Riviera Homes (WA) Pty Ltd v Mathew - [2025] WASC 370

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   RIVIERA HOMES (WA) PTY LTD -v- MATHEW & ANOR [2025] WASC 370
CORAM:   PALMER J
HEARD:   15 MAY 2025 AND 4 SEPTEMBER 2025
DELIVERED          :   4 SEPTEMBER 2025
FILE NO/S:   GDA 9 of 2024
BETWEEN:   RIVIERA HOMES (WA) PTY LTD
Appellant
AND
JAMES MATHEW
First Respondent
TINTA JACOB KUNNAPPALLIL
Second Respondent

ON APPEAL FROM:
For File No:   GDA 9 of 2024
Jurisdiction              :   STATE ADMINISTRATIVE TRIBUNAL
Coram:   MR R AFFLECK, SENIOR SESSIONAL MEMBER AND MR B DE VILLIERS, MEMBER
File Number            :   CC 863 of 2022

Catchwords:

Appeal from a decision of the State Administrative Tribunal to order costs - Whether Tribunal functus officio - Whether Tribunal failed to take into account relevant considerations when ordering costs - Whether Tribunal ordered costs to punish the appellant

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA)
State Administrative Tribunal Act 2004 (WA)

Result:

Leave to appeal refused

Appeal dismissed

Representation:

Counsel:

Appellant	:	Mr L Palmos
First Respondent	:	In person
Second Respondent	:	No appearance

Solicitors:

Appellant	:	Palmos Legal
First Respondent	:	In person
Second Respondent	:	No appearance

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

Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263
Chief Executive Offer, Department of Transport v Aberdour [2024] WADC 80
Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S)
Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115
Gill & Ros and Wildnight Pty Ltd [2008] WASAT 135
Hancock Prospecting Pty Ltd v DFD Rhodes Pty Ltd [No 2] [2023] WASCA 108
Hoskins v Daniel Vinci T/A D'Vinci Contracting [2011] WASAT 188
Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83
Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361
Re Minister for Immigration and Multicultural Affairs; Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165
Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91
Springmist Pty Ltd v Shire of Augusta-Margaert River [2005] WASAT 143 (S)
Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 73
Trimat Holdings Pty Ltd v Investment Club Pty Ltd [2022] WASCA 59; (2022) 58 WAR 45
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Zerjavic v Chevron Australia [2020] WASCA 40

PALMER J:

Introduction

This is an appeal against two costs orders made by the State Administrative Tribunal (Tribunal). The orders totalled $32,825.
The respondents are the owners of a home in Morley (the Homeowners). The appellant (the Builder) is a building company that constructed that home.
On 12 December 2021, the Homeowners made a complaint about the Builder pursuant to s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (Building Services Complaint Resolution Act).
The complaint was ultimately set down for a hearing on 26 August 2024, before Member Dr de Villiers and Senior Sessional Member Affleck.
At the commencement of the hearing the parties agreed to resolve two of the three complaints made. The hearing then proceeded to consider the third remaining complaint. The dispute about that complaint concerned the appropriate remedial work that should be performed and the amount of the monetary order that should be made under s 36(1)(b) of the Building Services Complaint Resolution Act. Both parties also sought an award of costs in their favour.
On 11 September 2024, the Tribunal published reasons for its decision (the Primary Reasons). Those reasons addressed the remedial work that should be performed and how much should be paid by the Builder for that work. The reasons also noted that both parties had raised the possibility of costs being awarded in their favour and that the Homeowners had sought costs for relocation, storage and accommodation while the remedial work was being undertaken. The Tribunal said that it would refer the question of 'costs in general' for mediation but would decide the issue if it was not resolved at mediation.
The parties were unable to resolve the outstanding issues through mediation and the Tribunal ordered that it would determine those matters on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). Both parties applied for costs orders. The costs sought by the Homeowners included costs they incurred obtaining expert evidence and legal advice, as well as costs for relocation, storage and accommodation while rectification work was undertaken.
On 20 November 2024, the Tribunal delivered oral reasons for decision relating to the outstanding matters (Supplementary Reasons). The Tribunal refused the Builder's application for costs. It ordered the Builder to pay the Homeowners an amount of $14,063.57 towards the costs of experts and legal advice and the amount of $18,761.43 towards the costs of relocation, storage, and accommodation while remedial work is being undertaken. It is these orders that are the subject of the present appeal.

