WRIGHT and 3B BUILD PTY LTD - [2016] WASAT 68

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading WRIGHT and 3B BUILD PTY LTD

Details

AGLC: WRIGHT and 3B BUILD PTY LTD [2016] WASAT 68
Case: [2016] WASAT 68
Decision Date: 9 JUNE 2016

CaseChat Overview and Summary

The case before the court involved the parties Wright and 3B Build Pty Ltd. The dispute arose from a contractual agreement concerning building services, where Wright, the plaintiff, sought an order for costs against 3B Build, the defendant. The matter was heard in the State Administrative Tribunal of Western Australia. Wright applied for costs under Rule 42 of the State Administrative Tribunal Rules 2004 (WA), asserting that they were substantially successful in the proceedings. The primary legal issue before the tribunal was whether Wright was entitled to an order for costs and, if so, what amount would be fair and reasonable in all the circumstances.

The tribunal considered the nature of the proceedings, the outcome achieved by Wright, and the principle of fairness in determining whether an order for costs was warranted. It assessed the extent to which Wright's claims were successful and the resources expended by both parties. The tribunal found that Wright was substantially successful in the proceedings, justifying an order for costs. However, the tribunal also considered the principle of proportionality and the need for the order to be fair and reasonable in all the circumstances. After weighing these factors, the tribunal concluded that an order for costs was appropriate but needed to be adjusted to reflect the overall fairness of the situation.

Ultimately, the tribunal decided that an order for costs should be made in favour of Wright, but it should be reduced to account for the overall fairness and proportionality of the situation. The tribunal carefully considered the evidence and submissions from both parties before arriving at its decision. The final orders reflected the tribunal's determination that Wright was entitled to an order for costs, albeit at a reduced amount that balanced the principle of fairness with the need to compensate Wright for their efforts.

Orders