WRIGHT and 3B BUILD PTY LTD
[2016] WASAT 68
•9 JUNE 2016
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT: BUILDING SERVICES (COMPLAINT RESOLUTION and ADMINISTRATION) ACT 2011 (WA)
CITATION: WRIGHT and 3B BUILD PTY LTD [2016] WASAT 68
MEMBER: MS P LE MIERE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 9 JUNE 2016
FILE NO/S: CC 1475 of 2014
BETWEEN: ANN WRIGHT
Applicant
AND
3B BUILD PTY LTD
Respondent
Catchwords:
Building services Application for costs Exercise of discretion substantially successful Fair and reasonable in all the circumstances Rule 42 of State Administrative Tribunal Rules 2004 (WA)
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 5(1), s 36(1)I(b), s 49, s 49(2)
State Administrative Tribunal Act 2004 (WA), s 55, s 87(1), s 88(2)
State Administrative Tribunal Rules 2004 (WA), r 42
Result:
Respondent ordered to pay contribution to applicant's legal and expert costs fixed in the sum of $113,430
Summary of Tribunal's decision:
The applicant was substantially successful in the substantive matter and obtained an order that the respondent pay the applicant the sum of $376,057, being the cost of rectification work pursuant to s 5(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). The Tribunal dismissed six complaint items. The items of complaint dismissed were of a minor nature and totalled $3,335.68.
The respondent had made a number of offers of settlement prior to the hearing, all of which were substantially less than the compensation that was achieved on the final order. The Tribunal considered the respondent's defence to many of the items of complaint to be implausible (the underfloor heating complaint item) or unreasonable (the termite report, the hot water system, the cabinetry, and - after reviewing the expert reports prepared by Mr Graziani and Mr Dawson - the pond items). There will be some cases in which an injustice could result by not allowing costs to be recovered and this was one such case. The Tribunal found it was fair and reasonable, taking into account all the circumstances, including the nature of the jurisdiction exercised by the Tribunal, to order the respondent to pay a substantial contribution to the applicant's legal and expert costs.
Category: B
Representation:
Counsel:
Applicant: Mr R Shaw with Ms M McCubbing
Respondent: Ms K Roach
Solicitors:
Applicant: Lavan Legal
Respondent: In-house Counsel
Case(s) referred to in decision(s):
Lai & Anor and Costa [2006] WASAT 117 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Medical Board of Australia and Costley [2013] WASAT 2
Pearce & Anor and Germain [2007] WASAT 291 (S)
Tessier and Commissioner of State Revenue [2016] WASAT 40
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
On 31 March 2016, following the determination of the substantive matter, the Tribunal made orders for the parties to file submissions in respect of costs addressing the basis upon which they contend costs should be awarded or opposed, and the quantum of costs claimed.
Relevant background
At the commencement of the final hearing that was heard over five days, there were approximately 127 items in dispute between the parties. Subsequently, 30 of the original 127 items of complaint were formally withdrawn and a further eight incorporated or included in other items of complaint.
The Tribunal declined to make an order, pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), in respect of complaint items 27, 32, 33 and part 37(d), and 67 and 68, as set out in the Further Amended Scott Schedule, and dismissed these complaint items. The items of complaint dismissed were of a minor nature and totalled $3,335.68.
The Tribunal found that the work carried out by the respondent in respect of the remaining complaint items ‑ namely complaint items 3 ‑ 4, 6 ‑ 22, 23 ‑ 25, 28, 29, 31, 34 ‑ 37 (other than item 37(d), being the scratched glass), 38 ‑ 47, 49 ‑ 57, 59 ‑ 64, 71, 73 ‑ 77, 79, 83 ‑ 87, 89, 90, 92 ‑ 98, 100, 104 ‑ 108, 110, 114 ‑ 117, 119, 121 ‑ 125 and 127 ‑ was faulty, unsatisfactory or not carried out in a proper or proficient manner and required rectification, and ordered, pursuant to s 5(1) of the BSCRA Act that the respondent pay the applicant the sum of $376,057, being the cost of the rectification work.
