REPACHOLI and CITY OF BUNBURY
[2015] WASAT 94
•28 AUGUST 2015
REPACHOLI and CITY OF BUNBURY [2015] WASAT 94
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 94 | |
| BUILDING ACT 2011 (WA) | |||
| Case No: | CC:527/2015 | 1 JULY 2015 | |
| Coram: | MR T CAREY (MEMBER) MR R AFFLECK (SENIOR SESSIONAL MEMBER) | 28/08/15 | |
| 9 | Judgment Part: | 1 of 1 | |
| Result: | Costs awarded and fixed | ||
| B | |||
| PDF Version |
| Parties: | GERALD REPACHOLI ALL SUMMER PTY LTD WINTERLEA PTY LTD CITY OF BUNBURY |
Catchwords: | Review of issue of building order Dismissed for failure to attend hearings and comply with directions Costs |
Legislation: | Building Act 2011 (WA), s 110, s 122(1) State Administrative Tribunal Act 2004 (WA), s 48(1), s 87(1), s 87(2) |
Case References: | Law and Town of Vincent [2006] WASAT 263 (S) Pearce & Anor and Germain [2007] WASAT 291 (S) |
Orders | On the application heard before Member Tim Carey it is on 28 August 2015, ordered that:,1. The applicants shall by 30 September 2015 pay the respondent's costs fixed at $13,530.30. |
Summary | The respondent sought an order for its costs of proceedings which was dismissed for the applicants' failing to attend hearings and comply with directions rather than on the merits. In considering the costs application, the Tribunal concluded, based on a number of indicators, that the application was unmeritorious and that there should be a costs order in the respondent's favour.,On assessing the costs claimed by the respondent, the Tribunal made a number of adjustments. It fixed the costs at $13,530.30. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING ACT 2011 (WA) CITATION : REPACHOLI and CITY OF BUNBURY [2015] WASAT 94 MEMBER : MR T CAREY (MEMBER)
- MR R AFFLECK (SENIOR SESSIONAL MEMBER)
- ALL SUMMER PTY LTD
WINTERLEA PTY LTD
Applicants
AND
CITY OF BUNBURY
Respondent
Catchwords:
Review of issue of building order Dismissed for failure to attend hearings and comply with directions Costs
Legislation:
Building Act 2011 (WA), s 110, s 122(1)
State Administrative Tribunal Act 2004 (WA), s 48(1), s 87(1), s 87(2)
Result:
Costs awarded and fixed
Summary of Tribunal's decision:
The respondent sought an order for its costs of proceedings which was dismissed for the applicants' failing to attend hearings and comply with directions rather than on the merits. In considering the costs application, the Tribunal concluded, based on a number of indicators, that the application was unmeritorious and that there should be a costs order in the respondent's favour.
On assessing the costs claimed by the respondent, the Tribunal made a number of adjustments. It fixed the costs at $13,530.30.
Category: B
Representation:
Counsel:
Applicants : Mr Repacholi - In Person
Respondent : Mr T Houweling
Solicitors:
Applicants : N/A
Respondent : Cornerstone Legal
Case(s) referred to in decision(s):
Law and Town of Vincent [2006] WASAT 263 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)
Introduction
1 On 1 July 2015, the Tribunal dismissed the application pursuant to s 48(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). It did so by reason of:
a) the applicants' failure to attend a directions hearing on 26 May 2015 and the final hearing on 1 July 2015; and
b) the applicants' failure to comply with directions of the Tribunal.
2 Prior to the final hearing, anticipating the making of such an order, the respondent wrote to the Tribunal indicating its intention to seek an order that the applicants pay the respondent's costs. In support of the costs application, it filed a solicitor's affidavit setting out a chronology of the matter.
3 At the final hearing, the Tribunal directed that the respondent file and serve particulars of the costs claimed including expert costs by 8 July 2015, that the applicants file and serve any written submissions opposing the costs application by 22 July 2015 and that, subject to further order, the Tribunal determine the application on the documents, and, in the event of costs being awarded, fix the costs.
