SHAKUR and AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES
[2015] WASAT 31
•23 MARCH 2015
SHAKUR and AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES [2015] WASAT 31
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 31 | |
| 23/03/2015 | |||
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1700/2014 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) | 23/03/15 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs partially successful | ||
| B | |||
| PDF Version |
| Parties: | SHAHID SHAKUR KIRAN SHAHID AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES |
Catchwords: | Building Services (Complaint Resolution and Administration Act) 2011 (WA) Application for costs Principles to be applied Effect of withdrawal of application for urgent interim relief Whether application for substantive relief obviously unmeritorious Discretion Exercise of discretion Fixing of costs |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 11(1)(b) Commercial Arbitration Act 2012 (WA), s 8 Home Building Contracts Act 1991 (WA), s 17 Home Building Contracts Regulations 1992 (WA), reg 2A Legal Practitioners (State Administrative Tribunal) Determination 2012 State Administrative Tribunal Act 2004 (WA), s 47, s 90 State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42 |
Case References: | Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S) Cooper and Hegarty [2013] WASAT 82 Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 Koupatsiaris and Pepper Home Loans [2010] WASAT 146 PHQ and LPQ [2015] WASAT 5 Shakur and Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT 12 |
Orders | On the application determined on the documents by Senior Sessional Member Clive Raymond, it is on 23 March 2015 ordered that:,1. The applicants must pay the respondent's costs in respect of the proceedings from 17 November 2014, which the Tribunal fixes in the sum of $7,050, such amount to be paid on or before 15 April 2015. |
Summary | In the substantive proceedings, the parties were referred to arbitration pursuant to the provisions of the Commercial Arbitration Act 2012 (WA) and otherwise the proceedings were dismissed save in respect of costs.,The respondent applied for the costs of the proceedings and for the costs of an interim application for urgent relief which the applicants withdrew at the hearing. The total costs sought amounted to $14,659.50.,The Tribunal declined to award costs in respect of the interim application as it was not found that the applicants had acted unreasonably in any way having withdrawn the application following a practical proposal mooted by the Tribunal to assist the parties in reaching a solution to the impasse which existed. Further, the Tribunal declined to award costs in respect of a noncomplying offer to settle, which, in the public interest, was treated as a complying offer, because no viable grounds of defence had been advanced at the time of the offer.,On the same reasoning, the Tribunal declined to award costs in respect of the substantive proceedings based on the settlement offer. However, the Tribunal concluded that, properly advised, the applicants should not have pursued the substantive proceedings from the date on which the respondent made an application for the proceedings to be dismissed on the grounds that the Commercial Arbitration Act 2012 (WA) required the dispute to be referred to arbitration.,Costs were fixed in the sum of $7,050 and orders for payment were made. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : SHAKUR and AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES [2015] WASAT 31 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 23 MARCH 2015 PUBLISHED : 23 MARCH 2015 FILE NO/S : CC 1700 of 2014 BETWEEN : SHAHID SHAKUR
- KIRAN SHAHID
Applicants
AND
AINTREE HOLDINGS PTY LTD T/A BEAUMONDE HOMES
Respondent
Catchwords:
Building Services (Complaint Resolution and Administration Act) 2011 (WA) Application for costs Principles to be applied Effect of withdrawal of application for urgent interim relief Whether application for substantive relief obviously unmeritorious Discretion Exercise of discretion Fixing of costs
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 11(1)(b)
Commercial Arbitration Act 2012 (WA), s 8
Home Building Contracts Act 1991 (WA), s 17
Home Building Contracts Regulations 1992 (WA), reg 2A
Legal Practitioners (State Administrative Tribunal) Determination 2012
State Administrative Tribunal Act 2004 (WA), s 47, s 90
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42
Result:
Application for costs partially successful
Summary of Tribunal's decision:
In the substantive proceedings, the parties were referred to arbitration pursuant to the provisions of the Commercial Arbitration Act 2012 (WA) and otherwise the proceedings were dismissed save in respect of costs.
