SWEETMAN and SKYTREE HOMES PTY LTD - [2025] WASAT 104

JURISDICTION     :   STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION:   SWEETMAN and SKYTREE HOMES PTY LTD [2025] WASAT 104
MEMBER:   MR D AITKEN, SENIOR MEMBER
HEARD:   DETERMINED ON THE DOCUMENTS
DELIVERED          :   25 SEPTEMBER 2025
FILE NO/S:   CC 55 of 2025
BETWEEN:   Joshua SWEETMAN
First Applicant
Caroline SWEETMAN
Second Applicant
AND
SKYTREE HOMES PTY LTD
Respondent

Catchwords:

Building dispute - Application for leave to file further expert evidence after matter listed for a final hearing - Application in effect an application to vacate the final hearing - Relevant considerations in the exercise of the discretion to grant or refuse the application

Legislation:

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 11(1)(d), s 58
State Administrative Tribunal Act 2004 (WA), s 9, s 60(2)

Result:

Respondent's application for leave to file a further expert report refused

Category: B

Representation:

Counsel:

First Applicant	:	N/A
Second Applicant	:	N/A
Respondent	:	N/A

Solicitors:

First Applicant	:	Lang Litigation & Construction Law
Second Applicant	:	Lang Litigation & Construction Law
Respondent	:	Vogt Legal

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

Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175
Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296
Italiano v Macmahon Contractors (WA) Pty Ltd [2005] WADC 120
Khosa v Legal Services and Complaint Committee [2024] WASCA 148
Martincic v Marusco [2016] WASCA 133
Myran Holdings Pty Ltd and Bombak [2013] WASAT 20
State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

This matter concerns a building service complaint made by the applicants, Mr Joshua Sweetman and Ms Caroline Sweetman against the respondent, Skytree Homes Pty Ltd which the Building Commissioner has referred to the Tribunal.
The matter is listed for a three day final hearing on 21, 22 and 23 October 2025(final hearing).
The respondent has applied for 'leave to rely on a report to be prepared by a nominated building inspector, Mr Graeme Boyd (Mr Boyd) of BuildNex in these proceedings' (respondent's application).
For the reasons which follow, I have decided to refuse the respondent's application.

