| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : MOFTAH and APG HOMES PTY LTD [2013] WASAT 23 MEMBER : MR S ELLIS (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 FEBRUARY 2013 FILE NO/S : CC 956 of 2012 BETWEEN : MAGUED MOFTAH Applicant
AND
APG HOMES PTY LTD
Respondent
Catchwords: Building Services (Complaint Resolution and Administration) Act 2011 (WA) Proportionality of costs Legislation: Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49
(Page 2)
Result: Payment ordered
Summary of Tribunal's decision: In its orders of 2 October 2012, the Tribunal allowed the applicant to apply for a further order about the costs of Dr and Mr Airey attending at the Tribunal on 31 August and 3 September 2012. The applicant applied seeking an additional $17,594.04. The Tribunal allowed costs at $9,597.50 and indicated that, apart from the specific reasons for disallowing certain items claimed, it was concerned that the costs claimed were out of proportion to the nature and magnitude of the dispute.
Category: B
Representation: Counsel:
Applicant : Self-represented
Respondent : Mr M Peers
Solicitors:
Applicant : N/A
Respondent : N/A
Case(s) referred to in decision(s):
Nil
(Page 3)
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 This decision relates to the costs incurred by Mr Magued Moftah (applicant) in relation to CC 956 of 2012. 2 On 2 October 2012, the following orders were made: 1. The Respondent do remedy the defective concreting work of 70 and 70A Jackson Avenue, Karrinyup by applying ECB AntiFracture Membrane, or equivalent, to: (a) the wet areas of both houses; and (b) such parts of the ground floor living areas of both houses, not exceeding 256 [square metres] in total, as the [Applicant] intend[s] to tile and which they specify as such by notice in writing to the Respondent by 15 October 2012. 2. The Respondent do within 14 days pay the Applicant [his] costs of the complaint fixed at $6,747.12, together with the costs of the attendance at the Tribunal of Dr and Mr Airey on 31 August 2012 and 3 September 2012. 3. If the parties are unable to agree the costs of the attendance of Dr and Mr Airey at the Tribunal on 31 August and 3 September 2012, the Applicant may apply for those costs to be determined by the Tribunal by notice in writing to the Tribunal and the Respondent. 3 The parties did not reach agreement in accordance with the third order. Accordingly, it is necessary to make a determination of the costs in accordance with s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (BS(CRA) Act). By letter dated 1 November 2012, the applicant requested the Tribunal to make a determination. Further materials were received from APG Homes Pty Ltd (respondent) on 9 November and 14 December 2012, and from the applicant on 5 December 2012 and 22 January 2013. The decision as to costs was made on the papers. The applicant's letter dated 5 December 2012 included a letter from Airey Taylor Consulting (Airey) dated 6 December 2012. 4 It must be recalled that there has already been a determination of the applicant's entitlement to costs under s 49 of the BS(CRA) Act. That determination was made on 2 October 2012 on the basis of the materials provided by the applicant as part of his submissions at the start of the substantive hearing of the matter. It is embodied in order 2 set out above. The applicant asked, in effect, for a reconsideration of the costs order previously made, but it is not open to the Tribunal, as constituted for this (Page 4)
matter, to reconsider the terms of order 2 or the question of costs generally. 5 The only area left open for further consideration, pursuant to the orders of 2 October 2012, was the costs of the respondent in connection with the compulsory conference on 31 August 2012 and the further hearing on 3 September 2012. These matters were left open for further consideration because they would not reasonably have been in the contemplation of the applicant when his submissions were provided. 6 The applicant now seeks payment of three invoices submitted by Airey:
