RADFORD and THE OWNERS OF MIAMI APARTMENTS STRATA PLAN 45236 - [2007] WASAT 51

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: STRATA TITLES ACT 1985 (WA)

CITATION: RADFORD and THE OWNERS OF MIAMI APARTMENTS STRATA PLAN 45236 [2007] WASAT 51

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: DETERMINED ON THE PAPERS

DELIVERED : 22 FEBRUARY 2007

FILE NO/S: CC 446 of 2006

BETWEEN: KEVIN WILLIAM AND CORAL OLIVE RADFORD
Applicants
AND
THE OWNERS OF MIAMI APARTMENTS STRATA PLAN 45236
Respondent

Catchwords:

Strata titles Award of costs by the Tribunal Cost for time unnecessarily spent when application amended

Legislation:

Interpretation Act 1984 (WA), s 18
State Administrative Tribunal Act 2004 (WA), s 5, s 9, s 87(1), s 87(3),
Strata Titles Act 1985 (WA), s 81(7), s 81(7)(a), s 83(1), s 83(4), s 83(6), s 92(2)(a), s 93(2)(b), s 97

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicants: Mr R Kronberger
Respondent: Mr JF Park

Solicitors:

Applicants: Atkinson and Associates
Respondent: Park Legal Solutions

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

Jamieson and The Owners of 163 Scarborough Beach Road ‑ Strata Plan 6660 [2006] WASAT 234
Radford and The Owners of Miami Apartments Strata Plan 45236 [2006] WASAT 293

REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The respondent sought an order for costs for time unnecessarily spent due to an amendment by the applicants of the original application. Section 81(7)(a) of the Strata Titles Act 1985 (WA) empowers the Tribunal to award cost if it is of the view that time had been unnecessarily spent due to an amendment to an application.
The respondent contended that the applicants were represented, that their application was faulty from the start and that time was unnecessarily wasted due to the amendments that had to be made to the original application. The respondent also contended that the discretion of the Tribunal is not limited to costs incurred prior to the amendments but to time unnecessarily spent at any stage of the proceeding.
The applicants contended that the Tribunal is in essence an own‑cost jurisdiction, that they succeeded in part with their application, that the amendment was made early in the proceedings and that the Tribunal's discretion is limited to costs incurred prior to the amendment of the application.
The Tribunal dismissed the application.

Background

The respondent filed an application for costs following an amendment to the original application by the applicants. Section 81(7)(a) of the Strata Titles Act 1985 (WA) (ST Act) allows for a claim for payment of costs to be lodged for time unnecessarily spent in connection with the amendment of an application in strata title matters.
The events leading to the amended application are usefully summarised in paragraphs 1 to 11 of the respondent's submissions for costs dated 11 January 2007. There is no need for the Tribunal to repeat it.
Suffice to note that the original application was brought under s 83(1) ST Act and, following the amendment, s 97, s 92(2)(a) and s 93(2)(b) ST Act were added.
At the first directions hearing held on 30 March 2006, the respondent raised concern that the application could not survive under s 83(1) of the ST Act due to the working of s 83(4) ST Act.
The Tribunal allowed the parties time to attempt to discuss the preliminary point and if necessary to make submissions thereon for the Tribunal to make a determination.
The applicants hence sought leave in June 2006 to amend the application and after leave was granted, they added to s 83(1) ST Act several other sections of the ST Act.
The Tribunal handed down its decision on 25 September 2006 in Radford and The Owners of Miami Apartments Strata Plan 45236 [2006] WASAT 293.
The respondent, who was largely successful in its opposition to the application, is now seeking an award for costs for time unnecessarily spent due to the amendment of the original application.