Procedural history

The procedural history of this matter is very relevant to the determination of the respondent's application, so I am going to set it out in quite some detail.
The applicants made a building service complaint (complaint) to the Building Commissioner under s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) concerning building work carried out by the respondent in the construction of a residential dwelling in Myaree. The complaint was lodged on 15 August 2024 and accepted by the Building Commissioner's delegate on 25 September 2024.
The Building Commissioner referred the complaint to the Tribunal on 28 January 2025 under s 11(1)(d) of the BSCRA Act, at which time it became a proceeding in the Tribunal.
There are 111 items of complaint, with one complaint item relating to plumbing issues containing 19 sub-items.
On 10 February 2025 a notice of representation for the applicants was filed by Lang Litigation & Construction Law.
A directions hearing was held on 11 February 2025 (February directions hearing) which was attended by the applicants, their legal representative, Mr Matthew Lang (Mr Lang) and a director of the respondent, Mr Stewart Glover (Mr Glover). I presided at the directions hearing.
During the February directions hearing the applicants proposed that they file and give to the respondent a 'Scott Schedule'[1] and a book of the documents they wished to rely on to prove their case and that the respondent then file and give to the applicants its responsive schedule and its book of documents and that the matter be referred to mediation on a date after that process was to be completed.
[1] Named after Mr George Alexander Scott, an Official Referee in construction disputes in the United Kingdom who developed the concept of this type of document.
I explained to Mr Glover the format of a Scott Schedule, including that it would provide for the applicants to set out what they say is the scope of remedial work necessary in respect of each complaint item and, if the respondent disputes this then what the respondent says is the scope of remedial work required. Mr Glover said that this made sense, which indicated to me that he understood what the respondent would be required to do to prepare the responsive schedule and its book of documents.
The applicants proposed to include expert reports in their book of documents and I asked Mr Glover if he proposed to obtain expert reports. He said 'yes' and the applicants said that they would allow access to the expert/s who the respondent chose to inspect the alleged faulty building works.
I made orders at the conclusion of the February directions hearing:
1.for each party, in turn, to file with the Tribunal and give to the other party:
(a)a complaint schedule and a book of documents in accordance with the forms attached to the orders;[2] and
(b)a confidential statement of the issues they wished to discuss at the mediation.
2.referring the matter to mediation at 10.00 am on 19 May 2025 for a duration of a full day.
[2] The Tribunal has created a form of Scott Schedule, which it calls a 'Complaint Schedule' and a form for the preparation of a book of documents.
The orders provided that each party's book of documents must contain all the documents on which they wish to rely to prove their case, including contractual documents, variations, expert reports, photographs, quotations and other documents relevant to the costings of the complaint items to be determined by the Tribunal.
Those orders allowed the applicants a period of four and a half weeks (until 14 March 2025) to provide their complaint schedule and book of documents and allowed the respondent a period of five weeks after that (until 18 April 2025) to provide its responsive complaint schedule and book of documents, before the parties were then to provide their confidential statements for the mediation.
On 24 February 2025 a notice of representation for the respondent was filed by Ahern Sierakowski Lawyers and Advisors (Ahern Sierakowski). That was only two weeks after the February directions hearing and six and a half weeks before the respondent was due to provide its responsive complaint schedule and book of documents.