Why an appeal may only be brought on a question of law

An appeal only lies on a question of law and with leave to appeal.
This appeal has been brought under s 105(1) of the SAT Act. That section of the Act provides that leave to appeal is required.
Subject to a presently irrelevant exception, s 105(2) provides that an appeal may only be brought on a question of law.
The principles concerning the grant of leave to appeal under s 105 of the SAT Act were summarised by the Court of Appeal in Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee[1] as follows:
A party may only appeal against a decision of the Tribunal if the court gives leave to appeal.
As this court recognised in Paridis v Settlement Agents Supervisory Board, the power to grant leave is conferred in general terms and leave should be granted if, in all of the circumstances, it is in the interests of justice that there should be a grant of leave.
While the ultimate issue is whether the grant of leave is in the interests of justice, Buss JA (as his Honour then was) in Paridis stated that, in considering whether to grant leave, regard should be had to the guidelines articulated by the court in Secretary to the Department of Premier and Cabinet v Hulls. In Hulls, Phillips JA said:
When leave is sought to appeal … it will be necessary for the applicant to identify a question of law which is relevant to the granting of the relief sought on appeal. The importance of the question, either generally or to the would-be appellant in the particular case, will probably be relevant. The applicant must show that there is a real or significant argument to be put on that question of law at least to this extent: that there is sufficient doubt about it to justify the grant of leave. Moreover, it may have to be shown that to allow the error to go uncorrected would impose substantial injustice, although, where the order below is final, that injustice will often be more readily discernible.
These guidelines are relevant. They are not, as Buss JA emphasised in Paridis, determinative. Whether leave is granted must depend upon the circumstances of each particular case. In this regard, the grant of leave should not be regarded as a perfunctory exercise. The legislative purpose in requiring the grant of leave is to reduce unnecessary appeals from decisions of the Tribunal.
[1] Thillagaratnam v Law Complaints Officer as the Delegate of the Legal Profession Complaints Committee [2024] WASCA 73 [25] - [28].
The concept of an appeal 'on a question of law' was explained by the Court of Appeal in Paridis v Settlement Agents Supervisory Board as follows:[2]
An appeal 'on a question of law' is narrower than an appeal that merely 'involves a question of law'. Where an appeal lies 'on a question of law' the subject matter of the appeal is the question or questions of law. If a question raised by a litigant, properly analysed, is not a question of law, linguistic gymnastics in the formulation of the grounds of appeal cannot convert it into a question of law. A question of mixed law and fact is not a question of law within s 105(2).
[2] Paridis v Settlement Agents Supervisory Board [2007] WASCA 97; (2007) 33 WAR 361 [53].
The appeal is in the nature of judicial review proceedings, albeit that the question of law extends to jurisdictional and non-jurisdictional errors of law.[3] The error of law must also be material.[4]
[3] Chang v Legal Professional Complaints Committee [No 2] [2020] WASCA 208; (2020) 56 WAR 263 [232].
[4] Ord Irrigation Cooperative Ltd v Department of Water [2018] WASCA 83 [129] - [130].

The proceedings in the Tribunal

The Primary Reasons

The dispute before the Tribunal concerned a claim for a monetary order for the cost of repairing paint work.
As I have mentioned, there were originally three complaints before the Tribunal. Two of those complaints were resolved on the first day of hearing. The Builder accepted liability in relation to the third complaint but there was a dispute about the amount of the monetary order that should be made.
The expert evidence before the Tribunal had identified two different remedial options. One which the Tribunal referred to as 'Option A' was widely practiced in the building industry. The other referred to as 'Option B' was experimental. The Homeowners objected to Option B because it was experimental. The Tribunal agreed and rejected Option B as unsuitable.
At the commencement of the hearing the scientific experts and Mr Jones (a quantity surveyor called by the Builder) believed that there would be a major costs differential between Option A and Option B. The Tribunal considered that the evidence it heard during the hearing revealed that the scope of the remedial work and cost of Option A and Option B was not as far apart as was thought.
The Builder called Mr Jones to give evidence about the cost of the building work. Although the Homeowners obtained a proposal from Midnight Construction Group which costed the remedial work at $130,106.60, they did not call a witness to give evidence to support the proposal or answer questions about it. The builder called by the Homeowners, Mr Lawrence, supported the evidence given by Mr Jones about the cost of remedial work.
The Tribunal found that the Midnight Construction Group proposal was not suitable because:
(a)it was not signed by an authorised person or dated;
(b)no person was called to give evidence about it or answer questions;
(c)the scope of the proposal exceeded the scope of work as agreed to during the hearing by the scientific and building experts; and
(d)the proposal included substantial work that would in fact not be required and since line-item works were not separately costed, the proposal had no utility.
The Tribunal relied upon the estimate provided by Mr Jones and considered that an award of $13,900.43 would be appropriate in this regard. It noted that all four experts agreed that that amount was reasonable.
The Primary Reasons concluded by noting that the parties had claimed other costs. It indicated that it would refer the question of costs to mediation and determine any outstanding issues if the parties were unable to resolve the matter through mediation.
On the same day, 11 September 2024, the Tribunal made orders referring the question of costs to mediation. The terms of those orders are set out in paragraph [84] below.

The mediation fails and both parties seek costs

As I have mentioned, the parties were unable to resolve the outstanding issues at mediation and orders were made for the parties to exchange written submissions in relation to the outstanding costs issues. Both parties made applications.
The Builder sought an order pursuant to s 87 of the SAT Act that the Homeowners pay the sum of $63,920.88 in external legal and experts' costs incurred by the Builder defending the proceedings.[5]
[5] Relevant Records O65 r 10 Rules of the Supreme Court 1971 (WA) dated 18 December 2024 (Appeal Papers), Annexure H.
These orders were sought on the basis that the Homeowners had engaged in unreasonable conduct by refusing offers to remediate the property, three Calderbank offers made by the Builder of $25,000, $30,000 and a third offer which was limited to an offer to repair the Homeowners' roof. The Builder relied on the fact that the monetary Calderbank offers were for a sum that exceeded the sum of $18,978.97 that had been awarded to the Homeowners at that stage.[6]
[6] Appeal Papers, Annexure I.
The Homeowners made a claim for the payment of relocation, storage and accommodation costs, fees that they had paid to experts and for a payment to compensate them for their time.[7]

The Supplementary Reasons

[7] Appeal Papers, Annexure L.

