The Owners of 38 - 40 Onslow Road, Shenton Park & Anor and C&I Constructions Pty Ltd
[2015] WASAT 115
•12 OCTOBER 2015
THE OWNERS OF 38 - 40 ONSLOW ROAD, SHENTON PARK & ANOR and C&I CONSTRUCTIONS PTY LTD [2015] WASAT 115
| STATE ADMINISTRATIVE TRIBUNAL | Citation No: | [2015] WASAT 115 | |
| BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) | |||
| Case No: | CC:1702/2012 | DETERMINED ON THE DOCUMENTS | |
| Coram: | MR C RAYMOND (SENIOR SESSIONAL MEMBER) | 12/10/15 | |
| 17 | Judgment Part: | 1 of 1 | |
| Result: | Application for costs granted and costs fixed by the Tribunal | ||
| B | |||
| PDF Version |
| Parties: | THE OWNERS OF 38 - 40 ONSLOW ROAD, SHENTON PARK & ANOR C&I CONSTRUCTIONS PTY LTD JONATHAN FOSTER |
Catchwords: | Building Services (Complaints Resolution and Administration) Act 2011 (WA) Proceedings withdrawn prior to hearing on the merits subject to determination of costs Application by respondent for costs Principles to be applied Practice in relation to either assessing or fixing costs |
Legislation: | Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 49 Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) State Administrative Tribunal Act 2004 (WA), s 32(6), s 47, s 87, s 89 State Administrative Tribunal Rules 2004 (WA), r 43 |
Case References: | Chew and Director General of the Department of Education and Training [2006] WASAT 248 Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188 Kitching and Top Class Renovations Pty Ltd [2013] WASAT 102 Koupatsiaris and Pepper Home Loans [2010] WASAT 146 Lai & Anor and Costa [2006] WASAT 117 (S) Owners of 3840 Onslow Road, Shenton Park & Anor and C & I Construction Pty Ltd [2014] WASAT 123 Pearce & Anor and Germain [2007] WASAT 291 (S) |
Orders | On the application determined on the documents by Senior Sessional Member Clive Raymond, it is on 12 October 2015 ordered that:,1. The Owners of 3840 Onslow Road, Shenton Park must on or before 9 November 2015 pay to the respondent legal costs fixed in the sum of $15,430. |
Summary | The respondent applied for costs in an amount of $94,211.84 for costs against the applicant strata company following a successful determination of a preliminary issue which resulted in the dismissal of 102 complaint items and the subsequent withdrawal by the applicants of the remaning 16 complaint items made under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).,The Tribunal rejected the respondent's submissions that the applicant strata company should have taken legal advice prior to initiating the complaints and should have been aware that the proceedings were unmeritorious. While it was accepted that the respondent had incurred additional legal fees as a result of difficulty which the applicants had in complying with the Tribunal's various directions, the Tribunal did not accept that this was due to the applicant strata company conducting itself unreasonably.,However, the Tribunal concluded that from the date on which the applicant strata company received the respondent's witness statements it should have appreciated that its case was obviously unmeritorious in respect of a substantial body of claims which were dismissed as being out of time following the hearing of the preliminary issue. As, subsequent to the hearing of the preliminary issue, the applicants had failed to comply with the Tribunal's orders to copy cross reference those claims which were to proceed to a final hearing to inspection reports and to orders to remedy issued by the fomer building disputes tribunal, failed to attend a mediation, and then applied for leave to withdraw the proceedings, the Tribunal considered that the justice of the case required that the applicant strata company be ordered to pay the respondent's costs from 16 May 2014, being the date on which the respondent had filed and served its witness statements. The Tribunal fixed those costs in the sum of $15,430 and ordered that the applicant pay those costs to the respondent. |
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA) CITATION : THE OWNERS OF 38 - 40 ONSLOW ROAD, SHENTON PARK & ANOR and C&I CONSTRUCTIONS PTY LTD [2015] WASAT 115 MEMBER : MR C RAYMOND (SENIOR SESSIONAL MEMBER) HEARD : DETERMINED ON THE DOCUMENTS DELIVERED : 12 OCTOBER 2015 FILE NO/S : CC 1702 of 2012 BETWEEN : THE OWNERS OF 38 - 40 ONSLOW ROAD, SHENTON PARK & ANOR
- Applicant
AND
C&I CONSTRUCTIONS PTY LTD
Respondent
- Applicant
AND
C&I CONSTRUCTIONS PTY LTD
Respondent
Catchwords:
Building Services (Complaints Resolution and Administration) Act 2011 (WA) - Proceedings withdrawn prior to hearing on the merits subject to determination of costs - Application by respondent for costs - Principles to be applied - Practice in relation to either assessing or fixing costs
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5, s 49
Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA)
State Administrative Tribunal Act 2004 (WA), s 32(6), s 47, s 87, s 89
State Administrative Tribunal Rules 2004 (WA), r 43
Result:
Application for costs granted and costs fixed by the Tribunal
Summary of Tribunal's decision:
The respondent applied for costs in an amount of $94,211.84 for costs against the applicant strata company following a successful determination of a preliminary issue which resulted in the dismissal of 102 complaint items and the subsequent withdrawal by the applicants of the remaning 16 complaint items made under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA).
