NG and PETER STANNARD HOMES PTY LTD
[2009] WASAT 50
•23 MARCH 2009
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 accordance with s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). However, there is a broad discretion to award costs, as provided for under s 87(2) of the SAT Act, that in the appropriate case costs may be awarded.
A discussion of the Tribunal's discretion can be found in Pearce and Germain [2007] WASAT 291 (S) (Pearce).
In Pearce, his Honour, the then Judge Chaney, set out the following principles for the consideration of costs applications by the Tribunal:
i)The starting point of the Tribunal is that it is a 'no cost' jurisdiction ([8]).
ii)The cost regime that was applicable to the previous Commercial Tribunal does not apply to the State Administrative Tribunal ([11]).
iii)The objectives of the State Administrative Tribunal are furthered by its being essentially a 'no cost' jurisdiction ([17]).
iv)Where there is a genuine dispute and the respective rights are unclear and parties seek a determination, the 'starting point remains that each party should expect to pay their own costs' ([24]).
v)The Tribunal does have the power to award costs, and it is not appropriate to 'delineate the particular circumstances' in which the discretion to award costs would be exercised favourably ([22]).
vi)Some of the factors (not an exhaustive list) that may contribute to the Tribunal making a cost order are, for example
a.A party has conducted itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party.
b.A party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party.
c.Where credibility of evidence is at the heart of a matter.
d.Where the application undermine the integrity of proceedings under the relevant Act.
e.The relative weakness of a case, it being incredible or implausible or 'obviously unmeritorious'.
f.If a party has to embark in proceedings to 'vindicate its clear contractual entitlements'. ([22] - [24])
Applying the principles to the facts of this case
This matter involved an application for leave to review several decisions of the BDT delivered 1 May 2008 and 21 November 2008, respectively. The applicant's complaint to the BDT concerned workmanship and contractual issues. These included a claim for loss of rental income due to a contract overrun, a claim that the respondent had painted the front timber rails in a variety of cupboards white, instead of staining the timber, and, finally, a claim that there had been overcharging for site works. The applicant's complaint was dismissed by the BDT and, as a result, the applicant sought leave to review the BDT's decisions. Upon the application for leave, each ground was dismissed. I will not repeat the reasons for doing so as they were set out in the transcript of the oral reasons delivered on 22 December 2008. A copy of the transcript of those reasons has been provided to each party.
During these proceedings the applicant was represented by her father, Mr Ng.
The respondent was legally represented.
Proceedings in this Tribunal were the subject of three directions hearings followed by two days of hearings. The hearings took place on 26 November 2008 and on 12 December 2008.
Although not legally represented, the applicant filed substantial documentation in respect to the application. This included grounds with many subheadings. The original application was then further amended by the applicant. At the directions hearing on 16 October 2008, Mr Ng sought leave to withdraw part of the application concerning an issue of a claim for interest for alleged consequential loss. Despite being granted leave to withdraw, during the conduct of proceedings Mr Ng on more than one occasion sought to re-open this issue despite having withdrawn it.
The applicant also filed extensive written submissions in respect to the application which were subsequently amended on more than one occasion. The content of the written submissions filed by the applicant were difficult to understand in order to ascertain the true nature of the applicant's concerns in respect to the BDT's decision. In addition, there were attempts by the applicant during the conduct of this matter to seek to introduce an array of evidence, including a type that could be categorised as expert, that was not placed before the BDT. Further, the applicant also sought to raise new issues that had not been put before the BDT.
I consider that in such circumstances an unrepresented person would have faced great difficulty in defending such an application. Despite the applicant not being legally represented, it was entirely appropriate for the respondent to have obtained legal representation in this matter.
As a result, I consider it is appropriate to exercise my discretion and make an award of costs against the applicant.
Assessment of costs
The respondent has provided a Bill of Costs by reference to the WA Supreme Court scale of costs.
There is no prescribed scale in relation to the conduct of proceedings before this Tribunal.
Assessing costs, for the purposes of s 87 of the SAT Act, will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, urgency, and the amount of time and effort required to properly prepare and present the case.
In J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S); (2006) 45 SR (WA) 242 the Tribunal stated at [9] as follows:
There is no prescribed scale in relation to work done in relation to proceedings before this Tribunal. Assessing costs for the purposes of s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) will usually require a determination as to what costs are reasonable given the nature of the matter, its complexity, its importance, possibly its urgency, and the amount of time and effort required to properly prepare and present the case. Consideration of issues of that nature may be assisted by analogy with other legal work for which a statutory scale is applicable. Scales are, however, no more than an indication of what might be thought reasonable for certain categories of work. If a scale is to be used for that purpose, it will not always be the scale applicable to Supreme Court proceedings. There will be cases where the subject matter will make the determination in relation to Magistrates Court civil proceedings more appropriate by way of analogy. The Tribunal will always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings.
In the recent matter of JCorp, Senior Member Raymond drew some guidance from the scale of costs known as the District Court Appeal Scale. In the past, this Tribunal has also had reference to the WA Supreme Court Scale of Costs.
Without being bound by either scale, and in light of the need to maintain proportionality, I assess the respondent's costs as follows:
| Category of costs | Rate & number of hours | Amount |
| 1) 2 directions hearings @ $150 each | $300.00 | |
| 2) Drafting submissions in opposition and affidavits in opposition and getting up for hearing | 5 hours senior practitioner @ $360 | $1,800.00 |
| 3) Attendance at hearing of application for leave to review 26 November 2008 and 12 December 2008 | Approx 7 hours senior practitioner @ $360 | $2,520.00 |
| Total | $4,620.00 |
For the above reasons the respondent's application for costs is successful and I will order costs as assessed above.
Orders
1.The applicant shall pay to the respondent costs of $4,620.
I certify that this and the preceding [27] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MS J HAWKINS, MEMBER
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