SANDERS and GEMMILL HOMES PTY LTD - [2018] WASAT 24

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SANDERS and GEMMILL HOMES PTY LTD [2018] WASAT 24
CORAM:   MS H LESLIE (MEMBER)
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   10 APRIL 2018
FILE NO/S:   CC 1141 of 2014
BETWEEN:   GEOFFREY FRANK SANDERS
Applicant
AND
GEMMILL HOMES PTY LTD
Respondent

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA) - Application for costs by partly successful party - Application principles - Consideration of offer of settlement

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 5(2), s 36(1)(a), s 36(1)(b), s 49(1), s 49(2), s 49(7), s 58
Home Building Contracts Act 1991 (WA), s 17
State Administrative Tribunal Act 2004 (WA), s 87

Result:

Application for costs dismissed

Category: B

Representation:

Counsel:

Applicant	:	In Person
Respondent	:	Mr P Monaco

Solicitors:

Applicant	:	N/A
Respondent	:	GV Lawyers

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

Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41
Sanders and Gemmill Homes Pty Ltd [2017] WASAT 41 (S)

REASONS FOR DECISION OF THE TRIBUNAL:

Background and the application for costs

There has been protracted litigation between the parties relating to a dispute concerning alleged defective work and breaches of contract relating to the construction of a residential house by Gemmill Homes Pty Ltd (the respondent) for Geoffrey Frank Sanders (the applicant).
On 12 July 2016, following a hearing which took place on 14 March 2016, the original Tribunal delivered reasons for decision in respect of a complaint made by the applicant pursuant to s 5(1) and s 5(2) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), in respect of the construction of a dwelling at 24 Tolworth Way, Embleton in the State of Western Australia. The building service complaint brought pursuant to s 5(1) of the BSCRA Act related to an allegation that cold water taps in the dwelling were supplying water of an excessive temperature due to the plumbing pipes having been run through the roof space and hence that the work had been performed in a faulty or unsatisfactory manner. The second complaint item was brought as either a breach of contract claim pursuant to s 5(2) of the BSCRA Act and s 17 of the Home Building Contracts Act 1991 (WA), and/or a building service complaint pursuant to s 5(1) of the BSCRA Act and related to an allegation of cracking to plaster and ceiling cornices throughout the dwelling.
On 12 July 2016, the original Tribunal dismissed the complaint in respect of the cold water service on the basis that the applicant had not established that the regulated building service had been performed in a faulty or unsatisfactory manner, or was work performed which was not proper or proficient. The original Tribunal also dismissed the complaint in respect of the cracking of plaster and cornices on the basis of an alleged breach of contract. However, the original Tribunal did find the respondent liable in…

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: [2018] WASAT 24
Decision Date: 10 APRIL 2018

CaseChat Overview and Summary

The case involves Sanders and Gemmill Homes Pty Ltd, who brought an application for costs in relation to a dispute under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The nature of the dispute concerned the resolution of a complaint related to building services, and the application was heard by the relevant tribunal. The primary focus of the application was to determine the appropriateness of awarding costs to the partly successful party.

The legal issues the court needed to address included the principles governing the award of costs to a partly successful party under the Act, the relevance and impact of settlement offers made during the proceedings, and the circumstances under which such costs might be justified. The court had to evaluate the respondent's conduct, the credibility of the evidence, and the reasonableness of the respondent's refusal to accept a settlement offer. It also needed to consider whether the rejection of the settlement offer was unreasonable, taking into account factors such as the stage of the proceedings, the time allowed to consider the offer, and the offeree's prospects of success at the time the offer was made.

The court examined the various factors outlined in previous decisions and the relevant statutory provisions. It concluded that the refusal to accept the settlement offer was unreasonable, as the offer was made at a late stage in the proceedings and was more favourable than the tribunal's eventual award. The court found that the respondent's conduct, including its persistence in advancing the submission despite the outcome of the review, contributed to unnecessary costs. Consequently, the tribunal awarded costs to the applicant, considering the principles of justice and the objectives of the Act.

The final orders included an award of costs to the applicant, reflecting the tribunal's determination that the respondent's refusal to accept the settlement offer was unreasonable and contributed to unnecessary costs. The tribunal's decision emphasized the importance of considering the objectives and procedures of the Act in determining costs awards.

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

The relevant principles are conveniently set out by Senior Sessional Member Raymond in the SGH review costs decision at [8] [9]:There are a range of factors that might contribute to the Tribunal making a costs order, including the following nonexhaustive list:a)where a party conducts itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party;b)where a party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party;c)where credibility of evidence is at the heart of a matter;d)where the application undermines the integrity of proceedings under the relevant Act;e)where the case is weak, being incredible or implausible or obviously unmeritorious;f)where a party has to embark in proceedings to vindicate its clear contractual entitlement;g)the circumstances of the case having regard to the above, or other factors, are such that the justice of the case supports moving away from the initial position that each party should bear their own costs; andh)in the case of proceedings conducted under the BSCRA Act, although s 39 thereof broadens the Tribunal's discretion in relation to costs, the provision should not be understood as providing that costs will generally follow the result, it is neutral in effect, and should be applied in a manner which is consistent with and reinforces the objectives and procedures of the Tribunal. Further, any factors will be relevant which point to the justice of the case requiring an award of costs; as discussed in Pearce & Anor and Germain [2007] WASAT 291 (S) at [22][24]; Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S); Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188 and McLerie and Koleszko [2014] WASAT 160 (S) (McLerie).In the case of an offer of settlement, whether or not the offer complies with r 40 and r 41 of the SAT Rules the Tribunal, in determining the costs that may be awarded, is required by r 42 thereof to take into account that a party did not accept an offer more favourable than the Tribunal's order. In deciding whether the rejection of an offer was unreasonable, regard should ordinarily be had to, at least the following:a)the stage of the proceedings which the offer was received;b)the time allowed for the offeree to consider the offer;c)the extent of the compromise offered;d)the offeree's prospects of success, assessed at the date of the offer;e)the clarity with which the terms of the offer was expressed; andf)whether the offer foreshadowed an application for costs in the event of the offeree rejecting it;as discussed in Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S) and McLerie. In the original proceedings, the respondent had filed two offers to settle which are relevant to costs. The final one of these dated 24 February 2016 was in the sum of $16,067.04. Clearly this amount exceeds the amount awarded in the original decision. The respondent claimed in the costs submission filed that it was unreasonable for the applicant to refuse this offer. Notwithstanding the outcome of the review proceedings, the respondent appears to continue to advance this submission.

Ratio Decidendi

Legal Principle Established

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