The respondent applied for the costs of the proceedings and for the costs of an interim application for urgent relief which the applicants withdrew at the hearing. The total costs sought amounted to $14,659.50.
The Tribunal declined to award costs in respect of the interim application as it was not found that the applicants had acted unreasonably in any way having withdrawn the application following a practical proposal mooted by the Tribunal to assist the parties in reaching a solution to the impasse which existed. Further, the Tribunal declined to award costs in respect of a noncomplying offer to settle, which, in the public interest, was treated as a complying offer, because no viable grounds of defence had been advanced at the time of the offer.
On the same reasoning, the Tribunal declined to award costs in respect of the substantive proceedings based on the settlement offer. However, the Tribunal concluded that, properly advised, the applicants should not have pursued the substantive proceedings from the date on which the respondent made an application for the proceedings to be dismissed on the grounds that the Commercial Arbitration Act 2012 (WA) required the dispute to be referred to arbitration.
Costs were fixed in the sum of $7,050 and orders for payment were made.
Category: B
Representation:
Counsel:
Applicants : Dr J Hockley
Respondent : Mr W Vogt
Solicitors:
Applicants : Shahid Shakur
Respondent : Vogt Graham Lawyers
Case(s) referred to in decision(s):
Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S)
Cooper and Hegarty [2013] WASAT 82
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
Koupatsiaris and Pepper Home Loans [2010] WASAT 146
PHQ and LPQ [2015] WASAT 5
Shakur and Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT 12
Introduction
1 On 1 December 2014, the Tribunal issued an order referring the parties to arbitration and otherwise dismissing the proceedings pursuant to s 47 of the State Administrative Act 2004 (WA) (SAT Act). The Tribunal's reasons for decision were published under the citation Shakur and Aintree Holdings Pty Ltd T/A Beaumonde Homes [2015] WASAT 12 (substantive decision). An application for costs by the respondent was programmed providing for the filing of submissions and, subject to further order, determination of the costs application on the documents. That course has been duly followed and the Tribunal's reasons in respect of the costs application follow.
2 Both parties have filed extensive submissions dealing with the question of costs. The respondent's submissions address only the principle of whether costs should be ordered or not. The quantum of costs claimed is not challenged in any respect.
3 The respondent has applied separately for costs in respect of an interim application for urgent relief which the applicant withdrew at the interim hearing on 17 November 2014, and, for the costs of the substantive proceedings which were dismissed as described above. The costs claimed in respect of the interim application total $4,212.50 and the costs claimed in respect of the substantive application total $10,447.
Background
4 The parties entered into a contract for the construction of a dwelling house for the applicants at 1 Cable Cove, Mosman Park. The contract price of $1,300,832 exceeds the maximum jurisdictional limit under the Home Building Contracts Act 1991 (WA) (HBC Act) of $500,000 as prescribed under the Home Building Contracts Regulations 1992 (WA) by reg 2A.
5 The respondent contends that practical completion of the construction of the dwelling was achieved on 14 August 2014 (see the letter from the respondent's legal practitioner dated 1 October 2014). The applicants dispute that practical completion has been achieved. They gave notice that they proposed to make a complaint to the Building Commissioner under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), and on 14 October 2014, a complaint was duly lodged. A complaint fee of $102.50 was paid, apparently in cognisance of a note within the complaint form that if both a building service complaint and a home building work contract complaint were being made, a fee is required for both types of complaint of $102.50 instead of $51.25 for a complaint under only one of these bases. A schedule to the complaint initially listed three complaint items relating to:
1) taps having been allegedly installed in the wrong position in four bathrooms, not in conformity with the building plans and industry standards;
2) other remedial works as in 'the independent report'; and
3) quantum of final payment.
6 Subsequently, the complaint items were further particularised and described as five separate complaint items. The complaint in relation to the quantum of the final payment was not pursued, apparently in recognition of the inability of the Building Commissioner to deal with a contractual dispute. In relation to all complaint items, the remedy sought was for the respondent to carry out remedial work.
