OLYMPIC HOLDINGS PTY LTD and BEGLEY - [2009] WASAT 30

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: BUILDERS' REGISTRATION ACT 1939 (WA)

CITATION: OLYMPIC HOLDINGS PTY LTD and BEGLEY [2009] WASAT 30

MEMBER: MR T CAREY (MEMBER)

HEARD: 3 FEBRUARY 2008
PARTIES' WRITTEN SUBMISSIONS FILED 4 FEBRUARY 2008

DELIVERED : 23 FEBRUARY 2009

FILE NO/S: CC 1737 of 2008

BETWEEN: OLYMPIC HOLDINGS PTY LTD
PETER BACICH
Applicants
AND
PATRICK BEGLEY
FRANCINE BEGLEY
Respondents

Catchwords:

Building disputes - Respondents successful in opposing application for leave to review - Application for costs - Principles for award of costs

Legislation:

Builders' Registration Act 1939 (WA)
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)
State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2)

Result:

Respondents' application for costs upheld

Category: B

Representation:

Counsel:

Applicants: Mr M de Kerloy
Respondents : Mr R Shaw

Solicitors:

Applicants: Mony De Kerloy
Respondents : Lavan Legal

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

Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135
Lai and Costa [2006] WASAT 117
Pearce & Anor and Germain [2007] WASAT 291 (S)
Perth Central Holdings and Doric Constructions [2008] WASAT 302

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondents successfully opposed the applicants' application for leave to review a decision of the Building Disputes Tribunal requiring them to perform a variety of building works to the respondents' residence. They consequently sought their costs of the application in a particular amount. The applicants opposed the making of any costs order.
The Tribunal considered the principles applying to the making of costs orders, both generally and in the context of building disputes. Based on those principles, it determined that the nature of the dispute and the lack of merit of the claims advanced by the applicants combined to make this an appropriate occasion for a costs order.

Relevant Background

On 3 March 2009, the State Administrative Tribunal (SAT or the Tribunal) refused the applicants leave to review a decision of the Building Disputes Tribunal (BDT) reflected in Order to Remedy No 105/2008‑09 and dismissed their application (SAT decision). The reasons for the SAT decision were delivered orally by me at the conclusion of the hearing on 3 February 2009. Following the delivery of the reasons and pronouncement of orders, the respondents sought an order for costs in the sum of $2,400.
The respondents made short oral submissions in support of their costs application. The applicants indicated that, although the amount of $2,400 was not the subject of challenge, this was not a matter where it was appropriate for any costs order to be made. The parties were permitted leave to file any written submissions on the costs question by 6 February 2009, and each party has filed short written submissions.
I will refer in broad terms to the respondents' complaint before the BDT, the BDT's decision insofar as it related to matters the subject of the leave application in SAT, the leave application and the reasons for its refusal. I will then provide a summary of the…

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 30
Decision Date: 23 FEBRUARY 2009

CaseChat Overview and Summary

In the Supreme Court of New South Wales, the case between Olympic Holdings Pty Ltd and Begley concerned a building dispute. The applicants sought leave to review an earlier decision, and the respondents opposed this application. The court was tasked with determining the applicants' request for leave to review, as well as the appropriate costs for the application. The central issue was whether the applicants had a reasonable prospect of success in the review, and if not, whether the application should be dismissed with costs awarded to the respondents.

The court considered the principles for awarding costs in such circumstances, focusing on the merits of the application and the conduct of the parties. It found that the applicants' prospects of success were poor, as the grounds for review were not compelling. Consequently, the application for leave to review was dismissed. The court also examined the appropriate amount of costs to be awarded to the respondents, taking into account the nature of the application and the conduct of the parties. The court determined that the costs should be modest, reflecting the relatively minor nature of the application and the respondents' need to defend against an unmeritorious challenge.

Ultimately, the Supreme Court ordered that the applicants pay the respondents' costs of the application, fixed at $2,400. The court emphasised that the costs should be reasonable and not punitive, considering the overall circumstances of the case. The decision underscores the importance of carefully assessing the merits of an application for leave to review and the potential implications for costs when such applications are brought without a strong likelihood of success.

Orders

Orders of the court

The applicants shall, within 28 days of the date of this order, pay the respondents' costs of the application fixed at $2,400.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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