The parties filed the documents ordered to be filed at the February directions hearing and the mediation took place as scheduled on 19 May 2025. The applicants, Mr Glover and the parties' legal representatives attended the mediation. The matter was not resolved at the mediation and it was listed for a further directions hearing.
The further directions hearing was held on 12 June 2025 (June directions hearing), three and a half weeks after the mediation, and it was attended by one of the applicants (Ms Sweetman), the applicants' legal representative, Mr Lang and the respondent's legal representative, Ms Sharon Milton (Ms Milton) of Ahern Sierakowski. I presided at the directions hearing.
Ms Milton told me that the respondent wanted to now put on expert evidence because it had not sought or engaged any experts to prepare reports going into the mediation. Mr Lang said that the applicants' position was that the respondent chose not to provide expert reports in the book of documents it filed pursuant to the February directions hearing orders and that the matter should proceed to a final hearing. I asked Ms Milton what expert reports the respondent was seeking to provide. Ms Milton told me that the respondent had lined up a costing expert who wanted access to the dwelling to prepare a report. I asked Ms Milton if the respondent was proposing that a building inspector also conduct an inspection and Ms Milton told me that it was only a costing expert.
I made orders at the conclusion of the June directions hearing providing for:
1.the parties to provide unavailable dates in August, September and October 2025 for a conference of the costing experts and a final hearing;
2.the Tribunal to then list a conference of the costing experts and a final hearing;
3.the respondent to provide its expert costing report and an updated responsive complaint schedule; and
4.the parties to provide witness lists and witness statements for witnesses who have not provided a report.
On 19 June 2025, one week after the June directions hearing, a notice of representation for the respondent was filed by Vogt Legal.
Each party provided the unavailable dates referred to in [21(1)] above and on 24 June 2025 I made orders:
1.listing a conference of costing experts to be held on 1 August 2025, with a joint statement of the experts to subsequently be provided to the parties and the Tribunal; and
2.listing a final hearing for three consecutive days commencing on 22 September 2025.
On 26 June 2025 an order was made changing the commencement date of the final hearing to 21 October 2025.
On 17 July 2025 the respondent provided the report of its costing expert, Mr Chris Jones (Mr Jones) of Estimating Services Australia.
The conference of the costing experts was held on 1 August 2025.
On 15 August 2025 the respondent filed the respondent's application. The respondent's application states that there are two reasons for the proposed report by Mr Boyd. First, to address the question of liability in respect of the complaint items which are disputed by the respondent. Second, to address the scope of works required to remedy complaint items for which the respondent has admitted liability, which will impact upon the cost to remedy those defective works for the purpose of assessing the applicants' claim for a monetary order.
On 3 September 2025 the respondent filed an affidavit of Stephen Chad Mintz sworn on that date. That affidavit attaches copies of emails between Mr Mintz and Mr Lang and a copy of the respondent's application and refers to conversations between Mr Mintz and Mr Boyd and the respondent's costing expert, Mr Jones.
A directions hearing, at which I presided, was held on 4 September 2025 (September directions hearing) at the conclusion of which I made orders for the respondent to file written submissions in support of the respondent's application and for the applicants to file written submissions in response.