The applicant had legal representation throughout the proceedings and engaged the following experts to provide reports and attend the hearing:
a)Mr Neville Harrison, a registered builder who since 2009 has consulted to parties in building disputes to provide expert reports and give evidence in hearings;
b)Dr Armand Zurhaar, a forensic and material scientist who is recognised as a specialist technical expert by all large insurance companies;
c)Mr Anthony Wallseveno Graziani who has worked as a pool designer and builder for over 20 years;
d)Paul Kenneth Dawson who has 22 years' experience in identifying leaks in pools and developing mechanisms or solutions to manage or rectify leaks in ponds and pools;
e)Mr Stephen Charles Needs, a tiling consultant with over 25 years' experience in the industry and who has been inspecting and assessing wall and floor tiling and associated trades in workmanship disputes since 1996; and
f)Mr Neil Donald Edmunds, an aluminium window consultant who has been involved in the glass and window industry for over 25 years.
The respondent was also legally represented throughout the proceedings and called expert evidence from Mr Liptrot and Mr Gomez. Mr Liptrot has qualifications as a municipal building inspector in England and has worked in Australia since 1999 as a building and engineering inspector for a number of government departments and on his own account. Mr Gomez, who installed the tiles, has worked as a tiler since 1993, and since 2004 has run his own company, and in that capacity has completed large commercial jobs such as the Perth international and domestic airports, some shopping centres and apartment complexes.
The applicable principles for the award of costs
The starting point in any analysis of the circumstances in which the Tribunal will make an order for costs is s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) which creates the presumption of a 'no costs jurisdiction'. This is, however, subject to the broad discretion in s 88(2) of the SAT Act and s 49 of the BSCRA Act.
Although s 49 of the BSCRA Act broadens the Tribunal's discretion in relation to costs, the provision should not be understood as providing that costs will generally follow the result; it is neutral in effect, and should be applied in the manner which is consistent with and reinforces the objectives and procedures of the Tribunal, and any factors will be relevant which point to the justice of the case requiring an award of costs: Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce).
In McLerie and Koleszko [2014] WASAT 160 (S) at [3], the Tribunal considered the factors and circumstances it might take into consideration when determining whether to depart from the starting point that is that each party should bear their own costs and to exercise its discretion to award a party some or all of its costs. They are:
a)where a party conducts itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party;
b)where a party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party;
c)where credibility of evidence is at the heart of a matter;
d)where the application undermines the integrity of proceedings under the relevant Act;
e)where the case is weak, being incredible or implausible or obviously unmeritorious;
f)where a party has to embark in proceedings to vindicate its clear contractual entitlement; and
g)the circumstances of the case having regard to the above, or other, factors are such that the justice of the case supports moving away from the initial position that each party should bear their own costs.
Whilst the above are some of the factors the Tribunal will look at and may take into account when making costs orders, the underlying consideration for the Tribunal when determining an application for a costs order will be whether the justice of the case supports moving away from the initial position that each party should bear their own costs: Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle) at [15].
This position was recently confirmed by the Court of Appeal of the Supreme Court in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 (references omitted) where it said:
Accordingly, even in a statutory context where the presumptive position is that no costs will be ordered, generally speaking, the question is whether, in the particular circumstances of the case, it is fair and reasonable that a party should be reimbursed for the costs it incurred. The onus is on the party seeking an order in its favour.
Applicant's application for costs
On 13 April 2016, the applicant filed submissions seeking an order for both the legal costs and expert costs she incurred in prosecuting her claim (applicant's submissions).
The applicant submits that the Tribunal should exercise its discretion in her favour because (in summary) of the manner in which she says the respondent conducted the proceedings, thus enlivening s 49(2) of the BSCRA Act.
In the applicant's submissions, the applicant raises a number of factors it says the Tribunal should have regard to in considering whether a costs order should be made in favour of a party. It says the case was complex and beyond the capacity of the applicant to run herself, and the appointment of legal representation allowed the case to be presented in a more structured way.
The applicant says further that the respondent acted unreasonably from the initial referral of each of the applicant's complaints to the Tribunal by:
Contesting each and every complaint item. Most should not have been taken to the stage where the experts needed to confer. They should have been conceded soon after the complaint was made.
Refusing to agree or to accept liability for complaint items which its expert/Mr Philip Liptrot, agreed to at the joint expert conferral (which the applicant submits should have been conceded prior to the final hearing of this matter)[.]
Seeking to further resile from the position adopted by Mr Liptrot at the joint expert conferral during the course of the final hearing.
Respondent's response to the application for costs
On 2 May 2016, the respondent filed written submissions opposing an order to pay the legal and expert costs claimed by the applicant both in respect of liability and quantum (respondent's submissions).
In the respondent's submissions, it asserts, and the Tribunal accepts, that the starting point in any analysis of the circumstances in which the Tribunal will make an order for costs in this type of proceeding is that each party should bear their own costs, regardless of whether a party was or was not substantially successful. The onus is on the party seeking an order in its favour to displace that presumptive position.