7 Prior to the lodgement of the complaint, and in response to the notice of proposed complaint, the respondent, by a letter from its legal practitioner dated 1 October 2014, disputed the complaints relating to building defects. The letter also responded to a letter from the applicants dated 23 September 2014 in which they had advanced claims for delay damages, compensation for the owners' time spent in relation to the dispute, and compensation for stress, frustration, anguish, inconvenience, loss of amenity, and non-pecuniary loss. The respondent disputed that these claims could be advanced by the applicants and set out legal argument in support of this view. In addition, the letter drew to the applicants' attention that clause 16 of the building contract contained a dispute resolution provision which, it was asserted, obliged the parties to defer any dispute arising under or in connection with the contract to arbitration. Specific reference was made to s 8 of the Commercial Arbitration Act 2012 (WA) (CA Act) and to clause 16 of the contract which contained the arbitration agreement in relation to which it was submitted that the provision obliges the parties to refer any dispute arising under or in connection with the contract to arbitration. It was concluded that, accordingly, the dispute must be arbitrated and requires an arbitrator. A notice of dispute was attached to the letter to the effect that if the dispute was not resolved within five days, it would be referred to arbitration.
8 By letter from its legal practitioner dated 8 October 2014, the respondent gave the applicants notice of breach under the contract requiring a payment of $225,910 on or before 20 October 2014.
9 As dealt with in the substantive decision, all matters in dispute between the parties (except item 5) were referred to arbitration. Item 5 had not been referred to in the notice of proposed complaint. Prior to lodging the complaint, and as referred to in the complaint schedule, the applicants had provided an independent building inspection report. This was a voluminous document which raised a significant number of issues, many of which were stated to require further investigation. The effect of the inspection report is a matter also discussed in the substantive decision.
10 By letter of 4 November 2014 from its legal practitioner, the respondent wrote to the first-named applicant, who is himself a legal practitioner, and who represented both himself and his wife in the proceeding. The purpose of the letter was to request the applicants to discontinue the complaint before any further costs were incurred by the parties. In this letter, the respondent contended that:
a) items 1 to 4 of the complaint schedule should be dismissed on the basis that the Building Commission does not have jurisdiction to deal with a dispute between the parties that is contractual in nature, in circumstances where the building contract price exceeds $500,000;
b) item 5 of the complaint schedule must be dismissed on the basis that item 5 was not included as a complaint item in the complainant's notice of proposed complaint and reference was made to a previous decision of the Tribunal - Cooper and Hegarty [2013] WASAT 82 (Cooper) at [49] to [60]. The letter proceeded to set out a commercial proposal, based on various decisions of the Tribunal dealing with costs, which concluded in the following terms:
…
11) I am instructed to seek full recovery of my client's costs from the owners in the event that the complaint proceeds and is dismissed, which is self-evidently likely.
12) My clients reserve the right to bring this letter to the attention of the Commission on any question of costs that may arise in the complaint.
13) I invite the owners to accept that the complaint is obviously unmeritorious and discontinue the complaint.
14) Please provide me with your response to this letter on or before Thursday, 25 November 2014.
Principles in respect of costs
12 The respondent has set out in some length in its submission references to various cases in the Tribunal addressing the principles to be applied in a range of circumstances. One of the cases referred to, and which is sufficient for all practical purposes, is Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 (D'Vinci Contracting) which summarises the principles for the award of costs generally applying in the Tribunal and deals specifically with the costs regime applying in respect of matters dealt with by the Tribunal under the BSCRA Act. D'Vinci Contracting recognises that amongst the range of factors that contribute towards the Tribunal making a costs order are where a party conducts itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party, where the case (of the party against whom costs are sought) is weak, or obviously unmeritorious.
The interim application
13 The applicants applied for the following interim orders:
1) The applicants be at liberty to proceed with the remedial work as recommended by Mr Peter Mills of Lavare Bathroom, Claremont with regard to fixing the positions of the bench taps in the four bathrooms (to enable the home owners to move in and install soft furnishings).
2) Arrangements to be made by the parties in the next seven days for 'Pre-Handover Inspection'.