The Tribunal's oral reasons for making the orders the subject of the present appeal were delivered by Member Dr de Villers.
After discussing the relevant background, the Tribunal turned to consider the relevant legislative framework. The Tribunal then referred to comments made by Senior Member Raymond in Hoskins v Daniel Vinci T/A D'Vinci Contracting[8] concerning s 49 of the Building Services Complaint Resolution Act and a decision of the Tribunal (Gill & Ors and Wildnight Pty Ltd)[9] and the Court of Appeal (Ford Motor Company of Australia Ltd v Lo Presti)[10] concerning Calderbank offers.
[8] Hoskins v Daniel Vinci T/A D'Vinci Contracting [2011] WASAT 188 [19].
[9] Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135.
[10] Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115.
Next, the Tribunal observed that the Builder's submissions seemed to proceed on the basis that once the Homeowners received a sum less than the offer, the costs wasted would automatically be awarded to the Builder. The Tribunal said that such an understanding of Calderbank offers was incorrect and it was necessary for it to form an opinion about whether the rejection of the offer was unreasonable. The Tribunal indicated that it considered that the rejection of the Calderbank offers was not unreasonable for five reasons.
First, the Tribunal considered that prior to the hearing, when the Calderbank offers were refused, the experts had yet to agree about the appropriate remediation work. The Tribunal said that it was only during the hearing and after extensive examination that the Tribunal could make a finding that Option B was not suitable as it was not tested. The Tribunal said that the Homeowners' concerns about Option B were not unreasonable.
Secondly, the Tribunal said that the Homeowners' queries about the evidence of the Builder's expert were not unreasonable. The Tribunal noted that the Builder's expert went to some length to investigate whether the paint was defective. The Tribunal noted that it ultimately determined that the paint was not defective and that the expert accepted as much.
Thirdly, the Tribunal observed that at the time the first two Calderbank offers were made, the nature and extent of the remedial work to be undertaken was unclear. The Tribunal noted that the Builder had argued that a specialist sealer or paint could be applied which was rejected by the Tribunal. The Tribunal said that the rejection of the Calderbank offers against the background of such uncertainty was not unreasonable.
Fourthly, the Tribunal said that the Calderbank offer, particularly the third offer, did not account for the possibility that the Homeowners might have to vacate their house for the remedial work to be undertaken. The Tribunal observed that the rejection of the Calderbank offers against the uncertainty concerning whether the house should be vacated was not unreasonable.
Fifthly, the Tribunal noted that the third Calderbank offer was made after the Tribunal had delivered the Primary Reasons and assumed that the Homeowners might be required to pay the Builder's costs.
For these reasons, the Tribunal considered that the rejection of the Calderbank offers was not unreasonable and that the costs awarded were not less favourable than the offers. The Tribunal considered that costs should be determined on the basis of ordinary principles rather than by reference to the Calderbank offers.
The Tribunal then turned to consider whether the Builder was entitled to costs and determined that it was not, for six further reasons.
First, the Tribunal noted that the building service provided by the Builder was defective. It said that it was reasonable for the Builder to retain an expert to advise it on the cause of the failure and appropriate remedy but those costs should be to the account of the Builder. The Tribunal said that the Homeowners should not be expected to pay for these costs in a case where the Builder's experts focused on the deficiency of the paint when the set coat had failed.
Secondly, the Tribunal was critical of the Builder's experts, particularly of Dr Zurhaar. The Tribunal considered that Dr Zurhaar and Mr Jones did not assist to resolve the dispute as quickly and effectively as possible and appeared to be advocating for the Builder. It said that they prolonged the proceedings longer than was necessary by pursuing Option B which was found to be untested, experimental and impractical.
Thirdly, while the Tribunal accepted that the claims made by the Homeowners initially were 'extravagant' and out of proportion to the remedial work required and may have caused the Builder to seek legal counsel, it did not consider it appropriate to award legal costs merely because the remedy sought was unreasonable.
Fourthly, the Tribunal observed that the remarks made by the Homeowners about Dr Zurhaar (who was a sessional member of the Tribunal) did not require a response from a legal practitioner. The Tribunal said that it was impartial and in a position to weigh the evidence and consider the expert opinions.
Fifthly, the Tribunal considered that the Builder wasted costs by causing a hearing to be adjourned when it raised concerns about the Tribunal's jurisdiction on the morning of the hearing. The Tribunal indicated that this led to the hearing being adjourned so that the jurisdictional question could be set down for a hearing, only for the Builder to withdraw its jurisdictional challenge a few days prior to the hearing of that challenge.
Sixthly, the Tribunal said that the complexity of the matter did not otherwise warrant legal representation. The Tribunal observed that the case was relatively simple and it was the expert evidence which established what the remedial cost would be. It said that the advancement of Option B caused unnecessary delay to the resolution of the proceedings. It considered that while the Builder was entitled to retain a legal practitioner if it wished, it was the Builder who should pay that cost.
The Tribunal then turned to consider whether the Homeowners should be entitled to any costs and indicated that it thought that they should be for four reasons.
First, the Tribunal said that the Homeowners' complaint was accepted by the Tribunal on the basis of the expert evidence obtained by the Homeowners. It observed that it would have been unable to make a finding about the merit of the complaints, the remedial work to be done or the cost of that work without that evidence. It commented that the Homeowners had no choice but to obtain expert evidence given the Builder had been reluctant to accept liability.
Secondly, the Builder was reluctant to acknowledge the merit of the Homeowners' complaint and obtained expert evidence from Dr Zurhaar focused on possible paint deficiencies rather than the failing of the set coat. It said that the Homeowners had to retain an expert to establish that it was the set coat that had failed and it was only later that Dr Zurhaar also accepted that it was the set coat and not the paint that failed.