The respondent asserts it has not conducted itself unreasonably or inappropriately, nor has it acted in such a way that caused the applicant to incur unnecessary costs. It says the issues raised by the respondent in its response were not incredible or implausible, and there were significant issues regarding the application of the contract between the parties and the extent of the claims made by the applicant.
The respondent says the applicant acted unreasonably in refusing to discuss the respondent's position, and in altering her position in respect of the basis of her claim for replacement of the tiles late in the course of the claim.
The respondent says the high quantum of costs claimed by the applicant was largely caused by the manner in which the applicant chose to conduct the proceedings, including the unnecessary duplication of costs by the applicant calling more than one expert witness in respect of the same area.
Additionally, the respondent also says that the applicant's attitude to settlement negotiations is relevant to the Tribunal's consideration as to whether she should be awarded costs.
Surprisingly, the respondent's submissions, which were prepared by a legal practitioner, include matters of evidence and, in particular, evidence as to discussions regarding settlement negotiations. The submissions in respect of this issue were discursive.
The respondent further says that the applicant's submissions in respect of the joint expert conferral are largely unfounded and it was clear, on the evidence, that the outcome of the expert conferral did not reflect the contractual obligations of the respondent or the factual situation.
The respondent claims that the reason the joint expert report contained inaccuracies and inadequacies can be directly attributable to the applicant's refusal to allow the parties' representatives to attend the expert conferral.
The Tribunal has disregarded the contents of paragraphs 25 and 33, as these paragraphs, in breach of s 55 of the SAT Act, purport to give evidence of matters that occurred at mediation.
The Tribunal can know that mediation occurred and nothing more. It is utterly unacceptable that submissions prepared by a legal practitioner would, in breach of s 55 of the SAT Act, seek to report what was or was not said at mediation. Such conduct by a legal practitioner is reprehensible.
The respondent, whilst denying a costs order should be made, quite properly provides submissions on what it says the quantum of legal costs should be in the event the Tribunal does make a costs order in favour of the applicant.
In relation to disbursements, including expert fees, the respondent, in its submissions, only takes issue with the quantum of two items, being a charge for facsimiles and Mr Harrison's (the applicant's building expert) fees for his reports and attendance at the hearing.
Consideration
The respondent submits that given the applicant's position in refusing to discuss matters with the respondent, it had no choice but to take the matter to hearing and therefore there is no reason for the Tribunal to exercise its discretion and award costs to the applicant.
The Tribunal understands the respondent to be alleging that the applicant has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in a way which minimises the costs to the parties by, allegedly, refusing to discuss the respondent's position.
If, as alleged, the applicant did refuse to engage with the respondent to discuss 'its position', there is no evidence that this had a consequential effect of increasing costs, or evidence the applicant was acting in such a way as to not minimise the costs of the proceedings or restrict the proceedings from being determined fairly.
The Tribunal is confirmed in its view, as nothing raised by the respondent at the hearing caused the applicant to withdraw any complaint items. Whilst the applicant did not formally withdraw a number of items of complaint until the end of the hearing, it is not suggested by the respondent that it had thought any of those items would be maintained at the hearing.
Offers of settlement
The respondent further urges the Tribunal to take into account various offers of settlement it made to the applicant and its failure to discuss them with the respondent as a factor against awarding costs in its favour.
There is no statutory or common law obligation for a party to continually discuss or confer with another party with respect to settlement offers. Rule 42 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) sets out the obligation of the parties in respect of offers of settlement made in this jurisdiction and the consequences of not accepting a more favourable offer.
Rule 42 of the SAT Rules requires the Tribunal to take into account an offer made in compliance with that Rule by the unsuccessful party that was more favourable than the amount awarded by the Tribunal.
The offer made in writing dated 13 March 2015 did not comply with r 42 of the SAT Rules, including that it was not open for acceptance for a minimum of 14 days and was not more favourable than the order made by the Tribunal ‑ indeed, it did not deal with any of the significant items in dispute.
The offer by letter to the applicant's solicitors of 4 February 2016 again does not comply with r 42 of the SAT Rules and is also for an amount significantly less favourable than that ordered to be paid by the Tribunal.
The effect of non‑compliance with the SAT Rules is that the Tribunal is not obliged to have regard to the offers of settlement and their non‑acceptance.