Respondent's submissions

The respondent says that it 'draws on the relevant principles set out in the context of applications for leave to amend a party's case, late in the proceedings, along with some specific principles that apply where leave is sought to introduce expert evidence at a relatively late stage in the proceedings, potentially resulting in the vacation of a trial or substantive hearing'.
As to the principles relating to the issue of an amendment to a pleading in a court, the respondent refers to Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 (Aon), as applied in Western Australia in Hightime Investments Pty Ltd v Lungan [No 2] [2010] WASC 296 at [52] (Hightime).
The respondent refers to the observation made at the September directions hearing that granting the respondent's application may result in the need to vacate the final hearing which has been listed for 21, 22 and 23 October 2025 (final hearing) and refers to a passage in State of Queensland v JL Holdings Pty Ltd (1997) 189 CLR 146 (JL Holdings) at 154, as authority for the principle that 'the ultimate aim of a court is the attainment of justice and no principle of case management can be allowed to supplant that aim'.
The respondent also refers to Italiano v Macmahon Contractors (WA) Pty Ltd [2005] WADC 120 (Italiano) at [28] which refers to decisions in the Supreme Court as authority for the principle that '[T]he right of a party to litigation is the right to have a reasonable opportunity to present its case, or its defence. It is not accurate to regard the law as being that if one party, through neglect, is in a position where it is not able properly to present its case, it is automatically entitled to an adjournment.'
The respondent submits that in JL Holdings and Aon the Courts identified four key factors to be considered:
1.The reasons for the application.
2.The prejudice to the respondent if leave is not granted to adduce the evidence sought to be adduced.
3.The prejudice to the applicants if leave is granted to the respondent to adduce the additional expert evidence requested.
4.A consideration of positive case flow management and principles and the interests of justice.
The respondent's submissions then address those 'four key factors'.
Regarding the reasons for the respondent's application, the respondent says that it is necessary to examine the transcript of the June directions hearing in some detail and then refers to six passages in that transcript in which I asked the respondent's legal representative, Ms Milton questions and she responded regarding the respondent's request to be allowed to 'put on expert evidence'.
In one of those passages Ms Milton told me that she was instructed that the respondent had lined up a costing expert, Mr Chris Brown from Estimating Services Australia, who wanted to 'gain access to the property so that he can … make his assessment of the existing property reports and estimate fees'. I then asked Ms Milton whether the respondent was proposing that a building inspector also inspect the property or whether it was only Mr Brown. Ms Milton then said to me 'That's what I understand. It is only Mr Brown.'
The respondent contends that 'it is plain that Ms Milton's "understanding" was misconceived and that 'Ms Milton has not appreciated the need to obtain expert evidence from a building inspector, even where liability was admitted.'
The respondent submits that:
(a)this is not a case where the respondent has failed to prosecute its defence with necessary diligence. Upon discovering the lacunae in its evidence, the respondent has sought to act proactively and diligently to bring the application;
(b)properly construed, this is a case where fault for the need to bring this application cannot reasonably lie with the respondent;
(c)the matters concerning the interaction between the questions of liability and quantum and expert evidence are matters of high legal complexity;
(d)except in connection with the making of the February directions hearing orders, the respondent has been legally represented in these proceedings at all relevant times;
(e)the respondent was entitled to assume that the solicitors it engaged, if accepting a brief to act in a matter involving a building and construction dispute before the Tribunal, were suitably practiced and competent to prosecute the respondent's defence;
(f)the respondent was entitled to assume that the respondent's former solicitors were aware of the nature of the evidence which was needed to support the respondent's defence to the applicants' claim;
(g)it is plainly the case that through misconception on the part of its former legal representatives, the respondent's 'extension application' was incorrectly constrained to seek leave to adduce evidence from an estimator as opposed to an estimator and a building inspector; and
(h)it is plain from Ms Milton's address to the Tribunal, this was not a case in which the decision to confine the respondent to an estimator only was the result of a deliberate forensic decision, but rather, by operation of the above misconception.
Regarding 'prejudice to the respondent' the respondent submits that if the respondent's application is dismissed it will not have the evidence needed to support its position resulting in 'a near automatic finding' for the applicants.
The respondent submits that it should not be prejudiced 'by a detrimental decision or argument made by its former solicitors, without regard to the case which had been put before the Tribunal in the respondent's Scott Schedule'.
Regarding 'prejudice to the applicants' the respondent acknowledges that if the respondent's application is granted there will be some prejudice to the applicants in terms of the potential delay if the final hearing is vacated.
The respondent also acknowledges that the applicants' costs will increase as a result of the need to re-engage their original experts to comment upon the new reports sought as a result of the respondent's application but contends that those costs would have been incurred by the applicants 'if the respondent's former solicitors did not incorrectly constrain the grant of leave give on 12 June 2025 to a report from an estimator'.
Regarding 'positive case flow management considerations', the respondent says 'It is not lost on the respondent that there is limited time before the current listing of the final hearing for "the necessary steps to occur so as not to imperil the final hearing, resulting in a need to vacate that hearing" '.
The respondent then 'notes' the following:
1.If the final hearing is vacated there is still sufficient time that 'the time that the final hearing would have occupied could be applied to another hearing'.
2.The Tribunal is not understood to have incurred the cost to the appointed sessional member in respect of the final hearing as yet.
3.This is not a case in which the adjournment arises because of neglect by the respondent in preparing its case. The respondent 'can and was entitled to rely on its former legal representatives to correctly identify the evidence that was need to support its defence'.
4.If the respondent's application is dismissed on the basis of closeness in proximity to the final hearing, that would result in 'principles of case management operating in a way to foreclose on the manner in which the respondent presents its defence'.

