| JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL STREAM : COMMERCIAL & CIVIL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : SINCLAIR and TREPTOW [2013] WASAT 54 MEMBER : MR S ELLIS (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 18 APRIL 2013 FILE NO/S : CC 39 of 2013 BETWEEN : ROBERT SINCLAIR JASMINA SINCLAIR
Applicants
AND
SHANE TREPTOW
EBONY KATE TREPTOW
Respondents
Catchwords: Costs Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49
Legislation: Building Services (Complaint Resolution and Administration) Act2011 (WA), s 38, s 49
Legal Profession Act 2008 (WA), s 12(2), s 12(4)
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State Administrative Tribunal Act 2004 (WA), s 39(2) Result: Costs order made
Summary of Tribunal's decision: This is the determination of an application by the applicants for an order for costs under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The applicants claimed $2,750 (including GST). The Tribunal determined that it was appropriate for an order to be made in favour of the applicants for payment of $2,112.
Category: B
Representation: Counsel:
Applicants : Self-represented
Respondents : Self-represented
Solicitors:
Applicants : N/A
Respondents : N/A
Case(s) referred to in decision(s):
Hoskings v Daniel Vinci [2011] WASAT 188
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REASONS FOR DECISION OF THE TRIBUNAL:
Introduction 1 The applicants seek an order under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) requiring the respondents to pay their costs in relation to these proceedings totalling $2,750 (including GST), which was the amount of an invoice from Housecalls Property Inspections Pty Ltd (Housecalls). 2 This determination was made on the papers in accordance with the orders made by the Tribunal on 11 February 2013. The applicants provided a letter dated 12 February 2013, which had attached to it an invoice from Housecalls dated 8 February 2013. The respondents wrote to the Tribunal in relation to costs on 21 February 2013. The applicants replied by letter from Housecalls dated 23 February 2013.
Consideration 3 The principles applicable to an order for costs under s 49 of the BSCRA Act were considered by the Tribunal in Hoskings v Daniel Vinci[2011] WASAT 188. The Tribunal has a broad discretion under s 49 of the BSCRA Act, which will be exercised in a manner which is in accordance with and furthers the objectives of the Tribunal. 4 The respondents made two general points. 5 First, the respondents argued that no order for costs should be made because Housecalls had not intended to charge the applicants for its work in connection with the hearing. It appears, from the complaint filed at the Building Commission on 12 December 2012 and from discussion during the directions hearings in this matter, that Housecalls had inspected the property on behalf of the applicants in connection with the purchase of the property by the applicants from the respondents. The respondents were owner builders. The respondents' suggestion appears to be that Housecalls had missed the defects which were the subject of the proceedings, felt responsible for the applicants' problems and would only have invoiced when and if the proceedings were successful. 6 The Tribunal does not accept this argument. There is insufficient evidence to conclude that Housecalls did not intend to invoice. In any event, Housecalls has now invoiced. It appears that the applicants are now under a liability to pay Housecalls for its services. (Page 4)
7 Second, the respondents argued that there should be no entitlement to payment because the complaint lodged at the Building Commission sought $400 for an inspection by Housecalls in connection with the purchase and sale of the property. The complaint did not explicitly seek the costs the subject of the present application. However, the applicants are not prevented from claiming for costs in the Tribunal under s 49 of the BSCRA Act by the scope of the complaint filed in the Building Commission. 8 The Tribunal notes that the substantial matter in dispute was resolved by an order that the respondents remedy the matters the subject of the complaint. The applicants were substantially successful. It appears unlikely that this resolution would have been achieved without the reports from Housecalls. Subject to a consideration of the amount claimed, the applicants should get an order under s 49 of the BSCRA Act. 9 The other arguments related more specifically to the items of work the subject of Housecalls' invoice. It is convenient to deal with them in the same way. The headings below reflect the description of the items in Housecalls' invoice.
Item 1: $360 - inspection and report 10 This is apparently a standard fee for inspecting a property and preparing a standard report. It is not clear from the invoice when this inspection was done, but it appears from the letter dated 23 February 2013 that the inspection was carried out after settlement. 11 The respondents argued that they should not have to pay for this inspection because Housecalls should have discovered the faults the subject of the proceedings during the earlier inspection on 26 September 2012. This is an unattractive argument. There ought not to have been any defects within s 38 of the BSCRA Act capable of being discovered on either inspection. In any event, the applicants do not seek, and would not have been awarded, payment of the costs of the first inspection because the 26 September 2012 inspection was not related to these proceedings.
