Red Roo Homes (WA) Pty Ltd and v Formby
[2005] WASAT 65
•18 APRIL 2005
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: BUILDERS REGISTRATION ACT 1939
CITATION: RED ROO HOMES (WA) PTY LTD and V FORMBY [2005] WASAT 65
MEMBER: MR C RAYMOND (SENIOR MEMBER)
HEARD: ON THE PAPERS
DELIVERED : 18 APRIL 2005
FILE NO/S: VR 186 of 2005
BETWEEN: RED ROO HOMES (WA) PTY LTD
Applicant
AND
V FORMBY
Respondent
Catchwords:
Interim application for stay - Invitation to Building Disputes Tribunal to reconsider reviewable decision
Legislation:
Builders Registration Act 1939 (WA), s 41
State Administrative Tribunal Act 2004 (WA), s 27, s 31
Result:
Application granted
Category: B
Representation:
Counsel:
Applicant: Mr D Pether
Respondent: Ms A Shilkin
Solicitors:
Applicant: Jackson MacDonald
Respondent: Phillips Fox
Case(s) referred to in decision(s):
Nil
Case(s) also cited:
Nil
MR C RAYMOND (SENIOR MEMBER)
REASONS FOR DECISION
Application
This is an interim application for an order staying the operation of an order of the Building Disputes Tribunal made on 8 February 2005.
It is an interlocutory application ancillary to proceedings commenced by application in which the applicants seeks leave to review the Dispute Tribunal's decision, pursuant to s 41(2) of the Builders Registration Act 1939 (WA) and other relief.
Grounds for Review
The grounds for review are as follows.
"Grounds
1.The Building Disputes Tribunal's Order to Pay No. 114/2004‑5 was made:
(a)Without due regard to jurisdiction of the Building Disputes Tribunal to award costs under section 38(4) of the Builders Registration Act 1939.
(b)Without giving the Applicant the opportunity to be heard on the question of costs, in breach of the rules of the natural justice.
(c)In circumstances where the exceptional circumstances under section 38(4) of the Builders Registration Act 1939 for there to be an award of costs are not made out.
2.The Building Disputes Tribunal's order that the applicant may be liable for any diminution in vale of the property be reason that the carport is 240mm less in length than that specified in the original contract has been made:
(a)In circumstances where the Building Disputes Tribunal has found there to be a breach of contract but not specified the nature of the breach which it has found.
(b)The Applicant contends there has been no breach of contract.
(c)The Building Disputes Tribunal does not have jurisdiction in any event to decide contractual disputes.
(d)The Building Disputes Tribunal has found that the building is in accordance with Section 12A of the Builders Registration Act.
(e)The Building Disputes Tribunal has ordered that the Applicant be liable for the diminution in value of the property, in circumstances where the Respondent did not seek such a remedy and the power to grant such remedy is beyond the jurisdiction of the Building Disputes Tribunal."
The Disputes Tribunal's Reasons for Decision
The Disputes Tribunal's decision includes the following discussion under the heading of costs.
"4.0 Costs
4.1The Owner claimed costs. This is basically a no costs jurisdiction as expressed in Section 45A(1) of the Builders Registration Act 1939. However under Section 45A(2)(c)(ii) costs can be awarded if a party cannot conduct the proceedings properly herself. We consider that applies here, especially as the Builder had sought legal assistance. The Owner is an elderly lady and needed help with a large number of complaints.
4.2In considering the expenses claimed we normally allow expenses incurred in obtaining experts to give evidence. Accordingly we would allow the accounts of Airey, Hill & Ryan of $660 and Mr Strange at $594. However we have distinct problems with Mr Wallis's accounts. Initially he was called in as an expert, but after the lawyers took over there was no reason for his continued presence apparently as an advisor. There has been no justification in making the Builder continue to pay for the costs of an advisor, once the expert report has been completed. We would allow the cost of making the report and of giving evidence at the hearings. However the balance of the claim is as a private advisor and is disallowed. We therefore allow $3,843.50 only.
4.3As to the lawyer's costs the Complainant has been awarded the sum of $14,696. That figure allows for costs only on the Local Court scale, but not the full sums which have been claimed. We would be prepared to consider a claim made under the provisions of the Local Court scale, if the parties cannot agree that sum between them.
4.4The Respondent has objected to the Tribunal not giving it an opportunity to argue against the award of costs notwithstanding that it has lost the case. At no stage in the evidence has any aspect been advanced upon which it could rely to somehow absolve itself from paying costs, especially as the Respondent had itself employed lawyers. Nonetheless the Respondent will however be able to argue against the bill put in by the Complainant at the taxation."
