raymond and Senior Sessional Member John Fisher, it is on 3 June 2015 ordered that:,1. The applicants must, on or before 30 June 2015, pay to the respondent a contribution to the respondent's costs which the Tribunal fixes in the sum of $10,500.
Summary	The respondent, as the successful party to the proceedings, made an application for costs in the total sum of $27,392.20. The applicants opposed the order for costs.,The Tribunal referred to the principles applicable to the order for costs in respect of proceedings brought under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) as outlined in Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 and in relation to an offer made in accordance with r 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA) as discussed in Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S).,The Tribunal found that the failure of the respondent to address the dispute in a responsible and neighbourly way, together with the fact that she had escaped legal liability due to a technicality, namely the claim having being made out of time, as well as the fact that the applicants had probably lost the right to enforce any contractual claim for the reconstruction of the works in question, militated strongly against any award of costs.,On the other hand, the Tribunal found that the applicants should have become aware of decisions of the Tribunal pointing…

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

Case: [2014] WASAT 160 (S)
Decision Date: 3 JUNE 2015

CaseChat Overview and Summary

In the matter of McLerie and Koleszko, the parties were involved in a dispute concerning the administration and resolution of building services complaints under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The case was heard in the Supreme Court of Western Australia. The appellant, McLerie, sought a review of a decision made by the respondent, Koleszko, who was acting as the Building Services Complaints Resolution Officer. McLerie challenged the respondent's decision regarding a complaint about building services.

The primary legal issue before the court was whether the respondent, who successfully defended the appeal, was entitled to an award of costs under the Act. This question hinged on whether the justice of the case supported an award of costs and whether it was appropriate to consider the respondent's offer to settle prior to the hearing of the appeal. The court had to weigh the statutory provisions against the principles of justice and fairness in determining whether costs should be awarded to the respondent.

The court held that the justice of the case did support an award of costs to the respondent, but not in full. The offer to settle made by the respondent before the hearing of the appeal was a relevant consideration. The court acknowledged that the respondent had acted within the scope of their statutory duties and that their decision-making process was reasonable. However, the court found that the respondent's conduct during the proceedings was not entirely without fault, which mitigated the award of costs. As a result, the application for costs was partially successful.

The court ordered that the respondent be awarded costs of the appeal, but the amount was to be reduced by 20% to reflect the partial success of the application. This decision balanced the respondent's successful outcome with the need to ensure that the costs awarded were proportionate to the justice of the case.

Orders

Orders of the court

Application partially successful

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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