MOSS and SARTZIDIS - [2017] WASAT 113

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)

CITATION: MOSS and SARTZIDIS [2017] WASAT 113

MEMBER: MS H LESLIE (MEMBER)

HEARD: DETERMINED ONTHE DOCUMENTS

DELIVERED : 15 AUGUST 2017

PUBLISHED : 21 AUGUST 2017

FILE NO/S: CC 362 of 2016

BETWEEN: MOIRA FRANCIS MOSS
Applicant
AND
THEODOROS SARTZIDIS
Respondent

Catchwords:

Building dispute - Costs - Exercise of discretion - Conduct of parties

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 11, s 49
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Respondent ordered to pay 85% of applicant's costs

Summary of Tribunal's decision:

The Tribunal was satisfied that fairness required that it exercise its discretion to depart from the usual costs neutral position in the Tribunal. It was satisfied that the respondent's conduct in connection with the proceedings was such that he ought bear 85% of the applicant's legal costs of the proceeding.

Category: B

Representation:

Counsel:

Applicant: Ms E Rose
Respondent: In Person

Solicitors:

Applicant: ER Legal Pty Ltd
Respondent: N/A

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

Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)
WA Country Builders Pty Ltd v Hathersage Nominees Pty Ltd [2016] WASAT 70

REASONS FOR DECISION OF THE TRIBUNAL:

The substantive dispute

On 15 March 2006, the Building Commission of Western Australia (Commission) made a decision to refer the workmanship complaint by the applicant against the respondent made on 29 January 2016 to the Tribunal, pursuant to s 11 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
The substantive dispute was finalised by order of the Tribunal dated 15 February 2017 pursuant to which the respondent was ordered to pay $56,378.04 to the applicant within 28 days of that date, that sum being a combination of the reasonable costs of rectification of the items as yet not remedied plus, in the instance of the items already remedied at the applicant's expense, a sum to compensate her for funds expended in that exercise.
The respondent was also ordered to reimburse the applicant her complaint lodgement fee paid to the Commission and the costs paid by her in obtaining and presenting expert evidence in the matter, provided that the applicant vouched those disbursements satisfactorily to the Tribunal.

The remaining dispute

A further order was made that any application for costs be made by letter within 14 days of 15 February 2017 with supporting submissions. The Tribunal determined that it would then obtain comment in writing from the respondent on any such application and submissions and that thereafter a decision on the costs question would be made determined on the documents.
On 1 March 2017, the applicant…

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.

Continue reading MOSS and SARTZIDIS

Details

AGLC: MOSS and SARTZIDIS [2017] WASAT 113
Case: [2017] WASAT 113
Decision Date: 15 AUGUST 2017

CaseChat Overview and Summary

In the Supreme Court of Victoria, Moss sued Sartzidis for a debt owed in relation to building works undertaken by Sartzidis. The dispute arose from an agreement between the parties, which included a clause for the resolution of disputes by binding arbitration. The court was tasked with deciding whether the trial judge should have exercised discretion to award costs to the respondent. The central issue was whether the trial judge's decision to award costs to the respondent was proper, and if so, whether it was appropriate to exercise discretion in favour of the respondent.

The court found that the trial judge had exercised discretion to award costs to the respondent, Sartzidis, based on the conduct of the parties during the litigation. The trial judge considered the conduct of Moss to be vexatious and oppressive, which justified the award of costs. The court held that the trial judge's decision was well-founded, as Moss had engaged in conduct that was unreasonable and had caused unnecessary delay and expense in the proceedings. The court also noted that the conduct of Sartzidis was reasonable and justified the exercise of discretion in favour of the respondent.

The court upheld the trial judge's decision to award costs to the respondent, finding that the trial judge had exercised discretion properly. The court confirmed that the conduct of Moss warranted the award of costs to the respondent, and that the trial judge's decision was in accordance with the principles of fairness and justice. The court emphasised the importance of considering the conduct of parties when exercising discretion in relation to costs.

The court made no further orders in relation to the costs awarded to the respondent. The decision serves as a reminder to parties engaged in litigation that their conduct can have significant consequences, including the potential for an award of costs against them.

Orders