It is apparent that the learned Deputy Chairperson and Members of the Disputes Tribunal saw no purpose in acceding to the request to be heard on the question of costs. That view was reached because it was considered that under s 45A(2)(c)(ii) of the BRA "costs can be awarded if a party cannot conduct the proceedings properly," that this was the case in respect of the respondent (in these proceedings) and the applicant (in these proceedings) had been unsuccessful.
Section 45A of the BRA does not deal at all with the question of costs. It is a provision which deals with representation before the Disputes Tribunal, stipulates that, except as provided in the section, a party must present his or her own case and may not be represented by another person. Subsection 2 proceeds to provide that parties may be represented by legal practitioners in a number of circumstances, one of which under (c)(ii) is where the Disputes Tribunal is satisfied that one of the parties is unable to conduct the proceedings properly himself or herself.
It is subsections 38(3) and (4) which deal with the question of costs. Those subsections provide as follows.
"38. Powers of Disputes Tribunal
(1)…
(2)…
(3)Subject to subsection (4), the Disputes Tribunal may make such orders for costs as it thinks fit.
(4)In any proceedings costs are not to be awarded to any party to the proceedings for the services of any legal practitioner or other person representing or assisting in the representation of that party unless, in the opinion of the Disputes Tribunal, it is fair to do so, having regard to‑
(a)whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as‑
(i)failing to comply with an order or direction of the Disputes Tribunal without reasonable excuse;
(ii)failing to comply with this Act or the Home Building Contracts Act 1991;
(iii)asking for an adjournment as a result of subparagraph (i) and (ii);
(iv)causing an adjournment;
(v)attempting to deceive another party or the Disputes Tribunal; or
(vi)vexatiously conducting the proceeding;
(b)whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)the relative strengths of the claims made by each of the parties, including where a party has made a claim that has no tenable basis in fact or law;
(d)the nature and complexity of the proceedings; or
(e)any other matter the Disputes Tribunal considers relevant."
It is the above criteria which the Disputes Tribunal must consider in exercising a discretion whether or not to award costs. It is in relation to those criteria that the applicant in this Tribunal must have wished to make submissions.
The Nature of the Review
In this Tribunal, by virtue of s 27 of the SAT Act, the review of a reviewable decision is by way of a hearing de novo. The obligation of this Tribunal is to produce the correct and preferable decision at the time of the decision upon the review.
Under s 31 of the SAT Act, the Tribunal may at any stage of the proceeding for the review invite the decision maker to reconsider the decision. This, in my view, for reasons set out below, is an appropriate course to follow in this matter.
By virtue of subsection 31(2) of the SAT Act upon being invited to reconsider the reviewable decision, the decision maker may either affirm, vary or set aside the decision and substitute a new decision. If the decision is varied or set aside subsection 3 provides that unless the proceeding for review is withdrawn it is taken to be for the review of the decision as varied or the substituted decision.
I have expressed no view as to the consequences of the Disputes Tribunal's reliance upon the wrong section of the BRA and its decision not to provide the applicant (in these proceedings) with an opportunity to make submissions on the question of costs, in case the Disputes Tribunal should affirm the decision.
But, if the Disputes Tribunal either various the decision, or sets it aside and substitutes a new decision, it is in a much better position to do so, without delay to the parties and without the parties having to incur the costs of the review proceeding in order to obtain that possible result.
Related Proceedings
During the hearing of the interim application I was advised that there were related proceedings in the nature of a cross appeal. The respondent in this application, I was informed, had lodged an application to SAT under file number VR 207/05 seeking an order that part of a further order made by the Disputes Tribunal on the same date be set aside.
While I have not considered the merits of this further application, it is obviously sensible that the invitation to the Disputes Tribunal be extended to allow it to reconsider all of the orders made by it, so that both before the Disputes Tribunal and in this Tribunal the whole of the matters in issue between the parties can be considered.
The parties consented to orders being made as follows.
Order
1.The Order to Pay made by the Building Disputes Tribunal dated 8 February 2005 and the further orders of the same date relating to any claim for diminution of value be stayed, by consent, pending final determination of this application.
2.The Building Disputes Tribunal is invited to reconsider its decision and for that purpose the applicant shall serve on the Building Disputes Tribunal:
(a)a copy of the applications VR 186 and VR 207 of 2005;
(b)a copy of this order and the Reasons for Decision to be forwarded by the Tribunal;
such service to be effected forthwith upon receipt of this order and the said Reasons for Decision.
3.The matter otherwise be adjourned sine die but to be relisted in due course together with matter VR 207 of 2005;
4.The hearings of matters VR 186 and VR 207 of 2005 on 19 and 21 April 2005 are vacated;
5.There be liberty to apply.
I certify that this and the preceding seven pages comprise the reasons for decision of the State Administrative Tribunal.
____________________________
Mr C Raymond
Senior Member
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