Applicants' submissions

The applicants contend that if the respondent's application is allowed the final hearing listed for 21, 22 and 23 October 2025 will inevitably have to be vacated and relisted for a final hearing some time in 2026. The applicants also point out that there may be a need for further expert conferrals if leave is granted for the respondent to provide a report from its proposed building expert. The applicants say that, properly viewed, the respondent's application is both to seek leave to put on expert evidence and to vacate the final hearing which is listed to commence on 21 October 2025 for three days.
The applicants submit that the respondent's application should be dismissed because the respondent has had sufficient prior opportunity to put on expert evidence on liability and quantum and, with legal representation, made a decision as to how to defend the allegations made against the respondent. The applicants acknowledge that the respondent is entitled to change legal representation, but that change should not be permitted to cause substantial prejudice to the applicants by allowing the respondent to go back and effectively 'start again' with its expert evidence on both liability and quantum.
The applicants say that it is well established that 'procedural fairness' does not require a party to be given an unlimited opportunity to present its case and what is required is that the parties are provided with a sufficient opportunity to present their respective cases. The applicants contend that a party who is given a sufficient opportunity to present its case, and who fails to take advantage of that opportunity without reasonable cause, cannot later complain that it has been denied procedural fairness if declined a further opportunity to do so.

The applicants refer to the February directions hearing and the orders I made at that directions hearing which are described at [14] and [15] above and which specifically required each party to include in their book of documents expert reports and documents relevant to the costings of the complaint items.
The applicants note that while the respondent attended the February directions hearing without legal representation, shortly after that the respondent became represented by Ahern Sierakowski (which filed a notice of representation on 24 February 2025).
The applicants refer to the website of Ahern Sierakowski which states that the firm has extensive expertise in construction disputes and the respondent can be presumed to have taken legal advice as to how it should respond to the complaint.
The applicants say that on 21 March 2025 they provided their book of documents which included an expert report prepared by building inspector Mr Lachlan Deshon of Home Integrity (as to liability) and an expert costing assessment prepared by registered builder Mr Greg Mithen. The applicants say that from that date the respondent had the opportunity to obtain whatever expert or other evidence that it considered was required to respond to the complaint, including a building inspection report and/or an expert costing report or quotations.
The applicants say that on 9 April 2025 an extensive number of personnel attended at the applicants' dwelling, being personnel from nine contractors and suppliers (plumbing, electrical, painting and decorating, windows, garage doors, tiling, ceilings, cabinets and roofing), plus three personnel from the respondent. The applicants say that on or about 16 April 2025 an inspection was conducted by an inspector from the Australian Timber Flooring Association.
The applicants say that it is apparent from the number of personnel who attended and inspected that the respondent sought to rely on specialist trades to inspect the items of alleged faulty or unsatisfactory works and respond before it provided its responsive complaint schedule and book of documents on 28 April 2025 and the matter proceeded to mediation.
The applicants then refer to the June directions hearing at which I heard submissions from the legal representatives of the parties and made orders for the respondent to provide an expert costing report and for an expert conferral of the costing experts to be held.
The applicants say that the respondent's costing expert, Mr Jones inspected the dwelling on 6 July 2025, which was the third round of inspections by personnel engaged by the respondent, following which Mr Jones' report was filed. The applicants then refer the conferral of the costing experts which was held at the Tribunal on 1 August 2025, after which the joint statement of those experts has been filed.
The applicants submit that the respondent's application is, in effect, to seek leave to put on further expert on liability and quantum and to vacate the final hearing dates (21, 22 and 23 October 2025).
The applicants refer to the main objectives of the Tribunal in dealing with matters within its jurisdiction which are set out in s 9 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and submit that if the respondent's application were to be dismissed and the matter proceed to a final hearing it could not be sensibly contended that the Tribunal somehow failed to achieve the objectives of s 9 of the SAT Act.
The applicants submit that if the respondent's application were allowed then:
1.further expert evidence on liability would be put on by the respondent, which would then require review and response from the experts engaged by the applicants, adding further delay and imposing additional costs on the applicants;
2.further quantum evidence would be put on by the respondent which would then require review and responses from the experts engaged by the applicants and the conferral of the costing experts which has been held may become wasted and a further expert conferral required; and
3.the final hearing listed in October 20025 would be vacated and relisted some time in 2026. The applicants accept that proceedings before the Tribunal are inevitably stressful for parties but say that stress should not be unduly prolonged.
The applicants refer to the principles set out in Aon at [98], which the applicants say are applicable to proceedings before the Tribunal where a party seeks to adduce further late expert evidence and in doing so seeks to vacate a final hearing.
The applicants refer to the principles set out in Khosa v Legal Services and Complaint Committee [2024] WASCA 148 (Khosa) at [36] and in Martincic v Marusco [2016] WASCA 133 (Martincic) at [44] - [147] to be considered in the exercise of the discretion to grant or refuse an adjournment.
The applicants submit that the respondent has been provided with sufficient opportunity to put on its documents, including expert evidence. The applicants say that the respondent made a decision to proceed in the manner that it did (for approximately 15 personnel to inspect the dwelling over three separate days) and there is no good reason to grant an adjournment of the final hearing to allow the respondent to go back and put on further evidence on liability and quantum. The applicants submit that the respondent's application should be dismissed and the respondent ordered to pay the applicants' costs of the application.