The Tribunal rejected the respondent's submissions that the applicant strata company should have taken legal advice prior to initiating the complaints and should have been aware that the proceedings were unmeritorious. While it was accepted that the respondent had incurred additional legal fees as a result of difficulty which the applicants had in complying with the Tribunal's various directions, the Tribunal did not accept that this was due to the applicant strata company conducting itself unreasonably.
However, the Tribunal concluded that from the date on which the applicant strata company received the respondent's witness statements it should have appreciated that its case was obviously unmeritorious in respect of a substantial body of claims which were dismissed as being out of time following the hearing of the preliminary issue. As, subsequent to the hearing of the preliminary issue, the applicants had failed to comply with the Tribunal's orders to copy cross reference those claims which were to proceed to a final hearing to inspection reports and to orders to remedy issued by the fomer building disputes tribunal, failed to attend a mediation, and then applied for leave to withdraw the proceedings, the Tribunal considered that the justice of the case required that the applicant strata company be ordered to pay the respondent's costs from 16 May 2014, being the date on which the respondent had filed and served its witness statements. The Tribunal fixed those costs in the sum of $15,430 and ordered that the applicant pay those costs to the respondent.
Category: B
Representation:
CC 1702 of 2012
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Hotchkin Hanly
Respondent : Borello Graham
CC 1701 of 2012
Counsel:
Applicant : N/A
Respondent : N/A
Solicitors:
Applicant : Borello Graham
Respondent : Hotchkin Hanly
Case(s) referred to in decision(s):
Chew and Director General of the Department of Education and Training [2006] WASAT 248
Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188
Kitching and Top Class Renovations Pty Ltd [2013] WASAT 102
Koupatsiaris and Pepper Home Loans [2010] WASAT 146
Lai & Anor and Costa [2006] WASAT 117 (S)
Owners of 3840 Onslow Road, Shenton Park & Anor and C & I Construction Pty Ltd [2014] WASAT 123
Pearce & Anor and Germain [2007] WASAT 291 (S)
Introduction
1 This matter has a long and protracted history before the Tribunal. On the 19 September 2014 the Tribunal published its decision in the Owners of 3840 Onslow Road, Shenton Park & Anor and C & I Construction Pty Ltd [2014] WASAT 123 (the preliminary issue decision) determining a preliminary issue in favour of the respondent, the effect of which was to find that some 102 claims made by the applicants against the respondent under s 5 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act) were out of time and should be dismissed. Consequently, the balance of claims made by the applicants relating to 16 complaint items were to proceed to a final hearing and directions were made by the Tribunal to achieve that end. The parties agreed that the matter should first be referred to mediation.
2 The applicants' representatives failed to attend the mediation which resulted in the respondent advising that it wished to make an application for the proceedings to be dismissed or struck out and for wasted costs. The applicants applied for leave to withdraw the proceedings notwithstanding that the respondent made it clear that it would nevertheless persist with an application for costs against the applicant strata company (the owners). Leave to withdraw the proceedings was granted and the proceedings were withdrawn subject to determination of the costs application to be made by the respondent against the owners. Directions were made for the filing of submissions and directing that subject to further order, the Tribunal would determine the application for costs on the documents.