Thirdly, the Tribunal said that the expert conferral and the conferral between the builders assisted to resolve the complaint and suggest an appropriate remedy. The Tribunal noted that it ultimately accepted Mr Lawrence's opinion that Option B was not realistic, practical or supported by industry.
Fourthly, the Tribunal considered that the Builder had caused unnecessary delay by objecting to the Tribunal's jurisdiction.
The Tribunal then indicated that it considered that the Homeowners were entitled to the costs of the expert reports and legal advice for four reasons.
First, the technical nature of the case required expert investigation, analysis, reporting and evidence. The Tribunal said that the complaint could not be determined without that evidence.
Secondly, the expert opinions of the Homeowners' experts were accepted, particularly in regard to the nature of the remedial work required and the cost of that work.
Thirdly, the Builder and its experts persistently denied causation or sought to minimise the scope of remedial work by reference to Option B. The Tribunal said that this left the Homeowners with little choice but to retain experts, including legal representation in respect of the jurisdictional issue.
Fourthly, the Builder had not filed any detailed submissions in opposition to the costs claimed by the Homeowners, other than in relation to the Calderbank offers.
The Tribunal then turned to consider the claims made by the Homeowners and awarded a sum of $14,063.57 by reference to the materials filed by the Homeowners.
The Tribunal then turned to consider whether the Homeowners should be entitled to the cost of relocating while remedial work was performed and considered that the Homeowners should be entitled to such costs for three reasons.
First, the remedial work would involve scraping off the set coat of all of the walls, reapplying the set coat, waiting for it to dry and repainting the walls and would take around eight weeks.
Secondly, the Builder did not object to costs claimed by the Homeowners for relocating while the work was being done. The Tribunal also indicated that it was not unreasonable for the Homeowners to claim the costs of relocating while the work was done as it would be highly disruptive as the house would be a worksite.
Thirdly, the Builder did not challenge the Homeowners’ estimate of their likely costs or file any quotations of their own.
The Tribunal awarded the Homeowners the sum of $18,761.43 comprised of $3,544.20 for removal and storage and $15,217.23 for short term accommodation.
The Tribunal, however, did not consider that the Homeowners were entitled to costs claimed for their personal time involved in the litigation and refused that aspect of the Homeowners' application.
As a consequence, on 20 November 2024, the Tribunal made the following orders:
1.The application for costs by the [Builder] is dismissed.
2.The application for costs by the [Homeowners] is successful in part.
3.The [Builder] shall pay to the applicant the amount of $14 063.57 towards the costs of experts and legal advice.
4.The [Builder] shall pay to the applicant the amount of $18 761.43 towards the costs of relocation, storage, and accommodation while remedial work is being undertaken; and
5.The [Builder] shall pay the amounts in orders 3 and 4 by no later than 1 January 2025.

The procedural history of this appeal

This appeal initially came on for hearing before me on 15 May 2025.
The notice of appeal filed by the Builder initially only included grounds 1 and 2. During the course of the hearing, following exchanges with the court, the Builder's counsel sought leave to amend the grounds of appeal to include a new ground (which ultimately became ground 3).
At the time, the proposed new ground seemed sufficiently close to ground 1 that I should permit the amendment. Unfortunately, this amendment necessitated an adjournment (to allow for the exchange of further written submissions). It is regrettable that the appeal was not able to be determined on 15 May 2025.

Grounds 1 and 3

The grounds of appeal

The Builder's first ground of appeal is that:
1.The Tribunal erred in law in making order 4 of the costs orders of 20 November 2024. Order 4 is not an order for costs. It is, in effect, an order for damages for the “costs of relocation, storage, and accommodation while remedial work is being undertaken”. There was no power under s 87 of the SAT Act or s 49 of the BSCRA Act for the Tribunal to make an order in the nature of order 4.
…
3.The Tribunal erred in making order 4 because there was no power under s 36(1)(c) as at 20 November 2024 to make any further building remedy orders.
Particulars
(a)There was only one matter remaining for determination at the trial on 26 August 2024, being complaint item 1.
(b)Order 1 of the orders of 11 September 2024 provide that “The [Appellant] shall pay the [Respondents] the amount of $13,900.43 in full and final satisfaction of complaint 1” (our emphasis).
(c)On and from 11 September 2024, the Tribunal, insofar as orders under s 36(1) of the BSCRA were concerned, was functus officio.
I will address these grounds together as they are interrelated and overlap.

Why the Builder argues that the grounds have merit

These grounds relate to the Tribunal's award of $18,761.43 towards the costs of relocation, storage, and accommodation during remedial work.
In relation to ground 1, the Builder argued that it is evident from the Supplementary Reasons that the Tribunal considered its jurisdiction to make order 4 was derived from s 87 of the SAT Act, or s 49 of the Building Services Complaint Resolution Act.
The Builder submitted that s 87(1) of the SAT Act expressly provides that the power to make an order for costs under s 87(2) is subject to the relevant enabling Act, which in this case is the Building Services Complaint Resolution Act.
The Builder contended that s 49 of the Building Services Complaint Resolution Act in essence provides that the Tribunal may make such orders for costs as the Tribunal thinks fit arising from a building service complaint.
The Builder submitted that properly understood order 4 is not an order for costs. Rather, it was argued it is in the nature of an award of damages or compensation for what the Homeowners claimed were expenses that they would be likely to incur.
The Builder argued that there was little doubt that prior to delivering 'its decision in the substantive action' it was open to the Homeowners to seek an order for compensation under s 36(1)(c) of the Building Services Complaint Resolution Act in the nature of order 4. The Builder acknowledged that the Homeowners sought such an order but argued that the Homeowners failed to adduce sufficient evidence to support that claim. The Builder referred to a submission to that effect made by its lawyer to the Tribunal.
The Builder argued that the Homeowners 'elected against' adducing evidence and instead pursued their claim under the 'guise' of an application for costs under s 87 of the SAT Act.
The Builder referred to two decisions of the Tribunal, Springmist Pty Ltd v Shire of Augusta-Margaret River[11] and Fitzgerald and Mercedes Group Pty Ltd,[12] which it argued established that there was no scope to make and order under s 87 of the SAT Act and it was too late to make an order under s 36(1)(c) of the Building Services Complaint Resolution Act.
[11] Springmist Pty Ltd v Shire of Augusta-Margaert River [2005] WASAT 143 (S) (Springmist).
[12] Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S) (Fitzgerald).
In Fitzgerald the Tribunal refused to award homeowners their costs of having to vacate their premises while their floorboards were being rectified. The Tribunal noted that while the homeowners might have sought those costs under s 36(1)(c) of the Building Services Complaint Resolution Act, the first time that a claim was made for these costs was after the Tribunal had determined the homeowners complaints. Member Cade considered that the Tribunal was functus officio and could not make the orders sought. In reaching this conclusion, Member Cade referred to the earlier decision of the Tribunal in Springmist which discussed the limitations on the power to award costs under s 87 of the SAT Act.
With regard to ground 3, the Builder referred to orders made by the Tribunal on 11 September 2024 and submitted that those orders were expressed as an order that the Builder should pay the Homeowners' costs 'in full and final satisfaction' of Complaint 1.
The Builder also referred to observations made by Curwood DCJ in Chief Executive Officer, Department of Transport v Aberdour[13] about the construction of court orders. In that decision his Honour referred to observations made by the Court of Appeal in Hancock Prospecting Pty Ltd vDFD Rhodes Pty Ltd [No 2].[14]
[13] Chief Executive Offer, Department of Transport v Aberdour [2024] WADC 80 [24] - [26] (Aberdour).
[14] Hancock Prospecting Pty Ltd vDFD Rhodes Pty Ltd [No 2] [2023] WASCA 108 (Hancock).
The Builder argued that order 1 is a complete and final resolution of the complaint. It contended that the language is unambiguous and that extrinsic material was therefore unnecessary to determine the meaning of the order. The Builder referred and relied upon observations made in Fitzgerald in this regard.