Consideration

In its submissions the respondent says that it draws on 'some specific principles that apply where leave is sought to introduce expert evidence at a relatively late stage in the proceedings'. However, I note that the respondent has not identified any such 'specific principles' in its submissions.
The respondent submits that in JL Holdings and Aon the Courts identified 'four key factors to be considered' in the exercise of the discretion to allow or refuse an application by a party for leave to amend its claim or defence. However, I note that the respondent has not identified any passages in those cases in which those factors are identified.
In Hightime at [52] Beech J (as he then was) made the following comments regarding the observations made by the High Court in Aon:
In Aon Risk Services Australia Ltd v Australian National University [2009] HCA 27; (2009) 239 CLR 175 the High Court made observations about the considerations relevant to the exercise of a discretionary power to allow or refuse amendment to a pleading in the Australian Capital Territory. Notwithstanding some differences in the language of the relevant rules, their Honours' observations are of valuable assistance in Western Australia and have been applied by courts in Western Australia. Those observations include the following:
(a)the effect of an amendment on the court and on other litigants is relevant;
(b)there is no right to amend to introduce an arguable case and it is wrong to say that only in extreme circumstances would a party be shut out from litigating an arguable case;
(c)justice requires that parties have a proper opportunity to plead their case, but limits may be placed on repleading when delay and cost are taken into account;
(d)a just resolution does not mean that a party will always be permitted to raise any arguable case at any point in the proceedings, on payment of costs, even indemnity costs;
(e)the inevitable strains of litigation must be taken into account in weighing the adverse consequences of delay - this applies to natural persons and other litigants;
(f)the nature and importance of the amendment to the party amending must be taken into account;
(g)attention must be given to the extent of the delay, and the costs associated with it, the prejudice which might reasonably be assumed to follow from it and any prejudice that is shown;
(h)the point in the litigation relative to the trial may be an important consideration;
(i)where a discretion is sought to be exercised in favour of a party, an explanation will be called for;
(j)the point can be reached where a party has had a sufficient opportunity to put its case.
[89] - [103]; [111] - [112].
I accept the applicants' submission that the respondent's application is, in effect, an application to vacate the final hearing with the result that the final hearing will not be held until sometime in 2026.
Considering the reasons stated in the respondent's application for the proposed report by Mr Boyd,[3] if the respondent's application is allowed it is inevitable that the final hearing will have to be vacated, even though in its submissions the respondent has prevaricated on this issue by saying only that at the September directions hearing it was observed that granting the respondent's application may result in the need to vacate the final hearing.
[3] See [27] above.
If the respondent's application is allowed, it is extremely likely, if not certain, that the conferral of the parties' costing experts and the joint statement prepared by them following their conferral will become otiose and there will need to be another conferral of the costing experts after there has been a conferral of the building experts before the matter can go to a final hearing.
Therefore, in my view, in exercising my discretion to grant or refuse the respondent's application I must be guided by the considerations relevant to the exercise of discretion to grant or refuse an adjournment of a proceeding, that is to vacate the final hearing which is listed in this proceeding.
In Khosa at [36] the Court of Appeal stated:
As we recently noted in Ogbonna v Qantas Airways Ltd, the discretion to grant or refuse an adjournment must be exercised consistently with the obligation of the court (or, in this case, the Tribunal) to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court (or, in this case, the Tribunal) has declined to provide a further opportunity to do so.
(footnotes omitted)
In Ogbonna v Qantas Airways Ltd [2023] WASCA 168 at [17] ‑ [18] the Court of Appeal stated:
17The discretion to grant or refuse an adjournment must also be exercised consistently with the obligation of the court to determine disputes in a manner which is procedurally fair. However, it is well established that this does not require that a party be given an unlimited opportunity to present a case. What is required is that the parties are provided with a sufficient opportunity to present their cases. A party who is given a sufficient opportunity to present their case, and who fails to take advantage of that opportunity without reasonable cause, cannot complain that they have been denied procedural fairness because the court has declined to provide a further opportunity to do so.
18In considering whether determination of litigation is just, regard must be had to the interest of other parties to the litigation and other litigants in other cases. Speed and efficiency, in the sense of minimum delay and expense, are aspects of the just resolution of proceedings. Considerations of speed and efficiency cannot detract from the requirement that a party to litigation be given sufficient opportunity to present their case. However, where a party has been given a sufficient opportunity to present their case, then a decision about an adjournment to provide further opportunity must take account of the injustice to the other parties which may follow from the delay, expense and disruption which results from a listed hearing not proceeding.
(footnotes omitted)

Has the respondent been given a sufficient opportunity to present its case?