Submissions by the parties

Mr Park, who appeared for the responded, in summary contended as follows:
a)In these proceedings both parties were represented and it can be expected of counsel to take the necessary care in filing an application under the appropriate section of the ST Act. In instances where members of the public are self‑represented the Tribunal can allow more flexibility for an application to be amended, but in this case the applicants were represented by Mr Kronberger who is recognised as an expert in strata matters. The time wasted due to the reliance on an incorrect section of the Act should give rise to an order for costs.
b)He takes issue with the obiter dicta of Senior Member Raymond in Jamieson and The Owners of 163 Scarborough Beach Road ‑ Strata Plan 6660 [2006] WASAT 234 at par 45 that s 81(7) ST Act "contemplates compensating persons who have spent time unnecessarily on the application prior to the amendments" (Tribunal emphasis). According to Mr Park the legislature could have added the words "prior to the amendment" if it had chosen to, but in the absence of such wording, the sub‑section must be read that any time wasted as a result of an amendment may give rise to an award of costs. The preferred interpretation of s 81(7) ST Act is therefore that it applies not only to costs incurred prior to an amendment, but to costs at any time during the proceeding.
c)The part of the amended application in which the applicants relied on s 83(1) ST Act, failed. Although the respondent at the first directions hearing drew the attention of the applicants to the effect of s 83(4) and s 83(6) ST Act on the availability of s 83(1) ST Act as remedy for the setting aside of a by‑law, they persisted to continue with an application under what turned out to be an irrelevant section. The argument was therefore flawed from the beginning.
d)The respondent's costs for the various parts of the proceedings were set out for consideration of the Tribunal.
Mr Kronberger, who appeared for the applicants, in summary contended as follows:
a)SAT is essentially a no‑cost jurisdiction. The power of the Tribunal to award cost is curtailed under s 81(7) ST Act to time spent unnecessarily in connection with an amended application.
b)The obiter dictum of Senior Member Raymond in Jamieson and The Owners of 163 Scarborough Beach Road ‑ Strata Plan 6660 should be followed, namely that only those costs that may have been incurred unnecessarily prior to the amendment, may be the subject of an order.
c)The original application was in substance the same as the amended application and relied on the same facts and circumstances that had given rise to the dispute.
d)The applicants should not be penalised for having amended the application. They could have lodged a separate application or in the alternative withdrawn the application and lodged a fresh one on the same terms as the amended application.
e)The application under s 83(1) ST Act was not dismissed in its entirety by the Tribunal.
f)Several issues were raised in regard to the statement of account filed by Mr Park.