3 Both parties have filed comprehensive written submissions respectively supporting and opposing the application for costs and the amount which the respondent seeks the Tribunal to fix as the costs to be paid. The amount sought by the respondent is the sum of $94,211.84 comprising:
(a) $24,428.25 in respect of counsel's fees;
(b) $68,853.40 in relation to solicitors' fees; and
(c) $930.19 in relation to other disbursements.
Principles to be applied
4 The parties have referred to various authorities which correctly identify the relevant principles to be applied in relation to cost applications in respect of building matters brought before the Tribunal under the BSCRA Act, namely,
5 Hoskins and Daniel Vinci T/As D'Vinci Contracting [2011] WASAT 188; Kitching and Top Class Renovations Pty Ltd [2013] WASAT 102; Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce), Chew and Director General of the Department of Education and Training [2006] WASAT 248 and Lai & Anor and Costa [2006] WASAT 117 (S).
6 The effect of these decisions in relation to an application for costs in respect of the exercise of the Tribunal's jurisdiction bestowed by the BSCRA Act may be broadly stated to be as follows:
1) While the starting position in respect of the Tribunal's general jurisdiction is that each party must bear its own costs, under the BSCRA Act there is no bias one way or the other.
2) Section 49 of the BSCRA Act grants the Tribunal the broadest possible discretion in relation to costs and should be regarded as being entirely neutral in effect, but should be applied in the manner which is consistent with, and reinforces the objectives and procedures of the Tribunal.
3) Consistent with the Tribunal's objectives, s 49 of the BSCRA Act should not be understood as providing that costs will generally follow the result in the exercise of the discretion to award costs.
4) All of the considerations identified in the decisions of the Tribunal relating to the possible award for costs under s 87 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) remain relevant. These considerations include in particular the nonexhaustive list set out in Pearce which include, relevantly, unreasonable conduct by a party which leads to unnecessary costs being incurred by the other party, inappropriate conduct leading to unnecessary costs incurred by the other party and advancing a case which is weak, being incredible or implausible or obviously unmeritorious.
5) The considerations referred to in previous decisions are not exhaustive and any other factors will be relevant which point to the justice of the case requiring an award of costs.
6) In building matters, in particular, the costs of conducting the case might be allowed when the costs are such that any injustice would result by not allowing costs.
7 The parties' submissions diverge, however, in the manner in which the above principles are to be applied. These submissions will be dealt with further below but there is one particular area of controversy raised which is relevant to the identification of the relevant principles to be applied.
8 The respondent contends that had the owners taken legal advice prior to initiating the complaint, they would have been advised of the complex nature of their claims and of the poor merits of their case and would have also been advised of the potential risks of having to pay the respondent's costs if it elected to proceed with an unmeritorious case. It is further submitted that the owners' election not to engage lawyers has caused the respondent to suffer substantial prejudice and disadvantage in that it has been forced to incur excessive legal fees which would not otherwise have been necessary had the owners engaged appropriate legal representation to deal with the matter in an efficient and cost effective manner.
9 The owners, who have engaged legal representation, for the purposes of opposing the costs application, take exception to these submissions submitting that any award of costs on the basis that they 'unreasonably' elected not to engage lawyers prior to making a complaint would be contrary to the objectives of both the BSCRA Act and the SAT Act.
10 The owners had legal representation for only a short period during the conduct of the litigation as mentioned below in the outline of the course of the proceedings. One of the circumstances in which costs might be awarded is where a party conducts proceedings which are obviously unmeritorious. This raises practical difficulties when a party is not represented but that difficulty is met in part by some of the statutory obligations imposed on the Tribunal under the SAT Act.