During the February directions hearing I explained to Mr Glover, who was representing the respondent as its director, the format and purpose of the 'Scott Schedule'/Complaints Schedule which the applicants would be required to prepare (by completing the first seven columns) and provide to the Tribunal and the respondent for the respondent to then complete the remaining four columns. Mr Glover told me that he understood this. I also canvassed with Mr Glover the question of whether he proposed to obtain expert reports and he said he did.
The orders which I made at the conclusion of the February directions hearing and the complaint schedule and form regarding the preparation of book of documents made it very clear that if either the applicants or the respondent wished to rely on expert reports to prove their case then they must include those in their book of documents and refer to them in the complaint schedule.
The applicants allowed access to the dwelling on three occasions for approximately 15 personnel to inspect the complaint items.
During the June directions hearing Ms Milton said that the respondent had lined up a costing expert who wanted to have access to the property to inspect and prepare a report. I asked her whether the respondent was proposing that a building inspector would also attend the inspection and she responded that her understanding was that it would only be the costing expert. Therefore, I made orders to enable the respondent to obtain a report from its costing expert and for there to then be a conferral of the costing experts and then a final hearing.
One of the applicants (Ms Sweetman) attended the directions hearing with Mr Lang, but Mr Glover did not attend with Ms Milton.
The respondent's submissions say that it is necessary to examine the transcript of the June directions hearing in some detail and then focus on six passages in that transcript.
In Myran Holdings Pty Ltd and Bombak [2013] WASAT 20 at [8(4)], the Tribunal said, in the context of considering whether leave should be granted under s 58 of the BSCRA Act for review of a decision, that the decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error. In my view that approach should also be applied to the consideration of the discussions during the June directions hearing.
The respondent's submissions allege that Ms Milton's 'understanding' that the respondent only wished to obtain a report from a costing expert and not also a building inspector was 'misconceived' and that Ms Milton had not appreciated the need to obtain expert evidence from a building inspector. The submissions also allege that 'a detrimental decision or argument' was made by the respondents, former solicitors (Ahern Sierakowski).
Those allegations are not supported by any evidence, such as by an affidavit of Mr Glover, regarding the advice which Ms Milton (or anyone else at Ahern Sierakowski) gave to the respondent or the instructions which Mr Glover gave to Ms Milton regarding the respondent obtaining expert evidence to support its case from the time when Ahern Sierakowski commenced representing the respondent up to the June directions hearing. The respondent has also not provided any explanation for why Mr Glover did not attend the June directions hearing.
The respondent's submissions do not address the discussion between me and Mr Glover at the February directions hearing, nor the information contained in the orders made at that directions hearing and in the complaint schedule and book of documents forms attached to those orders.
In my view, the respondent has clearly been given sufficient opportunity to present its case and it would be unjust to the applicants to allow the respondent's application which would undoubtedly cause delay and further expense in the matter being determined by the Tribunal.

Should I allow or refuse the respondent's application?

For the reasons I have given above, I have decided to refuse and, therefore, dismiss the respondent's application.

Costs

In their submissions the applicants submit that if the respondent's application is dismissed the respondent should be ordered to pay the applicants' costs of the application.
Therefore, I will make orders to allow the applicants to apply for their costs and to provide that if the applicants apply for costs the respondent may file written submissions in opposition and the application for costs will be determined on the documents.

Orders

I will make the following orders:
The Tribunal orders:
1.The application by the respondent filed with the Tribunal on 15 August 2025 for leave to rely on a report to be prepared by a nominated building inspector, Mr Graeme Boyd of BuildNex in this proceeding is dismissed.
2.The applicants have liberty to apply for their costs of the respondent's application by filing with the Tribunal and giving to the respondent by 17 October 2025:
(a)a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the applicants wish to rely; and
(b)written submissions stating the basis upon which it is contended costs should be awarded and the basis upon which the amount of costs claimed is calculated.
3.If the applicants make an application for costs under order 2 above, the respondent may file with the Tribunal and, if so, must give to the applicants, written submissions and any supporting documents on which the respondent wishes to rely in opposition to the application for costs by 7 November 2025.
4.Subject to any further order, after 7 November 2025 the application for costs is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) and the Tribunal will fix the amount of any costs awarded in the same determination.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
MR D AITKEN, SENIOR MEMBER
25 SEPTEMBER 2025