3) The respondent to provide to the applicants on or before 11 November 2014 details of which of the building defects set out in the Bestwest Building Pty Ltd's Independent Building Inspection Report dated 16 September 2014 had been rectified.
4) On or before 14 November 2014, the respondent to file with the Tribunal and serve a copy on the applicants a statement setting out its response to each of the complaints set out in the complaint filed by the applicants with the Building Commission on 14 October 2014.
14 The grounds of the application were that the making of an interim order would result in an overall saving to both parties because: the applicants were renting accommodation waiting for practical completion and the respondent was 'waiting on practical completion in order to be paid'; the issue of practical completion, once resolved, would go a long way to settling the dispute; and, the respondent had declined to negotiate and the interim hearing would 'no doubt trigger dialogue which would assist resolution' of the case. An affidavit in support was filed by Mr Shahid Shakur, the first-named applicant, in which, in turn, reference is made to affidavits of himself and of his wife which had been lodged with the Building Commission.
15 The relief sought is of an unusual nature. It required the Tribunal to effectively grant a mandatory injunction enabling the applicants to have access to the premises, at a time when under the contract the respondent was entitled to possession.
16 As the Tribunal has no general power to issue orders of an injunctive nature under the applicable enabling Act - namely, the BSCRA Act - the relief sought could only be provided by a judicial member of the Tribunal exercising power under s 90 of the SAT Act. Accordingly, the Tribunal was constituted for the purposes of the interim hearing by Judge Sharp, Deputy President of the Tribunal, and myself, then sitting as a full-time senior member. At an early stage in the hearing of the interim application, the Tribunal mooted why, having regard to the dispute as a whole, it would not benefit the applicants to make payment of the alleged outstanding sum under protest and take possession of the works. This appeared to the Tribunal to be a practical way of resolving the issue, particularly as the form of the inspection report was such that there was considerable room for dispute and uncertainty about what was or was not alleged to be defective work. Counsel representing the applicants took instructions and the applicants agreed to follow that course, rather than pursue the interim relief sought. The applicants were granted leave to withdraw the interim application and it was ordered that the application is withdrawn and the question of costs reserved.
17 The respondent effectively argues that costs should be awarded to it in respect of the interim application on a general application of the costs principles expounded in various decisions of the Tribunal and on the basis that its letter of 4 November 2014 constituted an offer to settle in compliance with r 40 and r 41 of the State Administrative Tribunal Rules 2004 (WA) (Rules), which the Tribunal is obliged to take into account in accordance with r 42.
18 The general grounds relied on are effectively that it was unreasonable for the applicants to make an application for interim relief and then withdraw it without any prior notice to the respondent, which therefore had to incur unnecessary costs, and also because the entire proceeding was unmeritorious, of which the applicants had been forewarned by the respondent's letters referred to above.
19 It is true that the letter of 1 October 2014, which had attached to it a notice of dispute of the same date, referring all of the applicants' identified claims to arbitration, put forward arguments as to why the applicants had difficulties with the merits of their claims. It also raised the effect of s 8 of the CA Act. Those were matters which would have to be addressed by the applicants but the affidavit evidence shows that they clearly held the view that the installation of the taps in the four bathrooms constituted defective workmanship. That, and the other building defects raised, cannot be said to be obviously unmeritorious, and the Building Commission had jurisdiction in relation to those matters. Clearly, the referral of the dispute to arbitration had the potential to prevent the dispute proceeding before the Building Commission or this Tribunal, but unless and until it became obvious that an application would be made to dismiss the proceedings, I do not think it can be said that the applicants acted unreasonably in proceeding. No such application had been made at the time when the proceedings were transferred to the Tribunal by the Building Commissioner pursuant to s 11(1)(b) of the BSCRA Act, nor by the time when the interim application had been made to the Tribunal.
20 In the later letter of 4 November 2014, the respondent motivated its argument that the Building Commission lacked jurisdiction on two grounds.
