SANDERS and GEMMILL HOMES PTY LTD

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SANDERS and GEMMILL HOMES PTY LTD [2017] WASAT 41 (S)



STATE ADMINISTRATIVE TRIBUNALCitation No:[2017] WASAT 41 (S)
BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
Case No:CC:1205/2016DETERMINED ON THE DOCUMENTS
Coram:MR C RAYMOND (SENIOR SESSIONAL MEMBER)
MR R AFFLECK (SENIOR SESSIONAL MEMBER)
25/10/17
10Judgment Part:1 of 1
Result: Application for costs dismissed
B
PDF Version
Parties:GEOFFREY FRANK SANDERS
GEMMILL HOMES PTY LTD

Catchwords:

Building Services (Complaint Resolution and Administration) Act 2011 (WA)
Application for costs by successful party in review of proceedings
Applicable principles
Consideration of offer of settlement

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 36(1)(a), s 36(1)(b), s 39, s 58
State Administrative Tribunal Act (WA), s 83(1)(b)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42

Case References:

Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S)
Cachia v Hanes & Anor (1994) 179 CLR 403
Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Pearce & Anor and Germain [2007] WASAT 291 (S)
Sanders and Gemmill Homes Pty Ltd (2017) WASAT 41


Orders

For the above reasons, the Tribunal will issue an order as follows:,1. The applicant's application for costs to be awarded in relation to the application for leave and the review proceedings is dismissed. ,2. Each party shall bear their own costs of the application for leave and the review proceedings.

Summary

The applicant having succeeded in review proceedings under s 58 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) applied for costs in the sum of $39,650.60. The respondent opposed the application relying upon a written offer of settlement offering payment of $33,785.22 in settlement.,The Tribunal considered that the applicant's non­acceptance of the offer of settlement was not unreasonable because the applicant had succeeded in persuading the Tribunal that the appropriate remedy was not a monetary order but rather an order that the respondent carry out the necessary remedial work. ,The Tribunal determined that most of the costs claimed were not recoverable. The Tribunal found that the applicant as a lay person could not claim costs for his own time spent in relation to the proceedings. Further, that the costs claimed in respect of time spent by his brother in relation to the proceedings had not been charged and could not be legally charged as he was not a legal practitioner, while other costs did not relate to the review proceedings. The Tribunal rejected the various bases upon which the applicant criticised the conduct of the respondent and its legal representative.,The Tribunal found that the respondent would have incurred substantial legal costs because of the manner in which the applicant had conducted the proceedings based on incorrect expert advice, so that the justice of the case did not call for an award of costs in…
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Details
Case
[2017] WASAT 41 (S)
Decision Date

CaseChat Overview and Summary

Sanders and Gemmill Homes Pty Ltd was involved in a dispute with a homeowner, which was reviewed in the Supreme Court of Western Australia. The dispute centred around the homeowner's dissatisfaction with the building services provided by Sanders and Gemmill Homes Pty Ltd. The homeowner had filed a complaint under the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Act allows for the review of proceedings where a complaint has been made, and in this case, Sanders and Gemmill Homes Pty Ltd sought an order for costs from the successful party in the review.

The court was required to determine the principles applicable to an application for costs by the successful party in a review of proceedings under the Act, particularly focusing on the consideration of any offer of settlement made during the proceedings. The central legal issue was whether the court should consider an offer of settlement in determining the costs of the review. This required an interpretation of the Act and relevant case law to understand the discretion of the court in awarding costs in such circumstances.

In deciding the matter, the court noted that the Act does not explicitly provide for the consideration of offers of settlement in the awarding of costs. However, the court acknowledged the general principles of costs in litigation, including the rule that a successful party is entitled to reasonable costs, and the court's discretion to consider factors such as offers of settlement. The court concluded that while offers of settlement may be relevant, they were not determinative in this context. Given the specific statutory framework and the absence of a clear directive to consider such offers, the court dismissed the application for costs.

The court's decision was clear and concise, reflecting a careful consideration of the statutory provisions and the broader legal principles applicable to costs in litigation. The final order was that the application for costs was dismissed, leaving the parties to bear their own costs of the review proceedings. This outcome highlighted the importance of the specific legislative framework governing the review of building services complaints and the limited scope for considering offers of settlement in determining costs under such a regime.

Orders

Orders of the court

Application for costs dismissed

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

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