11 Section 32(6) of the SAT Act requires the Tribunal to take measures that are reasonably practicable to ensure that the parties to the proceedings before it understand the nature of the assertions made in the proceedings and the legal implications of those assertions. Accordingly, if the Tribunal becomes aware of an obvious difficulty in the way in which a case is being advanced, this will usually be raised with the party at a directions hearing. It is often the case that when a party is appraised of such a difficulty that the case is then withdrawn, sometimes, after an opportunity has been provided to obtain legal advice. When an unmeritorious claim is withdrawn promptly after a party has been alerted to any such difficulty, it is very rare that the Tribunal would award costs. On the other hand, if a party persists with a claim after becoming aware of the difficulty, that may give rise to a circumstance in which costs will be awarded; see for instance Koupatsiaris and Pepper Home Loans [2010] WASAT 146. In this matter costs were awarded because a party persisted with a claim after being alerted to jurisdictional difficulties. As will be seen below, these principles have relevance to this matter.
The proceedings and the background
12 The respondent builder constructed an apartment building at 3841 Onslow Street, Shenton Park for a developer. The building was strata titled and the various dwelling units, or strata lots were sold on to individual purchasers. In the preliminary issue proceedings the Tribunal found that practical completion of the building had been achieved on 5 January 2006.
13 Various individual owners lodged claims with the former Building Disputes Tribunal (BDT) alleging faulty or unsatisfactory building work. The BDT issued various orders to remedy against the respondent. All of these early complaints were regarded by the BDT as having been completed.
14 On 20 March 2009 the owners filed a complaint with the BDT relating to alleged faulty and unsatisfactory work in respect of common areas of the building. The BDT issued an order to remedy. Some outstanding complaint items were referred to hearing and after the hearing a further order to remedy was issued. The BDT subsequently closed its file in respect of this complaint and the two orders to remedy which had been issued.
15 On 29 February 2012 the owners filed with the Building Commissioner a further complaint relating to some 151 complaint items, concerning common property areas and also the interior of certain units.
16 The respondent raised with the Building Commissioner that the complaint was out of time. At that stage complainants in various matters had alleged different dates for the practical completion of the building. In none of those previous proceedings was any issue raised about the complaints being out of time. Each complaint was dealt with on its merits and there was no determination made by the BDT of the date at which practical completion had been achieved.
17 The Building Commissioner was unable to determine, in relation to the complaint lodged on 12 February 2012, whether the complaint was out of time and the investigation report reflects that this was a factor in deciding to refer the matter to the Tribunal. The Building Commissioner was unable to identify whether the complaints were new, whether they related to alleged failure to comply with the various orders to remedy, or whether they related to remedial work carried out at dates which might be within the six year limitation period which applies.
18 At the first directions hearing before the Tribunal on 6 November 2012, the respondent sought orders that the Tribunal determine as a preliminary issue the question of whether the complaint lodged on 29 February 2012 was made out of time. Programming orders were made, and the matter was listed for a hearing of the preliminary issues on 16 January 2013.
19 At the hearing on 16 January 2013, I raised various issues which had not been dealt with by the parties in their submissions, pointing out that a focus on the date on which practical completion was alleged to have been achieved, would not necessarily be determinative of the matter. Such a determination would not have affected complaints based on non-compliance with earlier remedial work orders and arguably might not affect complaints in respect of subsequent repair work alleged to have been carried out in a faulty or unsatisfactory manner. I also raised whether the Tribunal had jurisdiction to make a determination that the complaint was out of time, having regard to particular provisions of the BSCRA Act. The hearing was adjourned to enable further submissions to be filed.
20 Subsequently, the Tribunal was informed that the respondent considered that the Tribunal did not have jurisdiction to make the orders sought and that it would be applying to the Supreme Court by way of prerogative writ and orders were sought and were granted, adjourning the proceedings.
21 Following advice from counsel, the respondent decided to persist with its application for the determination of a preliminary issue before the Tribunal determining whether or not the complaint had been lodged out of time, and if so, for an order under s 47 of the SAT Act that the proceedings be dismissed. In order to proceed with that application, the Tribunal required the parties to agree a statement of facts addressing, in particular, the classification of the complaint items so that it could be ascertained whether the work related to alleged noncompliance with any of the previous orders to remedy, and if so which, or the alleged failure to carry out repair work in a manner which was alleged to be faulty or unsatisfactory, or related to new complaints.