However, it is nevertheless in the public interest that offers of settlement that do not comply with the SAT Rules be given careful consideration: Marvelle at [26].
The Tribunal does not need to consider the factors set out in Marvelle to assess whether the non‑acceptance of any of the offers of settlement not made in compliance with the SAT Rules was unreasonable, as none of the offers were for more than the sum ordered to be paid by the Tribunal. Regardless, therefore, as to whether the offers complied with the SAT Rules, there is nothing for the Tribunal to consider, as they were for amounts less than that ordered to be paid by the Tribunal.
Expert conferral
The respondent says the applicant's conduct in refusing to permit the parties and/or their representatives to attend the expert conferral caused inaccuracies in the joint expert report. Presumably this is in response to the submission by the applicant that a factor the Tribunal should consider in determining the issue of costs is the fact that the respondent refused to agree or to accept liability for complaint items which its expert witness, Mr Liptrot, agreed at the joint expert conferral prior to the hearing, and additionally sought to resile from the position adopted by its expert witness during the course of the final hearing.
The claim that the applicant refused to permit the parties' representatives to attend the expert conferral is, at the very least, disingenuous. The orders in respect of the expert conferral were made by Member Ward following the receipt of consent orders from the parties on 5 February 2015. There was no contested hearing. The respondent, by signing the consent orders, agreed with the applicant that the parties and their representatives would not attend the expert conferral.
It is standard practice for any expert conferral ordered by the Tribunal to be conducted in the presence of a Tribunal member and in the absence of the parties and their representatives. Indeed, it would be extremely unusual for the parties or their representatives to be present.
Leaving aside the issue as to whether there were any inaccuracies in the joint expert report, the applicant cannot be criticised for following orders of the Tribunal to which the respondent consented.
Conduct of the proceedings
As can be seen from the examples set out below, in essence, the respondent's position was to put the applicant to proof of all its claims, regardless of the strength of the applicant's expert evidence and in the face of the respondent not having any contra expert evidence.
Pond items
The respondent did not call any evidence to contest that the pond leaked or that the leaks were not where the vertical met the horizontal. It called no evidence to contradict or challenge the applicant's experts. It made submissions that the leaks were caused by other contractors employed by the applicant working on the site. It led no evidence as to how the leaks could have been caused by work being conducted in other areas.
Tiles
The respondent did not call any expert evidence to challenge that of Mr Needs or Mr Zurhaar, who gave expert evidence as to the fact that the tiles were drummy, the reasons for the tiles being drummy and the need for their replacement. The only witness the respondent called was Mr Gomez, the tiler who laid the tiles. Mr Gomez took issue with the evidence of Mr Needs where he referred to the Australian Standards for ceramic tiles, because he said it did not apply as the tiles in question were natural stone tiles. The respondent cross‑examined Mr Needs with respect to his method for testing for drummy tiles.
Mr Gomez did not and could not give any evidence as to whether the tiles were drummy or cracking, as he had not been back to the site since he finished laying the tiles. No evidence was called by the respondent to contradict the evidence of Mr Zurhaar that, over time, all the tiles would become drummy and would likely crack and would all need to be replaced.
Cabinetry
Mr Harrison gave clear evidence as to the attempts he had made to clean the milky substance off the cabinetry. The respondent did not call any evidence to show the cabinetry could be cleaned. There was unchallenged evidence that the milky white substance was present before the applicant took possession of the property, albeit to a lesser extent.
The respondent challenged the cause of the milky white substance's appearance in cross‑examination of the applicant and her architect but did not call any evidence to challenge the evidence called by the applicant that all of the cabinetry affected by the milky white substance would need to be replaced.
Glass and mirrors
The respondent's response to a claim for the bathroom mirror to be replaced because of a flaw in it was to say the flaw could not be seen more than 3 metres away and therefore the mirror was acceptable as installed.
Mr Edmonds gave evidence that the glass in the balustrades was flawed and contained imperfections. This was not challenged. The respondent, however, maintained you could not see the flaws from more than 3 metres away and therefore the glass was acceptable. Additionally, the respondent asserted that there were no marks or scratches present at practical completion.
The respondent's response to these complaint items completely ignored the fact that Mr Edmonds, whose expertise was not challenged, said the imperfections were caused during the manufacturing process. This is also despite the respondent's own building expert agreeing that there were imperfections in the glass and that an independent assessor should investigate and report.
The issue of the scratches was somewhat different. Mr Edmonds gave evidence that the scratches were not caused by fair wear and tear and would most likely have been caused during the construction of the home. No contrary expert evidence was called by the respondent.
