MOFTAH and APG HOMES PTY LTD - [2013] WASAT 23

MOFTAH and APG HOMES PTY LTD [2013] WASAT 23

Last Update: 14/02/2013

MOFTAH and APG HOMES PTY LTD [2013] WASAT 23
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2013] WASAT 23
Act:	BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:	CC:956/2012	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR S ELLIS (SENIOR SESSIONAL MEMBER)	Delivered:	12/02/2013
No of Pages:	7	Judgment Part:	1 of 1
Result:	Payment ordered
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	MAGUED MOFTAH APG HOMES PTY LTD
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
Case References:	Nil
Orders:	On the application determined on the documents by Senior Sessional Member Scott Ellis, it is on 12 February 2013 ordered 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.
Summary:	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.

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…

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: [2013] WASAT 23
Decision Date

CaseChat Overview and Summary

In the matter of Moftah and APG Homes Pty Ltd, the applicant, Mr Magued Moftah, sought a determination of costs incurred by him in relation to proceedings under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The application related to the attendance of Dr Airey and Mr Peter Airey at the Tribunal on 31 August and 3 September 2012. The applicant sought $17,594.05 in additional costs over and above the amount previously allowed. The Tribunal, presided over by Senior Sessional Member Scott Ellis, allowed the applicant to seek a further order regarding the costs. However, the Tribunal was concerned that the costs claimed were disproportionate to the nature and magnitude of the dispute. The Tribunal disallowed certain items claimed, such as the preparation of witness statements and CV's, as they were not directly related to the attendances on 31 August and 3 September 2012. The Tribunal allowed costs of $9,597.50, finding that this amount was proportionate to the matters in dispute.

The court's reasoning was based on the proportionality of costs to the nature and magnitude of the dispute, as well as the specific reasons for disallowing certain items claimed. The court considered that the additional costs claimed by the applicant were not proportionate to the matters in dispute, particularly when compared to the amount of $6,747.12 already allowed. The court found that the amount of $9,597.50 was, to some extent, proportionate to the matters in dispute. The court made an order for payment of a further $9,597.50 pursuant to order 3.

Orders