22 At this point the owners found it necessary to engage legal representation and the solicitors, now representing them in the cost application, were engaged. On 25 February 2014 the applicants' legal representatives filed a statement of preliminary issues and a responsive statement of the facts and contentions. On 26 March 2014 the said legal representatives filed an agreed statement of facts in relation to the preliminary issue and a statement of facts which were not agreed. Shortly thereafter the applicant's solicitors gave notice that they were no longer representing the applicants.
23 But for the agreed statement of facts it would not have been possible to proceed with the determination of the preliminary issue. The matter would have had to proceed to a final hearing and the evidence and crossexamination of witnesses would have had to be analysed to determine whether or not the complaints were out of time. The question of whether the Tribunal could make such a determination would also have had to have been addressed at the final hearing.
24 The parties agreed that:
a) The owners did not have standing to bring complaints in respect of noncommon areas in the building with the result that 32 complaint items could not be pursued;
b) 102 complaint items did not relate to previous complaint items or remedy orders and if practical completion was found to have occurred on or before 29 February 2006, these items would be out of time; and
c) Only 16 complaint items 'potentially' related to previous complaints or remedy orders and would be referred to a full hearing.
25 The preliminary issue was duly heard and reasons for decision as outlined above were delivered on 19 September 2014. Further reference will be made to aspects of the preliminary issues decision in dealing with some of the parties' submissions.
26 As set out briefly in the introduction, various programming orders were made in order that the matter could be prepared for a final hearing. In the course of that process the matter was referred to mediation, which the owners' representatives failed to attend and that lead to the respondent indicating that it would apply for the dismissal of the proceedings, and ultimately the owners seeking leave to withdraw the proceedings which was granted subject to determination of the respondent's application for costs.
Should costs be awarded?
27 All of the parties' written submissions have been taken into account. I shall deal with such of those submissions as are necessary in providing these reasons for decision.
28 The respondent contends that the owners' case was ill conceived and unmeritorious. The findings made in the preliminary issue determination certainly established this to be the case in respect of the 102 claims which were dismissed but that would not have been obviously apparent when the complaint was made.
29 It is manifestly clear that a great deal of investigation and analysis involving legal representatives on both sides was necessary before any proper characterisation could be made of the various complaints. The Building Commissioner was unable to carry out this task on the information before him.
30 The respondent also contends, as outlined above, that the owners should have taken legal advice prior to initiating the complaints and that they would then have been advised of the complexity of the claims, the poor merits of the case and the risk of an adverse cost order. Further, it is submitted that the election not to engage lawyers caused the respondent to suffer substantial prejudice and disadvantage in that it has been forced to incur excessive legal fees which would not otherwise have been necessary had the owners engaged appropriate legal representation to deal with this matter in an efficient and cost effective manner.
31 I accept the submissions made on behalf of the owners that it would be contrary to the objectives of both the BSCRA Act and the SAT Act to expect that parties must obtain legal advice before commencing proceedings by the lodging of a complaint with the Building Commissioner. The dispute resolution mechanism provided under the BSCRA Act read with the SAT Act is intended to provide complainants with a relatively informal, nontechnical forum for the adjudication of disputes. Contrary to the court system there is no certainty that a person successfully defending a claim will be entitled to a costs order. Consequently, a party who engages legal representation in the Tribunal is always at risk that costs might not be recovered. This state of affairs enhances accessibility to the Tribunal.
32 Ultimately, there is a balance which must be achieved. Where parties make assertions which are obviously unsustainable the Tribunal has an obligation to ensure that the parties understand the effect of those assertions. This was not such a case because of the factual uncertainty which existed.
33 There is no doubt that the respondent was put to extra legal cost because the owners were not legally represented. But that alone does not necessarily justify a costs order. It is usually necessary to show that a party has conducted itself unreasonably or inappropriately which results in unnecessary costs being incurred. The owners clearly had difficulty in properly presenting their case in the form of a statement of issues, facts and contentions which had the clarity required to enable the respondent to know the case it had to meet and to properly present and prepare its own case. But there is nothing to suggest that this was as a result of the applicant and those individuals representing it from time to time acting unreasonably or inappropriately. Obviously, in any matter a point must be reached, where if a person without legal representation is unable to properly outline its case, that an appropriate sanction, including dismissal of the proceedings, may be justified. This matter had not reached that stage and indeed the respondent had never made any application for dismissal on that basis. It is understandable that no such application was made because at least until near the conclusion of the matter, any such application would probably have been considered premature.