Control joints
Time was wasted at the hearing regarding the issue of control joints in the western boundary wall. A simple test performed at the inspection of the property proved the existence of the control joints. Had the respondent's response to the claim from the outset been that there were control joints but they had been rendered over, and accepted the claim and agreed to rectification work ‑ as it eventually did (with the exception of the requirements in relation to painting of the wall) ‑ time and costs could have been saved.
Termite report
It was not until the Tribunal attended the property for a viewing that the respondent organised the correct white ant certificate to be placed in the property's meter box.
Underfloor heating
The applicant led expert evidence that there was a leak in the underfloor heating system. The respondent did not lead any contrary evidence but said that when the system had been commissioned, it worked, and if there were leaks, they could have been caused by work undertaken by the applicant's contractors working on the pool and rill. No evidence was led by the respondent as to how those contractors could have caused the leaks, positioned as they were inside the house and a significant distance from the pool and rill.
Hot water to kitchen
The applicant led evidence that was not challenged that the hot water in the kitchen was not 'hot'. The respondent's response was that the hot water system was installed where the applicant requested it to be and the kitchen tap was within an acceptable distance from the hot water system. The respondent's expert building witness, Mr Liptrot, agreed that an acceptable standard for a builder was to have hot water in a kitchen that was hot, not lukewarm.
Conclusion
Although the Tribunal has a broad discretion to award costs, it is clear that it needs a good reason to depart from the general principle that parties will bear their own costs: Tessier and Commissioner of State Revenue [2016] WASAT 40 at [49].
The Tribunal accepts that the case was complex inasmuch as there was a vast array of different complaint items affecting a great many different aspects of the build. The Tribunal also accepts that it was reasonable, if not necessary, for the applicant (as was the respondent) to be legally represented so as to ensure the case was presented in a more structured way than most building disputes before the Tribunal.
The claim was for a significant sum and involved many different experts. The organisation of the hearing was important to ensure it proceeded in a timely and efficient manner.
The Tribunal also accepts, as it must, that it is not for the respondent to prove it is not responsible for faulty workmanship, but for the applicant to prove it is. The respondent is entitled to put the applicant to proof of its claims.
The respondent required the applicant to go to hearing to prove its claim where, in many instances, there was clear expert evidence supporting the applicant's claim, and the respondent did not call any expert evidence to challenge the applicant's claim.
The Tribunal is of the view that some of the responses to the claims of the respondent were implausible (the underfloor heating response) or unreasonable (the termite report, the hot water system, the cabinetry, and - after reviewing the expert reports prepared by Mr Graziani and Mr Dawson ‑ the pond/rill items).
The respondent chose, as it was entitled to, to put the applicant to proof of all of its claims. The applicant had to go to hearing and expend the money on legal fees and expert fees to put her in the position she would have been in if the respondent had performed the work the subject of the claims in a proper and proficient manner.
The underlying consideration for the Tribunal in determining the applicant's application for costs, as it is with all cost applications, is whether the justice of the case supports moving away from the initial position that each party should bear their own costs.
The Tribunal in Lai & Anor and Costa[2006] WASAT 117 (S) at [18] said:
There will be some cases in which an injustice could result by not allowing costs to be recovered. In this particular area of jurisdiction, it is frequently the case that costs have to be incurred in engaging engineering or building consultants. The inability to recover costs may, in some circumstances, have the practical [effect] of precluding an application being made because even when the prospects of success are considered to be high, the final benefit achievable after deduction of irrecoverable costs may not justify the proceedings. Such a result would not be in the public interest.
This is one such case. The Tribunal finds it is fair and reasonable, taking into account all the circumstances ‑ including the nature of the jurisdiction exercised by the Tribunal ‑ to order the respondent to pay some contribution to the applicant's legal and expert costs.
What should that contribution be?
In assessing costs, the Tribunal takes a 'robust and broad-brush approach', and bases its determination on what reasonable allowance should be made for the work necessarily done to bring the proceedings to a conclusion: Medical Board of Australia and Costley [2013] WASAT 2 at [66].
The Tribunal accepts that the costs awarded are compensatory and not punitive in nature.
The Tribunal does not accept that the high quantum of legal costs claimed by the applicant was largely caused by the manner in which the applicant chose to conduct the proceedings. The applicant dealt on the papers with as many matters as was reasonable. The Tribunal did, in fact, raise with the respondent's counsel the issue of the time, and therefore legal costs, spent disputing items of relatively little value. The respondent's counsel's response was that the respondent was entitled (as it was) to challenge and have heard all complaint items regardless of the amount of the claim.