4 On 7 July 2015, the respondent filed a schedule of costs, which indicated that costs in the total amount of $17,862.05 are claimed. The claim included fees of WML Consulting, engaged by the respondent as its engineering expert, of $5,426.25.
5 The applicants have filed no written submissions in respect of the costs application.
The application
6 The application was brought under s 122(1) of the Building Act 2011 (WA) (Building Act) seeking a review of a decision to issue a building order on 18 March 2015. The building order was issued under s 110 of the Building Act, and required the demolition and removal of a hangar structure erected at the Bunbury airport.
7 According to the building order:
… The building is currently in a part built state. The construction works on site, to date, have not been built in accordance with approved plans. An independent structural engineer has provided the City of Bunbury with a report stating that the as constructed part works to date are noncompliant with building code standards and cannot be considered a safe building in it's [sic] current state[.]
8 In their application, the applicants gave the following grounds of review:
The engineer that inspected has not asked for specifications. A second set of modified plans has not been implemented by council engineers. The time has expired with building permit, as the permit holder has been seriously ill for a quite a while, being unable to progress with work.
9 The matter was the subject of a directions hearing on 28 April 2015. On that occasion, Mr Repacholi appeared on his own behalf and on behalf of the other two applicants. The proceeding was adjourned for further directions on 26 May 2015 'to allow the applicant [sic] to file with the Tribunal and serve on the respondent his written expert report from a suitably qualified engineer'.
10 The applicants failed to file any expert report. The respondent filed a report of Steven Woodhouse of WML Consulting.
11 On 26 May 2015, there was no attendance on behalf of the applicants at the directions hearing. Orders were made for the respondent to file documents including a statement of reasons for its decision and witness statements, with the applicants to file and serve any documents upon which they intended to rely by 23 June 2015. The matter was listed for final hearing on 1 July 2015.
12 The respondent complied with the directions applying to it. The applicants did not. And, as we have said, the applicants did not attend the final hearing.
Is this an appropriate occasion for costs to be awarded?
13 Generally speaking, parties bear their own costs in proceedings in the Tribunal: see s 87(1) of the SAT Act. However, the Tribunal may make an order for the payment by a party of all or any of the costs of another party: see s 87(2) of the SAT Act. The circumstances in which the Tribunal has invoked the exception to the general rule vary. One such circumstance is where a party incurs costs in defending an obviously unmeritorious claim: see Pearce & Anor and Germain [2007] WASAT 291 (S) at [24].
14 Although, by reason of the failure of the applicants to participate in any meaningful way subsequent to their commencement of the proceeding, the Tribunal disposed of the matter without a determination as to the merits of the application, we are satisfied that the application was obviously unmeritorious based on the following:
• The engineering evidence provided by the respondent is consistent in its damnation of the standard of workmanship utilised in the unfinished hangar building.
• According to one of the experts, which evidence was not controverted, were the building to have been completed, it would have been a dangerous structure which could have catastrophically failed at some time in its service life.
• The respondent has, since commencement of the proceeding, contacted the applicants on numerous occasions to elicit responses without success. Amongst other things, it caused emergency building orders to be served on 12 May 2015, requiring the demolition, dismantling, or removal of unsafe tilt panels within seven days. No response to either the service of the emergency building orders or of emails in relation to those orders having been received, the respondent removed one of the tilt panels.
• The applicants have failed to avail themselves of the opportunity given to them to raise any ground in opposition to the making of a costs order.
15 The application has every appearance of being designed solely for purposes of delay.
16 Regardless of the obvious lack of merit, the respondent was required to meet the claim and, in particular, to assemble appropriate evidence in order for issues of workmanship and safety to be ventilated. In all the above circumstances, it is appropriate for a costs order to be made in accordance with s 87(2) of the SAT Act.
What amount of costs should be ordered?