Consideration

It is generally accepted that great care should be exercised by the Tribunal in awarding costs so as to ensure that the Tribunal remains readily accessible to the public at a relatively low cost.
The discretion of the Tribunal to award costs is set out in the State Administrative Tribunal Act 2004 (WA) (SAT Act) and the enabling Act, the ST Act. If there is an inconsistency between the SAT Act and the ST Act, the enabling Act prevails (s 5 SAT Act).
The point of departure to consider an application for costs under the SAT Act is that parties bear their own costs (s 87(1) SAT Act). The SAT Act however anticipates that in some instances costs may be awarded. Refer for example to the provisions of s 87(3) SAT Act. Since its establishment the Tribunal has, albeit rarely, awarded costs. The Tribunal has pointed out in several decisions that it is in essence an own cost jurisdiction.
The ST Act provides an even narrower ground for an award for costs than the SAT Act. Section 81(7) ST Act provides that:
"The State Administrative Tribunal cannot make an order for the payment of costs in connection with an application for an order except ‑
(a)when allowing an applicant to amend an application, to compensate persons for time unnecessarily spent in connection with the application ..."
The ultimate discretion if costs should be awarded is that of the Tribunal. The mere fact that an application has been amended does not automatically give rise to a cost order. The test remains whether time has been unnecessarily spent as a result of the amendment.
As pointed out by the parties, the Strata Titles Referee did not have the power to award costs prior to the establishment of SAT. While the Tribunal now has such power, it is a limited one and it caters for a situation where in the view of the Tribunal unnecessary costs were been incurred due to an amendment to an application.
The Tribunal often gives leave in strata title disputes for applications to be amended. This is particularly the case with unrepresented parties, but it also happens with represented parties. Section 83(1) ST Act is often a catch‑all section under which applications are brought to the Tribunal but then amended at the directions hearing to a more applicable section.
The answer to the question whether time was unnecessarily spent due to an amendment, depends on the stage of the proceedings at which the amendment is sought. If the amendment is made at the initial directions hearing, the time wasted is for obvious reasons less than if the trial had begun.
It is apparent that the later in the proceedings an amendment is made, the greater the risk of time unnecessarily spent on the original application.
A possible award for costs is particularly relevant where substantial preparation had gone into a response to the original application, which is then amended in a way that renders the work done worthless.
Mr Park contends that it is not only costs that were wasted prior to an amendment of an application that can be claimed, but also cost arising as a result of an amendment. In the Jamieson matter Senior Member Raymond emphasised in passing that the ST Act allows the Tribunal to compensate persons who spent unnecessary time "prior to the amendments". Mr Park takes issue with this observation since, according to him, Parliament could have added words to that effect if it had intended it. In the absence of such qualifying words, the sub‑section must, according to Mr Park, be given a meaning that promotes its purpose (s 18 Interpretation Act 1984 (WA)).
The Tribunal does not accept this contention of Mr Park. The reference to "time unnecessarily spent" must be read in conjunction with the leave granted by the Tribunal for an application to be amended. The time spent after the amendment cannot be regarded as time "unnecessarily spent" since the amended application contains the issue/s to be tried. The time spent thereon is therefore essential for purposes of the trial. It is only the time that was unnecessarily spent before the amendment that can be considered for purposes of a cost order.
The Tribunal accepts that in the current proceedings some time was spent by the respondent in preparing its submissions in response to the original application. However, it must also be noted that when Mr Park raised the preliminary point at the first directions hearing, the Tribunal immediately encouraged the parties not only to discuss Mr Park's concern, but also to use the opportunity to attempt to settle the dispute through mediation. The Tribunal also suggested to the parties that they utilise the time to reduce issues if possible. The actual time unnecessarily spent was, as far as the Tribunal is concerned, minimal.
It must also be noted that although the application was amended to include additional sections of the ST Act, part of the proceedings nevertheless continued in pursuance of s 83(1) ST Act refer to the dispute regarding the parking area and approvals for the bring about of roof alterations. The reliance to s 83(1) ST Act for at least part of the application, was therefore not entirely unfounded.
The Tribunal must also, before it comes to a decision that time was unnecessarily spend, pose the question what alternatives were available to the applicants other than to amend the application? One alternative was for the applicants to have lodged a new application under different sections of the ST Act. Another option was to withdraw the existing application and to re‑lodge it under all the other relevant sections. Both these options might not have attracted the cost order option under s 81(7) ST Act, but would have wasted time and resources.
Section 9 of the SAT Act obliges the Tribunal to deal with matters in its jurisdiction fairly and according to the substantial merits, with as little formality as possible and to minimise costs for the parties. The most sensible way to have dealt with the original application and the amendments thereto was by allowing Mr Kronberger to amend the application. The substantial Statements of Issues, Facts and Contentions then followed. The fact that the Tribunal preferred the position of the respondent in regard to the interpretation of s 83(1) and s 83(4) ST Act, does not mean time was unnecessarily spent.

Finding

The Tribunal does not accept the contention by Mr Park that substantial time was unnecessarily spent due to the amendment of the application. Although the original application should ideally have had reference to all the relevant sections, the time "unnecessarily spent" was minimal.
The potential shortcoming was identified at the first directions hearing, the proceedings were adjourned and parties were afforded opportunity to address the shortcoming and to engage in mediation.
The proceedings were brought in good faith, not vexatious and there were genuine issues to be determined.
The Tribunal therefore finds no justification for an order for costs pursuant to s 81(7)(a) ST Act.
All the options for calculating costs put forward by Mr Park should consequently be dismissed.

Orders

1.The application for costs is dismissed.

I certify that this and the preceding [35] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
DR B DE VILLIERS, MEMBER