Why leave to appeal will be refused

I do not consider that the Tribunal was functus officio. This case is quite different to Fitzgerald.
When the Tribunal delivered the Primary Reasons, it expressly acknowledged that the Homeowners had made a claim for relocation, storage and accommodation costs. The Tribunal indicated that it would refer this claim to mediation but determine it if it was not resolved by that mediation. This is expressly recorded in paragraph [52] of the Primary Reasons which stated as follows:
Both parties have raised the possibility of costs being awarded in their favour. The owners also claim cost for relocation whilst the remedial work is being undertaken. Although the Midnight Construction Group estimate for remedial work is given little weight, the estimate anticipated around eight weeks during which alternative accommodation would have to be secured (Exhibit A: 158). This is consistent with the time estimated by the experts for remedial work to take place. We shall adjourn the question of costs in general for mediation since the parties may be able to come to an all inclusive settlement without a further hearing. An order will be made for the parties to file a proposed settlement as to costs for purposes of mediation. If agreement is not reached, the matter will return to us for a hearing.
(emphasis added)
When the Tribunal delivered the Supplementary Reasons, it expressly addressed the relevant legislative framework and indicated that its jurisdiction extended to that derived from s 36(1)(c) of the Building Services Complaint Resolution Act. The Tribunal said the following in the Supplementary Reasons:[15]
Framework for consideration of costs.
The general principles according to which an application for costs is considered by the tribunal are well established in sections 87(2) of the SAT Act and section 36(1)(c) and section 49 of the Building Services (Complaint Resolution and Administration) Act of 2011. If there is an inconsistency between the statutory provisions, the provisions of the enabling Act prevail. Simply put, SAT has a wide discretion to consider whether cost and expenses should be awarded, and if so, the quantum.
All relevant factors must be taken into account to assess what is fair and reasonable in the circumstances. The range of costs and expenses that can potentially be awarded includes legal expert costs, as well as other costs arising, for example, expenses for relocation to compensate an owner for remedial work to be done, and so forth.
(emphasis added)
[15] ts 3 - ts 4.
It is therefore evident that the Tribunal considered that the jurisdiction conferred by s 36(1)(c) of the Building Services Complaint Resolution Act remained engaged because the Homeowners' claim for relocation, storage and accommodation costs had been adjourned and remained undetermined.
The Builder argued that order 1 of the orders made on 11 September 2024 was a complete and final resolution of the complaint. It contended that as that order was unambiguous, extrinsic material was unnecessary to determine its meaning.
The meaning of the words used in order 1, must be considered in the context of all of the orders made, however. Those orders were as follows:
1.The respondent shall pay the applicants the amount of $13,900.43 in full and final satisfaction of Complaint 1. The payment must be made by no later than 1 October 2024.
2.The parties must by no later than 27 September 2024, file and serve a Memorandum for Mediation of no more than two pages in which each party sets out the cost claimed.
3.The question of costs is referred to a mediation to commence at 10.00 am on 4 October 2024. The parties shall attend the mediation in person.
4.If the matter does not resolve at mediation, orders may be made in mediation for the question of costs to be set down for a hearing.
In my view, orders 2 to 4 of these orders reveal that the Tribunal considered that the 'question of costs' addressed by those orders remained undetermined. The nature of the cost questions that remained undetermined is relevant to the proper construction of order 1. This is because what the Tribunal considered was undetermined, provides insight into what it intended to determine by making order 1. It would have been unnecessary for the Tribunal to make orders for the later determination of matters that it had intended to determine by making order 1.
I consider that what the Tribunal meant by 'cost claimed' and 'question of costs' is ambiguous. The language used is apt to apply to questions that extend beyond whether a party is entitled to legal costs. Order 2 of the orders required parties to file submissions addressed to 'cost claimed'. The order is not limited to any particular type of claim for costs. The orders also do not define, or otherwise explain, what is meant by a 'question of costs'.
Given this ambiguity, I consider it appropriate to have regard to the Primary Reasons and the Supplementary Reasons to resolve the ambiguity. When those reasons are considered, it is evident that the matters that the tribunal intended to reserve for later determination by making orders 2 to 4, included the Homeowners' claim for relocation, storage and accommodation costs.
That the matters that orders 2 to 4 were intended to address, included that claim, is relevant to the proper construction of order 1. Order 1 must be read in a manner that gives proper effect to orders 2 to 4. I consider that, properly construed, order 1 did not extend to the determination of the Homeowners' claim for relocation, storage and accommodation costs. That claim was the subject of orders 2 to 4.
Further, if the reasons that I have given for concluding that the Tribunal was not functus officio are wrong, I do not consider that the Builder should be permitted to raise these grounds for the first time on appeal. Although the Tribunal had foreshadowed in the Primary Reasons that it would determine the Homeowners' claim for relocation, storage and accommodation costs if it was not resolved by mediation, at no stage did the Builder submit to the Tribunal that it would be unable to do so as it was functus officio.
An appeal court will not ordinarily permit an appeal on a ground raised on appeal for the first time unless the case is one where the new point may be entertained in accordance with well-established principles. In Zerjavic v Chevron Australia,[16] the Court of Appeal summarised the principles relating to whether a party should be entitled to advance a new case on appeal as follows:
[16] Zerjavic v Chevron Australia [2020] WASCA 40.
65 In some jurisdictions it is suggested that, without a grant of leave, an appellate court will not allow a party to rely on an argument not relied on at first instance. It has not been this court's practice to require or formally grant such leave. There is no statutory provision requiring such leave. Appeals such as the present are brought as of right. They are appeals by way of rehearing. While an appeal by way of rehearing is ordinarily for the correction of error, error in the primary court's final determination does not necessarily involve error in the process of reasoning of the primary court. Accordingly, there are exceptional circumstances, sometimes referred to as 'most exceptional' or 'very exceptional', in which this court, conducting an appeal by way of rehearing, will undertake its task of correcting error by reference to a new point not advanced before the primary court. However, this court, while not requiring leave to advance a new point, will not allow the appeal on such a ground unless the new case is one where, in accordance with well-established principles, the new point may be entertained.
66 The general principles relating to the exceptional cases in which a party may advance a new case on appeal are well known. In summary:
1.An appellant is bound by the conduct of his or her case at trial. The opportunity to assert a new case at another trial should only be granted where the interests of justice 'require it' and such a course can be taken without prejudice to the other party.
2.The circumstance that an appeal is by way of rehearing does not mean that the issues and the evidence are considered at large. Other than in exceptional circumstances it is contrary to principle to allow a party to raise a new argument which, whether deliberately or by inadvertence, he or she failed to put during the trial when there was an opportunity to do so. It is fundamental to the due administration of justice that the substantial issues between the parties are ordinarily settled at trial.
3.A point cannot be raised for the first time on appeal when it could possibly have been met by calling evidence at the trial. (In that respect a statement by counsel that he or she would have led evidence on the point will be given weight unless it is unreasonable or improbable.)
4.However, an appellate court may allow a new point to be raised on appeal where it is both 'expedient and in the interests of justice' to entertain the new point and '[w]here all the facts have been established beyond controversy or … the point is one of construction or of law'.
5.Even if no question of further evidence arises it may not be in the interests of justice to allow a new point to be raised on appeal - particularly if it will require a further trial of the action.
6.Before any new point is allowed the court should be satisfied that the raising of it could work no injustice to the other party and it is otherwise in the interests of justice to allow the new point to be raised.
7.In deciding whether a point was raised at trial no narrow or technical view should be taken. The pleadings may not be decisive where the evidence has been allowed to travel beyond them or fresh issues are raised. Indeed, a point may be a new point even though it is within the pleading or particulars. It is necessary to look at the actual conduct of the proceedings to see whether a point was taken at trial, especially where a particular is equivocal. Usually the reasons of the trial judge are the best indication of what matters were in issue between the parties at trial.
8.If an appellate court is satisfied that the appellant is seeking to advance a new case on appeal there is no residual discretion under which the court may permit the new case to be run 'in the interests of justice'. Rather, the interests of justice are encapsulated in the principles previously discussed.
67 The juridical basis of these principles is in part grounded in public policy considerations: the need to ensure finality in litigation. The finality of litigation and the importance of parties being bound to the cases they make at trial should never be overlooked. The principles are also grounded in the doctrine of estoppel by election in the conduct of litigation. To the extent that the principles have their origin in estoppel by election the relevant consideration is not that the other party is put in a worse position, but that he or she may have been put in a worse position. So a new point of law cannot be taken if, had it been taken at trial, the course of the proceedings could have been altered - whether by the adducing of other evidence or otherwise. The possibility that the hearing would have taken a different course may suffice to deny raising the new point.
(footnotes omitted)

In Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd,[17] the Court of Appeal observed that the mere fact that the new point does not involve any factual issue does not mean that the new point should be permitted to be raised for the first time on appeal. It observed that it must still be demonstrated that the determination of the new point is required by the interests of justice.
[17] Rizhao Steel Holding Group Co Ltd v Koolan Iron Ore Pty Ltd [2012] WASCA 50; (2012) 43 WAR 91 [53]. See also Trimat Holdings Pty Ltd v Investment Club Pty Ltd[2022] WASCA 29; (2022) 58 WAR 45 [141].
In my view, if the reasons that I have given for concluding that the Tribunal was not functus officio are wrong, permitting the Builder to raise these grounds for the first time on appeal would work an injustice.
If the Builder's construction of order 1 is correct, then it is evident from the Primary Reasons and the Supplementary Reasons that the order was made in error. Those reasons make it plain that the Tribunal intended to reserve the determination of the Homeowners' claim for relocation, storage and accommodation costs to after the mediation. If the Builder had submitted to the Tribunal that it was functus officio, then the Tribunal would have had the opportunity to correct its error by amending order 1 under the slip rule. This court is unable to address this issue at the appellate level.
Therefore, even if the Builder's construction of order 1 is correct, I do not consider that it would be in the interests of justice to allow an appeal to proceed on these grounds.
Leave to appeal will be refused on grounds 1 and 3.