21 The first ground was that items 1 to 4 of the complaint schedule should be dismissed on the basis that the Building Commission does not have jurisdiction to deal with a dispute between the parties that is contractual in nature and in circumstances where the building contract price exceeds $500,000. The respondent relied on this issue at the hearing of the application but did not press it as a result of exchanges with the Tribunal. The Tribunal pointed out that the interaction of s 17 of the HBC Act, read with s 5 of the BSCRA Act, is such that a claim for breach of contract for failing to carry out the work in a proper and workmanlike manner cannot be pursued as a contractual claim and must be advanced as a claim under s 5 of the BSCRA Act on the grounds that a regulated building service has not been carried out in a proper and proficient manner or is faulty or unsatisfactory. This criticism and basis for supporting the commercial proposal contained in the letter is therefore wrong.
22 The second basis on which the jurisdiction was challenged was that item 5 of the complaint schedule must be dismissed because item 5 was not included as a complaint item in the complainant's notice of proposed complaint in accordance with the principles set out in Cooper, to which reference has been made above. Again, this criticism and basis for supporting the commercial proposal which followed is wrong, as the Tribunal found in the substantive decision, to which reference is made for the Tribunal's reasons, including that Cooper was wrongly cited and that the Tribunal had jurisdiction in respect of complaint item 5.
23 It follows that the applicants did not act unreasonably, nor was the claim unmeritorious, in relation to the jurisdictional issues raised by the respondent.
24 The Tribunal has often awarded costs against a party in circumstances where the party has been alerted at some stage of the proceedings to a jurisdictional or other insurmountable difficulty, but nevertheless persists with the proceedings: see, for instance, Koupatsiaris and Pepper Home Loans [2010] WASAT 146 and PHQ and LPQ [2015] WASAT 5. The corollary to that is that if a party recognises such a difficulty at an early stage after the issue has been raised, costs will generally not be awarded against that party. Insofar as the interim application is concerned, the merits were never fully argued and the applicants responded immediately to a proposition advanced by the Tribunal, which resulted in the interim application being withdrawn.
25 In these circumstances, insofar as the respondent relies on general costs principles as applied by the Tribunal, I decline to award costs in favour of the respondent.
26 The question remains whether the respondent should be entitled to costs in respect of the interim application because of the effect of the letter dated 1 November 2014 and the offer of settlement contained within it.
27 I do not accept that the offer was one which complies with r 40 and r 41 of the Rules. Those Rules require that the offer be made in relation to a proceeding that is before the Tribunal (r 41). However, I do not consider that non-compliance is of any significance. As held in Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S), it is in the public interest that non-complying offers of settlement be given consideration. I consider that in practical terms the offer of settlement should be regarded as having been made to settle the proceedings before the Tribunal. However, at the stage of the interim application, the respondent had not put forward any defence on which it subsequently succeeded in the substantive proceedings. In the letter of 1 October 2014, the respondent had referred to s 8 of the CA Act but had wrongly submitted that it obliged the parties to refer the dispute to arbitration. Clause 16 of the contract between the parties contained no such obligation, but gave either party the right to refer the matter to arbitration if it wished to do so.
28 At the time when the offer was made, the applicants' prospect of success in relation to the defective work items was unaffected by any of the issues raised by the respondent. I consider it was reasonable for the applicants to not accept the offer of settlement in those circumstances.
29 Taking into account all of the above considerations, I do not consider that the justice of the case requires that the respondent be awarded costs in respect of the interim application.
The substantive proceedings
30 The basis upon which the substantive proceedings were dismissed is set out in the substantive decision to which reference has already been made and which I incorporate by reference.
31 The basis upon which the respondent contends it should be awarded costs is the same as in respect of the interim application.
32 Insofar as the respondent relies on the letter of 4 November 2014 setting out the offer of settlement, I do not consider that costs should be awarded to the respondent based thereon, for the reasons given above in respect of the interim application. However, I consider that the respondent should be awarded costs as from the date on which they articulated an oral application to apply for dismissal of the proceedings. The basis of that application was incorporated in the directions orders made by the Tribunal on 17 November 2014. The application for dismissal was made on two grounds. The first ground related to item 5 and the Cooper decision which was misfounded as discussed above. The second basis for the application was the reliance on the effect of the CA Act read with clause 16 of the contract. It was on this aspect that the respondent succeeded. Properly advised, the applicants should have realised at that stage that there was a significant risk that the Tribunal would find that it was an abuse of process to litigate defective workmanship complaints before the Tribunal while pursuing breach of contract claims in the arbitration. It should have been obvious, if it was not already so prior to this date, that the contractual claims could not be pursued before the Building Commissioner or the Tribunal.