34 As far as the Tribunal is concerned, the real question is whether at some stage during the conduct of the proceedings, it can be said that the owners should have realised that their complaints were obviously unmeritorious.
35 There were a number of complex issues relating to the construction of the BSCRA Act which had to be determined in the preliminary issue proceedings. The owners did not make any submissions which touched on these issues but they were aware that the Tribunal needed to be satisfied that it had jurisdiction to make a determination that the complaint was out of time. The owners are not to be criticised for not becoming involved to any degree in this issue. Instead it concentrated on attempting to establish that if the Tribunal did have jurisdiction, in any event, practical completion had not been achieved because a necessary certificate of classification had not been issued by the relevant local authority. This was based on a provision of the contract between the respondent and the developer which required that a certification by any authority be complied with as a requirement for the achievement of practical completion. It is submitted for the owners that this is a reasonable contention. I do not consider this to be so.
36 The provision of the contract which is set out in full in the preliminary issue decision requires that the 'Owner' give notice to the 'Builder' of those matters and things, if any, which the owner considered were required by the contract to be done before practical completion following notice from the builder that it considered that the works were practically completed. On 16 May 2014 the respondent's legal representatives filed the witness statement of Mr Clive Hartz, a director of the developer company, who stated that he was fully aware of the progress of the building at all times, that he had received the requisite notice from the builder and had not responded to it because he agreed that practical completion had been achieved. There is a provision of the practical completion clause which expressly provides that if the owner does not give any notice within the time specified by the clause, the works shall be deemed to be practically completed at the date of service of the notice given by the builder. The Tribunal very easily concluded in the preliminary issue decision that it did not matter whether a certificate of classification had been issued for the building because the deeming provision had effect. Properly advised I consider this should have been obvious to the owners. The representative for the owners at the preliminary issue hearing did not crossexamine on this or any other issue.
37 Subsequent to the determination of the preliminary issue, the owners were directed by the Tribunal to file a statement of claim, cross referencing each of the complaint items, which had not been dismissed, to the inspection reports and any orders to remedy issued by the BDT. The statement of claim which they filed failed to comply with this requirement. Both applicants then failed to attend the mediation and subsequently, with leave of the Tribunal, withdrew the proceedings.
38 In these circumstances, I consider the owners should be ordered to pay the respondent's costs from the date on which the witness statement of Mr Clive Hartz was served, being 16 May 2014. I am not persuaded that the justice of the case requires that the owners be ordered to pay the costs prior to this date.
The assessment of costs to be awarded
39 The solicitors for the owners have made a number of submissions as to why the costs claimed should be reduced. Many of those submissions fall away in the light of the Tribunal's determination to award costs only from 16 May 2014. Accordingly, only those submissions which remain relevant will be addressed further below. However, before doing so, it is convenient to deal with an alternative submission made that instead of the Tribunal fixing the costs, the costs claimed relating to the respondent's counsel and instructing solicitors should be referred for assessment under r 43 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules).
40 It is the Tribunal's practice, if at all possible, for the Tribunal to fix costs rather than allow costs to be assessed pursuant to s 89 of the SAT Act and r 43 of the SAT Rules. The reasons for this is that the Tribunal members constituting the Tribunal are far better placed to determine whether the costs claimed are reasonable having regard to those factors which influence that determination, such as, the nature of the proceedings, complexity and the importance of the matter to the client, and also in determining whether the resources and conduct of the matter are consistent with the simplified and expeditious procedures which should be the paradigm in the Tribunal. The fixing of costs in a robust but fair manner is also consistent with the Tribunal's objective to deal with matters with as little formality and technicality as is practicable and to minimise the costs to the parties.
41 There is, in my view, no reason to deviate from the Tribunal's usual practice and I will accordingly proceed to fix the costs to be awarded to the respondent.
42 Previous decisions of the Tribunal reflect that the Tribunal will scrutinise the costs claimed to ensure that costs are restricted to those services which are necessary to efficiently litigate the matter before the Tribunal in a manner which reduces the costs to the parties.
