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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2025] WASC 370
Decision Date: 4 SEPTEMBER 2025

CaseChat Overview and Summary

The case of Riviera Homes (WA) Pty Ltd v Mathew involved an appeal from a decision of the State Administrative Tribunal of Western Australia to order costs. The dispute centred on whether the Tribunal had acted beyond its authority by ordering costs, whether it had failed to consider relevant factors, and whether it had ordered costs as a punitive measure. The appeal was heard in the Supreme Court of Western Australia.

The key legal issues the court had to decide were whether the Tribunal had acted beyond its authority by ordering costs, whether it had failed to take into account relevant considerations, and whether it had ordered costs to punish the appellant. The court had to examine the Tribunal's reasoning and whether it was rational and supported by the evidence. The court also needed to determine if the Tribunal's decision to order costs was appropriate in the circumstances.

The court found that the Tribunal had not acted beyond its authority by ordering costs. It was clear that the Tribunal had considered the relevant evidence and had provided cogent and rational reasons for its decision. The court rejected the argument that the Tribunal had failed to take into account relevant considerations, noting that the Tribunal had considered the evidence as a whole, not in isolation. The court also found that the Tribunal had not ordered costs to punish the appellant but had done so because the issues required expert evidence and legal advice. The court held that the Tribunal's decision was not unreasonable and was supported by the evidence.

The court dismissed the appeal, upholding the Tribunal's order for costs. The Tribunal's decision to order costs was affirmed, and the appeal was unsuccessful.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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.