33 In coming to the conclusion that costs should be awarded, I have taken into account all of the submissions made on behalf of the applicants. My above findings with regard to the effect of the letters of 1 October and 4 November 2014 are very much consistent with those submissions. I accept that the applicants generally acted reasonably and appropriately as submitted in those submissions, but only to the point when the application for dismissal had been formulated as outlined above. I do not accept the criticisms made of the respondent's conduct to the effect that the respondent manifestly lacked interest in expeditious resolution of the complaint and caused delays. To the contrary, the respondent raised the matters which it did with a view to attempting to influence the applicants to pursue arbitration from the outset. While that may have been viewed as an attempt to delay pursuit of the complaint, properly advised, I consider that the applicants should have come to a realisation that it was better to pursue all of their claims in the one forum that would have jurisdiction to deal with them.
34 I also do not accept the submissions attempting to draw various distinctions in relation to the reported decisions which were relied upon by the respondent. The general principles applicable to costs in building cases are summarised in the D'Vinci Contracting matter, and it is those principles which I have applied.
Assessment of costs
35 As already mentioned, the applicants have not criticised the quantum of costs claimed. The costs, of course, have, in any event, been assessed by the Tribunal.
36 It is not necessary to make any assessment in respect of the interim application costs claim for the reasons given above.
37 In relation to the substantive proceedings, I have found that costs should be awarded as from the date on which the application for dismissal was made - namely, 17 November 2014. The applicant has claimed costs at a rate which is within the maximum allowed pursuant to the Legal Practitioners (State Administrative Tribunal) Determination 2012 (2012 Determination) which applied to 31 December 2012 when the current determination came into effect. In addition, the respondent has discounted the maximum rate by 10%, asserting that 90% of that maximum charge should be allowed because of the complexity of the matter and the importance to the client. Apart from the issues which arose in relation to the proper construction and application of the CA Act, I do not consider that the matters raised were particularly complex. I accept that the matter has been generally conducted efficiently, subject to one area of exception referred to below.
38 Taking into account all factors, namely, the complexity of the matter, the importance of the subject matter to the respondent, the nature of the proceedings and the work necessary to conduct the proceedings efficiently in a manner which minimises costs to the parties, I consider that the appropriate rate at which costs should be allowed is 80% of the maximum set out in the 2012 Determination to which I have referred. That maximum rate is $374 per hour inclusive of GST in respect of a senior practitioner – that is, a practitioner who has been admitted for five years or more. The work in question was carried out by a senior practitioner. Eighty per cent of that rate equates to a rate of, effectively, $300 per hour as opposed to the rate claimed of 90% of the allowance, which is, effectively, $337 per hour.
39 The total number of hours is claimed in respect of the substantive proceedings is 31.5 hours. A total of seven hours claimed in respect of attendances prior to 17 November 2014, and the costs in respect thereof, are disallowed.
40 The exception referred to relates to the drafting of submissions in support of the application for costs in respect of which a total of six hours is claimed.
41 In my view, the submission in respect of costs is more comprehensive than was needed. In addition, the respondent has not succeeded on all aspects of the application. I consider that the time allowed in respect of the costs application should be reduced by one hour. In the result, the total number of hours allowed for the attendances which are recoverable equals 23.5 hours, which, at a rate of $300 per hour inclusive of GST, equates to $7,050.
Conclusion and orders
42 For the above reasons, an order will issue as follows:
1. The applicants must pay the respondent's costs in respect of the proceedings from 17 November 2014, which the Tribunal fixes in the sum of $7,050, such amount to be paid on or before 15 April 2015.
I certify that this and the preceding [42] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR C RAYMOND, SENIOR SESSIONAL MEMBER
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