In assessing what is an appropriate quantum of legal costs, the Tribunal has had regard to the submissions by the respondent in respect of the matters outlined in its submissions and the Tribunal's knowledge of the proceedings. The Tribunal is also aware that what is sought by way of costs by the applicant is unlikely to be the full costs charged to the client, and has had regard to them on the basis of a party/party costs claim.
The Tribunal finds an appropriate and fair amount of legal costs to be paid by the respondent to the applicant is $65,000.
This assessment is calculated by allowing for what the Tribunal considers is a reasonable fee for the major cost items ‑ such as the preparation of the witness statements, the evidence matrix and the preparation of the applicant's bundle of documents ‑ together with an allowance for all the various correspondence and appearances at the Tribunal other than at the final hearing.
The amounts claimed by the applicant for preparation time for the hearing and attendance at the final hearing was agreed by the respondent as being reasonable and I have therefore allowed them in full.
The respondent had taken issue with the charge for the attendance of two practitioners at the hearing. I have allowed for the attendance of both practitioners. On the first two days of the hearing there were many witnesses, and having a junior attend assisted in the smooth running of the proceedings. Additionally, Ms McCubbing, who appeared with Mr Shaw for the applicant, answered questions during the hearing and identified where documents could be found in the many hearing books, and in that way contributed to the general efficiency of the hearing of the matter and the minimisation of costs.
The respondent does not challenge the quantum of the disbursements (excluding the experts' fees) other than the facsimile fees. The Tribunal finds these fees, with the exception of the facsimile fees, to be reasonable and allows them in full.
The respondent appears to challenge the need to call other witnesses besides Mr Harrison, or to call Mr Harrison as well as the other experts. The applicant could not have progressed her claim without the expert's reports and their attendance at hearing.
The Tribunal was assisted by and relied upon the evidence of Mr Zurhaar and Mr Needs, together with that of Mr Harrison, in determining the tiling complaint items.
Mr Liptrot, the respondent's own expert witness, agreed at the expert conferral that further investigation needed to be conducted in respect of the tile complaint items in addition to that of Mr Harrison, and it was following the expert conferral that the applicant engaged Mr Zurhaar and Mr Needs.
In regard to the pool items, the applicant had engaged and obtained reports of two experts in addition to Mr Harrison. Again, the Tribunal finds that the applicant could not have progressed this claim without the expert reports of Mr Graziani and Mr Dawson. Their attendance at the hearing was necessary because the respondent required them for cross‑examination. The Tribunal was assisted by and relied upon the evidence of Mr Graziani and Mr Dawson, together with that of Mr Harrison, in determining the pool complaint items.
Mr Edmonds was engaged to prepare an expert report for the applicant following the expert conferral at which Mr Liptrot agreed a glass expert should be consulted. In these circumstances, it was appropriate for the applicant to engage the services of Mr Edmonds. Additionally, the Tribunal was assisted by and relied upon the evidence of Mr Edmonds.
The Tribunal did not rely upon the report of Mr Dryka and Arrow Point Inspections in making its determination; the expert reports of Arrow Point Inspections and Prompt Engineering were not integral to determining the complaint items they supported.
The Tribunal declines to make an order in respect of the expert costs for Mr Dryka and Arrow Point Inspections and Prompt Engineering fees.
The charges for MDW's report were made part of a complaint item which was dismissed by the Tribunal at the substantive hearing.
The quantum of Mr Harrison's fees are challenged by the respondent on the basis they are excessive, given the respondent says his evidence was rendered otiose by the evidence of other experts.
The Tribunal does not accept that proposition. The transcript of the hearing will show that Mr Harrison gave evidence in concert with the other expert witnesses and his attendance at the hearing was necessary on all the occasions he was present.
The respondent considers the quantum of costs sought for all other experts as fair and reasonable, and the Tribunal agrees.
The Tribunal finds the expert fees of Mr Harrison, Mr Zurhaar, Mr Needs Mr Graziani, Mr Dawson and Mr Edmonds reasonable and orders them to be paid by the respondent.
Order
For the above reasons, the Tribunal orders as follows:
1.The respondent is to pay a contribution to the applicant's legal and expert costs fixed in the sum of $113,430.
I certify that this and the preceding [88] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MS P LE MIERE, MEMBER
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