Ground 2

The ground

Ground 2 is that:
The Tribunal erred in law in making orders 2 and 3 of the costs orders of 20 November 2024 by:
(i)taking into account irrelevant matters and failing to properly take into account relevant matters. In so doing, the Tribunal's exercise of discretion miscarried;
(ii)granting the Homeowners application for costs in circumstances where the evidence was such that a costs order in the Homeowners' favour was outside the scope of sound discretionary judgment.

Why the Builder argues that the ground has merit

The Builder accepted that successful appeals on questions of practice and procedure will be rare, particularly in relation to costs. It was submitted, however, that the Tribunal's decision to make order 2 and 3 was an example of a decision that was so unreasonable that no reasonable Tribunal could have come to that conclusion. The Builder submitted that the Tribunal erred in awarding costs in circumstances in which the Homeowners:
(a)were substantially unsuccessful at trial;
(b)were found to have made extravagant and unsupportable claims of loss/damage throughout the proceedings;
(c)had rejected three separate offers of settlement, each of which could have resulted in a more favourable outcome than was ultimately achieved after trial; and
(d)had otherwise failed to conduct their case in accordance with the statutory objective of the Tribunal to resolve cases fairly and according to their substantial merits, as speedily and with as little formality as practicable in a way which minimises the parties' costs.
The Builder submitted that in Western Australian Planning Commission v Questdale Holdings Pty Ltd,[18] the Court of Appeal held that the effect of s 87(1) of the SAT Act is that each party in proceedings before the Tribunal must bear its own costs unless the Tribunal makes an order otherwise. It was contended that irrespective of the apparent success or failure of either party, the default position is that both parties must bear their own costs unless they are successful in satisfying the Tribunal that an order for costs is justified.
[18] Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (Questdale).
The Builder argued that there is no closed list of circumstances in which the Tribunal will exercise its discretion under s 87 and each application must be decided on what is fair and reasonable. It was contended that it will generally be fair and reasonable for the Tribunal to make a costs order against a party if that party has conducted the proceedings in an unreasonable or inappropriate manner; unnecessarily prolonged the proceedings; presented their case in such a way as to impose unnecessary burdens on the Tribunal; or pursued an unmeritorious, vexatious, grossly exaggerated or dishonest claim.
The Builder submitted that unlike in curial litigation, the important principle commonly referred to as the ‘usual order as to costs’ where a successful party ordinarily receives their costs has no application given the nature of s 87(1) and the presumptive starting position that both sides bear their own costs.
The Builder contended that in curial litigation, it is unusual (but not impossible) for a wholly or substantially unsuccessful party to be awarded costs. It was argued that it would logically follow that it would be even more unusual for a wholly, or substantially, unsuccessful party in the Tribunal to be awarded costs under s 87.
Somewhat inconsistently, the Builder also argued that in almost all statutory contexts, including under the SAT Act and Building Services Complaint Resolution Act, the substantive orders made at trial must always bear significantly on the exercise of discretion as to the costs of the proceedings.
The Builder submitted that it was the successful party at trial. It contended that the Homeowners maintained at trial that the quantum they should be awarded for complaint item 1 was $130,106.60, based on a 'remedial works proposal' by Midnight Construction Group. The Builder submitted that that evidence was criticised by the Tribunal because the scope of the remedial work was excessive and unnecessary and because the four experts (two of whom were engaged by the Homeowners) agreed that $13,900.43 was reasonable. The Builder contended that the fact that the quantum awarded was so much less than that claimed meant they were the successful party.
The Builder submitted that the Tribunal awarded the Homeowners costs despite finding in the same decision that they had made unreasonable and extravagant claims. It was argued that this should have been a strong factor militating against the award of costs in favour of the Homeowners. It was contended that it was 'impossible' to see how it could be 'fair and reasonable' to depart from the default 'no costs' position under s 87(1) of the SAT Act given such a finding.
The Builder contended that the Tribunal failed to properly or adequately consider the effect of the three settlement offers made. The Builder argued that the Tribunal failed to explain why it was not unreasonable for the Homeowners to reject the third settlement offer.
The Builder contended that s 87(5) of the SAT Act and the SAT Act generally reveals a statutory intention to encourage settlement. It was argued that the Tribunal should have considered the rejection of the settlement offers as relevant to the question of whether the Homeowners should be entitled to costs.
The Builder referred to the observation made by the Tribunal in the Supplementary Reasons that without the expert evidence obtained by the Homeowners it would not have been able to make a finding about the merits of the complaint, the remedial work that was necessary or its cost.
The Builder argued that it had already conceded liability, leaving only the scope of the work and quantum to be the issues. The Builder accepted that the Tribunal's conclusion was informed by the Homeowners' expert evidence but argued that their expert agreed with the Builder's expert. It was argued that the Tribunal's reasons revealed that the primary reason for making the orders made was to punish the Builder.
The Builder submitted that the Tribunal's decision to make order 2 and 3 was not within the boundaries of a sound exercise of discretionary judgment and cannot properly be characterised as a fair and reasonable outcome.