| Invoice | Date | Amount | | 33770 | 20 August 2012 | $2,750.00 | | 33769 | 28 August 2012 | $2,287.45 | | 33822 | 10 September 2012 | $12,556.60 | Total | $17,594.05 | 7 The Tribunal is not persuaded that the invoices No 33770 and No 33769 sufficiently relate to the attendances of Dr Airey and Mr Peter Airey on 31 August and 3 September 2012. 8 In its letter of 6 December 2012, Airey indicates that invoice No 33770 relates to the work of 'preparing witness statements and CV's in the format required by court'. It is not apparent that this is directly referable to the attendances on 31 August and 3 September 2012because the invoice was dated 20 August 2012, which was before the first day of hearing of this matter. Further, the work described would be work done in connection with the hearing generally, the costs of which have already been dealt with as part of order 2. 9 The position is the same in respect of invoice No 33769. Airey describes this work as 'integral to the hearing' and states that the work involves responding to the opinions produced by the respondent's expert. Again, it does not appear that this is sufficiently referable to the attendances by Dr Airey and Mr Airey on 31 August and 3 September 2012. (Page 5)
10 Invoice No 33822 is more specifically itemised in Airey's letter of 6 December 2012. It appears from Airey's letter of 6 December 2012 that this invoice includes the following items, which the Tribunal considers are sufficiently related to the two attendances, and should be paid by the respondent: Item | Amount ($) | | Mr Peter Airey coordinating further investigation following further reports of cracking, interpreting results, preparing for court and transit to/from expert conferral 31 August 2012 | 350.00 | | Dr Airey's advice to client, transit to/from expert conferral and preparing expert conferral letter as required by SAT | 500.00 | | Dr Airey attending expert conferral 31 August 2012 | 855.00 | | Mr Peter Airey attending expert conferral 31 August 2012 | 1,200.00 | | Dr Airey advising client, preparing for and transit to/from hearing on 31 August 2012 | 500.00 | | Mr Peter Airey advising client, preparing for and transit to/from hearing on 31 August 2012 | 525.00 | | Dr Airey attending Tribunal hearing 3 September 2012 | 1,995.00 | | Mr Peter Airey attending Tribunal hearing 3 September 2012 | 2,800.00 | | 8,725.00 | 872.50 | $9,597.50 | 11 Invoice No 33822 includes a charge of $510 for a further site inspection, $680 for the work of Mr Kelvin Ho, an employee of Airey, in preparing materials on the cracking, and $1,500 for Dr Airey for 'assessing builder's query regarding adhesives'. These charges do not appear to be within the scope of the order of 2 October 2012. They will not be allowed. 12 In addition, it is appropriate to consider the total amount of costs sought by the applicant in light of the size and importance of the claim. During the course of the hearing, evidence was given that the costs associated with applying the adhesive backing was about $22,000. The contract prices for the houses the subject of the proceedings were (Page 6)
$396,375 and $374,982 respectively. The applicant sought costs of $17,594.05 over and above the amount of $6,747.12 already allowed, giving a total of $24,341.17. 13 Section 49 of the BS(CRA) Act gives the Tribunal a broad discretion in relation to the costs of proceedings under the Act. The Tribunal will exercise its discretion so as to further the objectives of the Tribunal of providing an informal, flexible and inexpensive means of resolving disputes. This involves considerations of proportionality between the amount of costs and the nature and magnitude of the dispute. In the present case, the dispute was about relatively small domestic construction contracts. The defect identified by the applicant was not a defect that impinged on the structural integrity of the houses. The contemplated damage was potential cracking to tiling that might have been laid on the concrete slabs. This was not a dispute that warranted a large, apparently multidisciplinary, team of consulting engineers. Apart from the specific reasons for disallowing parts of the claim for costs identified above, the Tribunal considers that the additional costs of $17,594.05claimed by the applicant are not proportionate to the matters in dispute, particularly when considered in light of the amount of $6,747.12 already allowed. In addition to the specific reasons given above, the Tribunal would not, for this reason, have allowed the full amount of costs claimed. The amount of $9,597.50 is, to some extent, proportionate to the matters in dispute. 14 The Tribunal will make an order for payment of a further $9,597.50 pursuant to order 3.
Order 15 For the above reasons the Tribunal orders that: 1. Pursuant to order 3 made on 3 October 2012, the respondent is to pay the applicant a further sum of $9,597.50 for costs incurred in relation to two attendances of Dr Airey and Mr Airey at the Tribunal on 31 August and 3 September 2012. I certify that this and the preceding [15] paragraphs comprise the reasons for decision of the State Administrative Tribunal. ___________________________________ MR S ELLIS, SENIOR SESSIONAL MEMBER (Page 7)
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