17 The respondent has filed a schedule of the costs it claims in these proceedings. The schedule comprises the following descriptions and costs claimed:
| 2,600.00 |
| 2,425.00 |
| 3,775.00 |
| 1,050.00 |
| 2,550.00 |
| 35.80 |
| 5,426.25 |
| $17,862.05 |
18 In the absence of any expression by the applicants of their opposition to the costs claimed, we have considered both the components of the various categories of the claimed costs, and the invoice of WML Consulting forming the basis of the claim for expert costs. In doing so, we have attempted to apply the 'sensible, pragmatic and broadbrush approach to the reasonable assessment of costs' which the Tribunal expects of parties in matters such as this: see Law and Town of Vincent [2006] WASAT 263 (S) at [24].
19 The respondent, in its Annexure 'B', itemises the various attendances under the different descriptions. Subject to one matter, we have no difficulty with the amount of time (expressed in six minute units) contained in Annexure 'B'. The exception is that we have reduced the number of units claimed for 'attempts to contact applicant', the attempts having been unsuccessful; this happened a number of times, and no doubt the respondent's lawyer was able to make the attempts, and inform its client, with increasing efficiency as the attempts became more numerous.
20 The items are distributed between 'SP' and 'S', which we take as acronyms for senior practitioner and solicitor. When one has regard to the Legal Profession (State Administrative Tribunal) Determination 2014 (SAT Determination), a maximum hourly rate is set for 'senior practitioners' and 'junior practitioners', a senior practitioner being a practitioner admitted for five years or more. We assume that this represents the same distinction as that employed in Annexure 'B'.
21 The hourly rate allocated for 'SP' is $500. It is $250 for the junior solicitor's time. By comparison, the maximum allowable rates under the SAT Determination are $396 for senior practitioners and $297 for junior practitioners. We have allowed the time for the two practitioners at $400 per hour for the senior practitioner and at the rate claimed for the more junior solicitor.
22 By reason of the two adjustments to which we have alluded, the amounts claimed in Annexure 'A' are adjusted as follows:
| 2,080.00 |
| 2,055.00 |
| 3,625.00 |
| 840.00 |
| 2,040.00 |
We allow the full amount of the disbursements of $35.80 (being for two company searches).
23 Finally, we consider that the amount claimed for the expert costs of WML Consulting is considerably greater than what we would regard as a reasonable amount that the applicants should be required to reimburse the respondent. For ease of reference, the particulars of the total invoiced amount of $6,711.38 are reproduced here:
| 1,125.00 |
| 675.00 |
| 1,800.00 |
| 225.00 |
| 450.00 |
| 225.00 |
| 900.00 |
| 281.25 |
| 400.00 |
| 20.00 |
| $6,101.25 |
| $610.13 |
| $6,711.38 |
- $$
The respondent has pointed out that the item 'Attending wall removal' of $675 relates to the removal of a dangerous wall that was close to collapse upon inspection by the expert, which was to be excluded on the basis that that was a separate matter from the preparation of the expert report. This is a concession fairly made.
24 However, we have serious misgivings about the number of 'units' attributable to a number of the items included in the invoice. Given, based on the rate of $225, that each 'unit' is likely to be one hour, we can only assume that the units claimed are on a 'unit or part thereof' basis. We will allow only completed hourly units for the items 'Inspections' and 'Review previous report', reducing the allowances for those items to four and one respectively. In addition, we consider that an allowance of four hours in respect of report preparation is ample, with no additional allowance for report modifications. In addition, given the length and content of the report in question, we allow one hour for hearing preparation rather than four hours, and disallow the items 'Review report' and 'Attend site inspection', thereby limiting the reimbursement required by the applicants to the efforts of the author of the respondent's expert report, Mr Woodhouse.
25 The amount to be allowed in respect of the final item in Annexure 'A', 'Expert costs (WML Consulting)', is $2,854.50 (GST inclusive).
26 The total amount of costs inclusive of expert costs to be the subject of an order against the applicants is $13,530.30.
Order
1. The applicants shall by 30 September 2015 pay the respondent's costs fixed at $13,530.30.
I certify that this and the preceding [26] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR T CAREY, MEMBER
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