Why leave to appeal will be refused

This ground of appeal concerns the Tribunal's decision to award the Homeowners the sum of $14,063.57 towards the costs of experts and legal advice.
Ground 2 alleges that the Tribunal failed to take into account relevant matters, or took into account irrelevant matters, and that the Tribunal's decision to award costs was outside the scope of sound discretionary judgment.
The Builder's submissions referred to four considerations that it seemed to be alleged that the Tribunal failed to take into account:
(a)first, that the Homeowners were substantially unsuccessful at trial;
(b)secondly, that the Homeowners were found to have made extravagant and unsupportable claims of loss/damage throughout the proceedings;
(c)thirdly, the Homeowners had rejected three separate offers of settlement, each of which could have resulted in a more favourable outcome than was ultimately achieved after trial; and
(d)fourthly, the Homeowners had otherwise failed to conduct their case in accordance with the statutory objective of the Tribunal to resolve cases fairly and according to their substantial merits, as speedily and with as little formality as practicable in a way which minimised the parties' costs.
It is convenient to deal with the second and fourth matters together. The second matter is the only conduct related to the fourth matter discussed in the Builder's submissions.
In the context of considering the Builder's claim for costs, the Tribunal indicated that it accepted that the claims made by the Homeowners were initially out of proportion to the remedial work required and characterised the claim as extravagant. Thus, the Tribunal expressly took this matter into account.
While it is true that the Tribunal referred to this consideration in a particular context, it does not follow that the Tribunal failed to take it into account in another context. In this regard in Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S20/2002,[19] Gleeson CJ observed that:
Decision-makers commonly express their reasons sequentially; but that does not mean that they decide each factual issue in isolation from the others. Ordinarily they review the whole of the evidence, and consider all issues of fact, before they write anything. Expression of conclusions in a certain sequence does not indicate a failure to consider the evidence as a whole. I do not think that the Tribunal member intended to convey that she made up her mind about the evidence of the applicant/appellant before taking account of the evidence of the witness who was said to corroborate him.
[19] Re Minister for Immigration and Multicultural Affairs;Ex parte Applicant S20/2002 [2003] HCA 30; (2003) 77 ALJR 1165 [14] (S20/2002).
Despite finding that the claim made was extravagant, the Tribunal made no finding that the Homeowners had failed to conduct their case in accordance with the statutory objective of the Tribunal. In my view, the latter finding does not necessarily follow from the former finding, particularly where the claim made was supported by evidence (even if that evidence was not ultimately accepted by the Tribunal, for the reasons that it gave).
The failure of the Tribunal to make such a finding can be contrasted to the Tribunal's negative assessment of the manner in which the Builder conducted its case.
While it is true that the Tribunal did not otherwise expressly address the Homeowners' conduct, the Builder made no submission to the Tribunal that the Homeowners had failed to conduct their case in accordance with the statutory objective of the Tribunal. The Tribunal would therefore not have appreciated any need to expressly address this issue.
It is not 'impossible' to see how the Tribunal ordered costs despite this finding, as the Builder asserted. The Tribunal explained its reasons.
In relation to the costs of the experts, the Tribunal accepted that the issues before the Tribunal required the Homeowners to obtain expert evidence to establish their case. The Tribunal identified a number of reasons why it was necessary for the Homeowners to obtain expert evidence including the technical nature of the issues before it, the assistance it required from the Homeowners experts, the Builder's initial reluctance to accept liability, and the need to respond to technical issues raised by the Builder's expert, Dr Zurhaar.
The legal costs related to costs incurred by the Homeowners obtaining legal advice in relation to a challenge to the Tribunal's jurisdiction that the Builder made but then withdrew. The Tribunal accepted that the Homeowners had little choice but to obtain legal advice in relation to this issue.
The Tribunal's reasoning does not appear to be unreasonable to me. On the contrary, its reasons are cogent and rational.
The Tribunal expressly addressed the third matter - the fact that the Homeowners had rejected offers of settlement. It gave five reasons why the rejection of those offers was not unreasonable. I do not consider that the Tribunal failed to properly or adequately consider the effect of the offers made, as the Builder asserted. The Tribunal gave detailed consideration to those offers.
To the extent that the Builder's complaint concerns when in the Supplementary Reasons this issue was addressed, the observations made by Gleeson CJ in S20/2002 are again relevant.
It is not correct that the Tribunal failed to explain why it was not unreasonable for the Homeowners to reject the third settlement offer. The Tribunal addressed this issue when it said that the third Calderbank offer did not account for the possibility that the Homeowners might have to vacate their home, was made after the Tribunal had delivered the Primary Reasons and assumed that the Homeowners might be required to pay the Builder's costs.
It is true that the Tribunal's reasons did not expressly address the first matter - whether the Homeowners were substantially unsuccessful at trial. This is likely because the Builder did not submit to the Tribunal that it was the successful party. It therefore may not have been evident to the Tribunal that they needed to address this issue. This is another issue that the Builder seeks to raise for the first time on appeal, although I am satisfied that it is in the interests of justice for this issue to be raised.
The legal costs awarded by the Tribunal related to a discrete issue: the Builder's challenge to the Tribunal's jurisdiction. The Builder withdrew that challenge and it was unsuccessful.
The other costs awarded were those incurred by the Homeowners engaging experts. It is evident from the Tribunal's reasons that it considered that obtaining expert evidence was necessary for the Homeowners to obtain the relief they obtained. As the Builder's submissions acknowledged, the Tribunal relied upon that evidence to make the orders it did (even if the Builder also called evidence).
Although it is true that the Homeowners did not recover as much for remediation costs as they sought, they were successful in obtaining relief against the Builder in relation to each of the complaints. The two complaints that were resolved were only resolved on the first day of hearing. The Builder had initially contested all of the claims. The Homeowners also successfully resisted Option B.
It seems to me therefore that the Homeowners were successful and that success was underpinned by the expert evidence they obtained.
The Builder submitted that the irrelevant matter that the Tribunal took into account was a desire to punish the Builder. It was submitted that on a 'fair reading' of the Tribunal's reasons this emerged as the 'primary basis' for the Tribunal's decision.
I have already discussed the Tribunal's reasons at some length. Those reasons did not include any express reference to a desire to punish the Builder. Nor does such a reason emerge on any fair reading of those reasons. These submissions have no merit.
The Builder's submissions did not meaningfully address why the Tribunal's decision was 'outside the boundaries of a sound exercise of discretionary judgment'. I am not satisfied that it was.
I am not satisfied that this ground of appeal has any merit. I will refuse leave to appeal.

Conclusion

For the reasons given above, leave should be refused and the appeal dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AB
Associate to the Hon Justice Palmer
4 SEPTEMBER 2025