NG and PETER STANNARD HOMES PTY LTD - [2009] WASAT 50

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: NG and PETER STANNARD HOMES PTY LTD [2009] WASAT 50

MEMBER: MS J HAWKINS (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 23 MARCH 2009

FILE NO/S: CC 995 of 2008

BETWEEN: MAY CHEN NG
Applicant
AND
PETER STANNARD HOMES PTY LTD
Respondent

Catchwords:

Application for costs following dismissal of application for leave to review a decision of the BDT - Determined on documents - Discretion to award costs exercised - Costs awarded to respondent

Legislation:

Builders' Registration Act 1939 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Application for costs successful

Category: B

Representation:

Counsel:

Applicant: N/A
Respondent: N/A

Solicitors:

Applicant: N/A
Respondent: N/A

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

J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242
JCorp Pty Ltd and Chudy [2008] WASAT 79
Lai and Costa [2006] WASAT 117 (S)
Olympic Holdings Pty Ltd and Begley [2009] WASAT 30
Pearce and Germain [2007] WASAT 291 (S)
Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent successfully opposed the applicant's application for leave to review a decision of the Building Disputes Tribunal. The respondent subsequently sought costs. The application for costs was opposed.
The matter was determined on the documents.
The Tribunal considered the principles that apply in respect to an award of costs.
The Tribunal found that due to the manner in which the application had been conducted, the number of issues raised, the extent of documentation filed by the applicant, it was appropriate to exercise its discretion and award costs to the respondent.
The respondent had sought costs in the sum of $12,885.70.
The Tribunal assessed the respondent's costs in this matter at $4,770.00 and ordered that the applicant pay the respondent costs in the sum of $4,770.00.

The application for costs

On 22 December 2008, the Tribunal delivered oral reasons for decision refusing the applicant's (owner's) application for leave to review a decision of the Building Disputes Tribunal (BDT). The respondent (the builder) has applied for the costs of opposing the application for leave in an amount of $12,885.70
The parties have filed written submissions in support and in opposition to the application, respectively.

Cost in the Tribunal - the general principles

In Lai and Costa [2006] WASAT 117 (S), Rainbow Pty Ltd and Hawkins [2007] WASAT 216 (S), JCorp Pty Ltd and Chudy [2008] WASAT 79 (JCorp) and Olympic Holdings Pty Ltd and Begley [2009] WASAT 30, the Tribunal set out the factors relevant to the consideration of whether or not to award costs in relation to proceedings for the review of a decision of the BDT under the Builders' Registration Act 1939 (WA).
The starting point in relation to an application for costs in this Tribunal is that each party should bear their own costs in…

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: [2009] WASAT 50
Decision Date: 23 MARCH 2009

CaseChat Overview and Summary

NG was the plaintiff in a proceeding against Peter Stannard Homes Pty Ltd, which was dismissed. NG sought leave to review the dismissal decision by the Building and Construction Industry Security of Payment Board (BDT). This application was also dismissed, leading to NG's application for costs incurred during the unsuccessful review application. The court was required to determine whether the discretion to award costs should be exercised in favour of the respondent, Peter Stannard Homes Pty Ltd, and if so, the quantum of such costs.

The court considered the principles applicable to the award of costs in proceedings for judicial review, including the general rule that the unsuccessful party must pay the costs of the successful party. The court also considered whether the application was frivolous, vexatious or an abuse of process. The court found that while the application was not frivolous, it did not succeed in establishing grounds for leave to review the dismissal of the original proceeding. The court was also satisfied that the application was not vexatious or an abuse of process, but it was not sufficiently meritorious to avoid the imposition of costs on the applicant.

In light of the above, the court exercised its discretion to award costs to Peter Stannard Homes Pty Ltd, the respondent. The court assessed the costs incurred by the respondent in responding to the application for leave to review and determined that the amount of $4,770 was appropriate. The court found that this sum reflected the reasonable and necessary costs incurred by the respondent in dealing with the unsuccessful application. The court noted that the applicant's application, while not entirely without merit, did not warrant an award of costs to the applicant. Therefore, the court ordered that NG pay the respondent's costs of $4,770.

Orders

Orders of the court

1. The applicant shall pay to the respondent costs of $4,770.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

MS J

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Ratio Decidendi

Legal Principle Established

Established by: MS J

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