43 I have reviewed the statements of account provided by the respondent's solicitors covering services rendered after 16 May 2014 and consider that the time charged for the various activities or services rendered to be more than reasonable. The activities all relate to services provided by a single senior practitioner. There is no duplication between practitioners and the solicitor and client charge of $400 per hour plus GST is reasonable having regard to the seniority of the practitioner concerned.
44 While there is no scale of costs which applies to the Tribunal, the Legal Practitioners (State Administrative Tribunal) Determination 2012 (WA) (Determination) is used as a guide and reflects the maximum rates which the Tribunal should allow. In this case the practitioner concerned has been charged out at a rate inclusive of GST of $440 an hour. The maximum allowable under the Determination is $397 per hour inclusive of GST. Having regard to the factual complexity in attempting to characterise the various items of complaint and the legal complexity involved in the jurisdictional issues, I consider this matter falls within the range of those matters which justify the application of the maximum rate.
45 The services provided by the practitioner subsequent to 16 May 2014 are reflected in the accounts provided dated 7 July 2014 through to 10 March 2015. The services provided during this period total 15.5 hours.
46 It is submitted for the owners that these charges should be reduced in respect of attendances on clients, research, statutory interpretation, transcript enquiries, attendance at directions hearings that were also attended by counsel, attendance and telephone attendance on counsel and correspondence with counsel. Many of the criticisms relate to attendances reflected in accounts prior to the account of 7 July 2014. I consider having regard to the nature of this matter that attendances on client, research, and statutory interpretation would form part of either taking instructions or getting up for hearing. I would ordinarily not regard it necessary for a solicitor and counsel to attend directions hearings, but given the factual and legal complexities in this case I can understand why counsel was briefed to attend directions hearings, and why there was a concern that factual issues might be raised which would require instructions from the instructing solicitor. If there was a general concern about the rate of charging this is an area which might require further examination but that is not the case. In any event, there was no attendance at directions hearings by both counsel and instructing solicitor reflected in the accounts for services rendered after 16 May 2014.
47 I am aware of no reason why attendances on counsel, whether in person, by telephone or correspondence should not be recoverable and I have been referred to no authority to suggest otherwise.
48 I accordingly allow in respect of solicitor's fees the total time claimed of 15.5 hours at $397 per hour inclusive of GST being $6,153.50.
49 Counsel's fees for services rendered after 16 May 2014 are reflected in the copy of accounts provided from 27 June 2014. The accounts reflect total hours charged of 24.5 hours plus a $2000 fee for the attendance at the hearing of the preliminary issue.
50 The solicitors for the owners have raised a number of criticisms of counsel's fees. Firstly, it is submitted that counsel's fees should not be allowed in relation to the preparation and advising on the proposed prerogative writ proceedings. These costs are not allowed for the reasons given above as these attendances were well prior to 16 May 2014.
51 It is otherwise submitted that the fees charged by counsel are excessive and ought to be heavily discounted. It is again submitted, without authority, that attendances between solicitors and counsel should not be claimable. I have reviewed counsel's charges and do not consider that the amount of time taken on any of the attendances is excessive having regard to the complexity of the matter. I also consider that this is a matter which falls within the range of matters which would warrant the maximum hourly and daily rates under the Determination. I accordingly allow in respect of the attendances for which counsel has charged at an hourly rate, namely, 24.5 hours at $297 per hour inclusive of GST, the sum of $7276.50.
52 I consider the charge of $2,000 in respect of the hearing of the preliminary issue to be fair and reasonable given that the Determination allows the charging of a daily rate for hearings of $2,970. I accordingly allow in respect of counsel's fees the total sum of $9,276.50.
53 There are no disbursements claimed during the period subsequent to 16 May 2014. Consequently the total amount allowed by way of costs in respect of solicitors and counsels fees is the sum of $15,430 and I accordingly fix the costs to be paid by the owners to the respondent in that amount.
Order
For the above reasons, the Tribunal will cause an order to issue as follows:
1. The Owners of 3840 Onslow Road, Shenton Park must on or before 9 November 2015 pay to the respondent legal costs fixed in the sum of $15,430.
I certify that this and the preceding [53] 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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