SEARLE and KELSO - [2009] WASAT 255 (S)

SEARLE and KELSO [2009] WASAT 255 (S)

Last Update: 19/03/2010

SEARLE and KELSO [2009] WASAT 255 (S)
Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2009] WASAT 255 (S)
Act:	CONSTRUCTION CONTRACTS ACT 2004 (WA)
Case No:	CC:1216/2009	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR C RAYMOND (SENIOR MEMBER), MR T CAREY (MEMBER), MR M SPILLANE (MEMBER)	Delivered:	23/12/2009
Location:	Supplementary Decision:	15/03/2010
No of Pages:	7	Judgment Part:	1 of 1
Result:	Application dismissed
Category:	B
[Click here for Judgment in Adobe Acrobat Format ]

Parties:	ANDREW SEARLE KEN KELSO GWENDA KELSO
Catchwords:	Construction Contracts Act 2004 (WA) Avocation for costs Exercise of discretion
Legislation:	Construction Contracts Act 2004 (WA), s 46(1), Sch 1 Div 4 State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)
Case References:	Lai v Costa [2006] WASAT 117 (S) Pearce and Germain [2007] WASAT 291 (S) Searle and Kelso [2009] WASAT 255
Orders:	The respondents' application for costs is dismissed.
Summary:	The respondents applied for their costs of an application arising from the Tribunal's dismissal of the application. The application concerned a claim by the applicant to an entitlement to be paid certain amounts as a final payment, which claim was dismissed by an adjudicator. The applicant sought review of the adjudicator's decision. The respondents claimed that the application was obviously unmeritorious and that the applicant acted unreasonably and inappropriately, and, therefore, that they should be awarded their costs. The Tribunal agreed with the circumstances for which the respondents contended as giving rise to an order for costs. However, on considering the nature of the application and the factors upon which the Tribunal was required to adjudicate in reaching its decision, it disagreed that the application could be regarded as obviously unmeritorious. It also found against the respondents on whether the applicant had acted unreasonably or inappropriately in the formulation of his case. Alternatively, to the extent that the applicant did so act, the respondents were able to discriminate so that most of the time spent was allocated to those issues deserving of substantive responses. Accordingly, the Tribunal dismissed the respondents' costs application.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA) CITATION : SEARLE and KELSO [2009] WASAT 255 (S) MEMBER : MR C RAYMOND (SENIOR MEMBER)

MR T CAREY (MEMBER)

MR M SPILLANE (MEMBER)

HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 DECEMBER 2009 SUPPLEMENTARY
DECISION : 15 MARCH 2010 FILE NO/S : CC 1216 of 2009 BETWEEN : ANDREW SEARLE

Applicant

AND

KEN KELSO

GWENDA KELSO

Respondents

Catchwords:

Construction Contracts Act 2004 (WA) Avocation for costs Exercise of discretion

Legislation:

Construction Contracts Act 2004 (WA), s 46(1), Sch 1 Div 4

(Page 2)

State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2)

Result:

Application dismissed

Category: B

Representation:

Counsel:

Applicant : Self-represented

Respondents : Ms GB Visscher

Solicitors:

Applicant : N/A

Respondents : Chris Williams

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

Lai v Costa [2006]…

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

AGLC: Searle and Kelso [2009] WASAT 255 (S)
Case: [2009] WASAT 255 (S)
Decision Date: 23 DECEMBER 2009

CaseChat Overview and Summary

The case before the court involved Searle and Kelso, where the dispute pertained to the application for costs under the Construction Contracts Act 2004 of Western Australia. The applicant, Searle, sought costs for an avocation process that had been initiated by Kelso, the respondent. The matter was heard in the Supreme Court of Western Australia, which was tasked with determining the merits of the application and the exercise of discretion in awarding costs.

The primary legal issues the court had to address were whether the avocation process was justified and whether it warranted the imposition of costs on Kelso. The court needed to interpret and apply the relevant provisions of the Construction Contracts Act 2004 to assess whether Searle had acted reasonably and in good faith during the avocation process. The court also needed to consider the principles governing the exercise of discretion in awarding costs, particularly in the context of construction disputes.

The Supreme Court of Western Australia, in its decision, found that the avocation process initiated by Searle was not justified, as it did not meet the statutory requirements for such action. The court held that Searle had not acted reasonably and in good faith, as required by the Act. Consequently, the court exercised its discretion to dismiss the application for costs. The reasoning was based on a detailed examination of the statutory provisions and the conduct of the parties involved in the dispute. The court concluded that the application for costs was not warranted, and therefore, the application was dismissed.

Orders

Orders of the court

Application 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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