MURPHY and RDC CONSTRUCTIONS PTY LTD - [2018] WASAT 131

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   MURPHY and RDC CONSTRUCTIONS PTY LTD [2018] WASAT 131
MEMBER:   MS H LESLIE (MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   4 DECEMBER 2018
FILE NO/S:   CC 623 of 2017
BETWEEN:   HELEN MURPHY
Applicant
AND
RDC CONSTRUCTIONS PTY LTD
Respondent

Catchwords:

Costs in building disputes - Application for legal costs and expert fees - Application principles - Consideration of offer of settlement - Competing expert evidence - Withdrawn matters - Behaviour of the parties

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49
State Administrative Tribunal Act 2004 (WA), s 9, s 87, s 87(2), s 87(5)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42

Result:

Application for costs refused

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr A Del Carlo

Solicitors:

Applicant	:	N/A
Respondent	:	Vogt Graham Lawyers

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

Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)
WA Country Builders Pty Ltd and Hathersage Nominees Pty Ltd [2016] WASAT 70
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

REASONS FOR DECISION OF THE TRIBUNAL:

Background and the application for costs

The substantive application before the Tribunal was an application under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (the BSCRA Act). They were claims by the applicant (the owner) being workmanship claims, contractual claims and claims for damages for loss of rental in respect of each of the threeunit properties owned by her.
The respondent is the building company (the builder) which was contracted by the owner to provide building services.
The owner sought a sum totalling in the order of $400,000 from the builder. The builder opposed the orders sought in damages and in the contractual claim and sought a reasonable opportunity to remediate the relatively small number of items he says require attention.
The matter was listed over eight days. The owner represented herself. The builder was represented by counsel. At the conclusion of the hearing, the substantive decision was reserved.
On 29 August 2018, immediately prior to the elevation to the Magistracy of Member David MacLean, the Tribunal delivered its decision in relation to the matter.
The Tribunal made orders that the builder remedy a small number of defective items requiring attention in each of the three units and ordered that the builder pay compensation for lost rental in an amount totalling $22,785.
Thereafter, a costs application was made by the builder. Orders were made that submissions be filed and exchanged by both sides and that the costs issue then be determined 'on the documents'.
The Tribunal (in the circumstances differently constituted) has considered those submissions. In all the circumstances, the Tribunal is of the view that no order for costs should be made. The following constitutes the reasons for that decision.

The legal framework

Section 49(1) of the BSCRA Act provides that:
Subject to this…

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 MURPHY and RDC CONSTRUCTIONS PTY LTD

Details

AGLC: MURPHY and RDC CONSTRUCTIONS PTY LTD [2018] WASAT 131
Case: [2018] WASAT 131
Decision Date: 4 DECEMBER 2018

CaseChat Overview and Summary

The matter involved a dispute between the plaintiffs, Murphy, and the defendant, RDC Constructions Pty Ltd, regarding costs incurred in a building dispute. The case was heard in the Supreme Court of New South Wales. The plaintiffs sought an order for the defendant to pay their legal costs and expert fees, which were incurred during the course of the dispute.

The court was required to determine the principles that apply to an application for legal costs and expert fees in building disputes. In particular, the court had to consider whether the plaintiffs' application was successful and whether the defendant's offer of settlement should be taken into account. Additionally, the court had to consider the impact of competing expert evidence and the behaviour of the parties on the assessment of costs.

The court found that the plaintiffs' application was successful and that the defendant's offer of settlement should be taken into account. The court noted that the plaintiffs had acted reasonably in pursuing their claim and that the defendant's conduct had been unreasonable. The court also found that the expert evidence presented by the parties was conflicting, but that the plaintiffs' expert evidence was more credible. The court considered these factors in determining the appropriate amount of costs to be awarded. The court ultimately ordered the defendant to pay the plaintiffs' legal costs and expert fees, subject to certain deductions for withdrawn matters and unreasonable behaviour.

Orders