Item 2: $500 - attendance at the Tribunal on 24 January 2013 12 Housecalls' contention appears to be that Mr Hall is, from time to time, engaged by the Building Commission and charges $500 per attendance at the Tribunal. The same amount is sought for attending at the Tribunal on behalf of the applicants. (Page 5)
13 The Tribunal does not accept that this is an appropriate basis for Housecalls to charge when Mr Hall is to give evidence on behalf of parties to proceedings in a private capacity. 14 Further, inspectors of the Building Commission are called as witnesses at final hearings. The inspector may be the first witness of the day and be excused quickly from attending further or the inspector may be required to attend all day. The directions hearing which Mr Hall attended on 24 January 2013 was scheduled to take no more than 50 minutes. A charge of $500 is not appropriate. 15 It appears from the materials provided in connection with the next item that Mr Hall attended an onsite inspection lasting four hours (including travel time), for which he charged $700. This equates to an hourly rate of $175.00. The hearing at the Tribunal on 24 January 2013 lasted less than an hour. A charge of $150 for the attendance on 24 January 2013 is appropriate. 16 The respondents argued that the applicants were not entitled to recover this item because Housecalls was not a person entitled to receive a fee or reward for representing a party under s 39(2) of the State Administrative Tribunal Act 2004 (WA). Section 12(2) of the Legal Profession Act 2008 (WA) (LP Act) makes it an offence for a person to engage in legal practice unless the person is an Australian legal practitioner. Section 12(4) of the LP Act provides that a person who is not an Australian legal practitioner is not entitled to recover remuneration for work done in contravention of s 12(2) of the LP Act. Performing legal work on an unpaid basis is not a contravention of s 12(2) of the LP Act. Representing a party in proceedings in the Tribunal forms a part of legal practice. If Mr Hall 'represented' the applicants, he would not be entitled to payment for doing so and the applicants would not be entitled to make a claim for the costs of his representation. However, Mr Hall's activities at the directions hearing were primarily concerned with factual issues within his area of technical competence. One or other of the applicants attended and participated in both conferences. Accordingly, the Tribunal is not satisfied that Mr Hall's role in connection with the proceedings was such as to disentitle Housecalls to payment.
Item 3: $700 - roof frame inspection 17 The respondents argued that the applicants were not entitled to this component of the claim because: (Page 6)
18 However, it is not clear how Mr Hall's conduct increased the costs associated with this item. Had the inspection taken place on or before 31 January 2013, it would have cost as much. The circumstances are not such as to warrant the Tribunal disallowing this component of the claim. The charge is not unreasonable, given the length of time involved.
Item 4: $360 - preparation of report resultant to inspection 19 The respondents argue that this item should not be allowed because the charge is the same as that made for an inspection and this item of work involves only preparation of a report. 20 Housecalls' basis for the charge is somewhat cryptic. Mr Hall does not state how long he spends on a 'standard' inspection and report or how many minutes or hours he spent on the report. Housecalls' letter of 24 February 2013 states that the actual time expended was 'far in excess of that required to do the standard inspection and report'. 21 Having looked at the report that was produced on this occasion, the Tribunal considers that it was a substantial piece of work - not a standard building inspection report - so that a price of $360 is not excessive, in the Tribunal's opinion, and should be allowed.
Item 5: $80 - reply to respondents' denial letter 22 Housecalls does not identify by date the 'respondent's denial letter' or its reply. The Tribunal infers from this description and the correspondence on the file that Housecalls' letter is the letter dated 8 February 2013 which responds to the respondents' letter of 7 February 2013. Housecalls' letter of 8 February 2013 went beyond the activities contemplated by the Tribunal's directions of 24 January 2013. The Tribunal will not allow this item. (Page 7)
Item 6: $500 - attendance at the Tribunal on 8 February 2013 23 The issues in relation to this item are the same as those which arise in respect of item 2 above. 24 The directions hearing on 8 February 2013 lasted about two hours. A charge of $350 is appropriate.
Summary 25 The outcome can be summarised as follows: | No | Amount (excluding GST) | Description of Service | Amount allowed | | 1 | 360 | Inspection and Report | 360.00 | | 2 | 500 | Attendance at SAT on 24/1/2013 | 150.00 | | 3 | 700 | Roof frame inspection | 700.00 | | 4 | 360 | Preparation of report resultant to inspection | 360.00 | | 5 | 80 | Reply to respondent's denial letter | 0.00 | | 6 | 500 | Attendance at SAT on 8 February 2013 | 350.00 | | Total (ex GST) | 1920.00 | | GST | 192.00 | | Total | $2,112.00 |
Order 26 The Tribunal makes the following order: 1. The respondents pay the applicants the amount of $2,112 within 21 days. |