(d) by reason of [97(b)] above, para 2(c) of the consent orders has not been complied with.

1. Given that the parties still appear to be locked in dispute over a pool which shell was constructed around 15 years ago, and Imperial Pools are not resisting an order for costs to be made under s 36 (1)(b) of the BSCRA Act, the Tribunal will revoke that part of para 2(a) of the consent orders referred to in [97(b)] above and para 2(c) of the consent orders, and make an order under s 36(1)(b) of the BSCRA Act for payment of the sum set out in the quote.
2. Applications for costs in relation to these proceedings have been made or foreshadowed by the parties, with the owner having filed documents supporting his application for costs. The parties agreed that these applications could be dealt with entirely on the basis of documents without the need for attendance by the parties under s 60(2) of the State Administrative Tribunal Act 2004 (WA). The Tribunal will invite Imperial Pools to file their submissions and documents on costs and allow responsive submissions and documents to be filed by the owner.

1. that part of para 2(a) of the consent orders dated 4 October 2016 in proceedings CC 1464/2016 requiring the respondents to 'provide a finish to the wall that is consistent with and matches the finish on the rest of the wall so that evidence of the repairs is no longer visible' be revoked;
2. paragraph 2(c) of the consent orders dated 4 October 2016 in proceedings CC 1464/2016 be revoked;
3. the respondents pay to the applicant the sum of $4,758.05 pursuant to s 36(1)(b) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA);
4. by 9 October 2020, the respondents are to file with the Tribunal and give to the applicant written submissions, and all documents on which they wish to rely which have not already been filed with the Tribunal and given to the applicant, in respect of the parties' respective applications for costs under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA); and
5. by 30 October 2020, the applicant is to file with the Tribunal and give to the respondents any written submissions in response to the respondents' written submissions, and any further documents on which he wishes to rely which have not already been filed with the Tribunal and given to the respondents, in respect of the parties' applications for costs under s 49 of the _Building Services (_Complaint Resolution and Administration) Act 2011 (WA).

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.

ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)

CITATION : EVANS and IMPERIAL POOLS [2020] WASAT 113 (S)

Building services complaint - Costs - Successful party - Weakness of party's case - Whether rejection of Calderbank offer needs to be unreasonable where seeking party-party costs

Building Services (Complaint Resolution and Administration) Act 2011 (WA), s49, s 49(7)

Legal Profession (State Administrative Tribunal) Determination 2018 (WA)

State Administrative Tribunal Act 2004 (WA), s 87, s 87(1), s 87(2), s 87(3), s 87(4), s 87(5), Pt 4, Div 5

State Administrative Tribunal Rules 2004 (WA), r 40, r 40(4), r 41, r 41(1), r 41(2), r 42(2)

Chew and Director General of the Department of Education and Training [2006] WASAT 248; (2006) 44 SR(WA) 174

Evans and Gumtree Pty Ltd trading as Imperial Pools & Ors [2020] WASAT 113

Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115, (2009) 41 WAR 1

Italiano v The Water Corporation [No 2] [2020] WASC 112 (S)

Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR(WA) 194

Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)

McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S); (2011) 185 LGERA 118

Medical Board of Australia and Costley [2013] WASAT 2;(2013) 83 SR(WA) 1

Pearce & Anor and Germain [2007] WASAT 291(S)

Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470

Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388

Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S)

Western Australian Planning Commission and Scutti [2019] WASAT 99

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81

1. On 20 January 2020, the applicant (owner) made an application (primary application) to the Tribunal seeking an order for the respondents (collectively Imperial Pools) to 'pay costs' on the basis that the latter have not complied with consent orders made by the Tribunal (consent orders) for certain remedial works to be completed to the swimming pool in his home.
2. On 18 September 2020, the Tribunal determined that Imperial Pools had complied with the consent orders as to works to seal the leak to the pool and to repair the tiling to the top of the pool: Evans and Gumtree Pty Ltd trading as Imperial Pools & Ors [2020] WASAT 113 (Evans) at [70], [93] and [97].
3. The Tribunal found, as conceded by Imperial Pools, that Imperial Pools had not complied with the consent orders as they relate to providing the requisite finish to the overflow wall and to make good all affected areas: Evans at [97].
4. The Tribunal effectively converted the part of the consent orders with which Imperial Pools had not complied into a monetary order for Imperial Pools to pay the owner the amount of $4,758.05.
5. Both parties seek costs in relation to these proceedings, which, for reasons set out below, the Tribunal will dismiss.

1. The background to these proceedings are set out in Evans, which should be read in conjunction with these reasons for decision on costs.
2. Following the delivery of reasons for the primary application, the Tribunal made orders for Imperial Pools to file submissions, supporting documents and a schedule of costs claimed in sufficient detail to enable the Tribunal to assess and fix costs. Imperial Pools filed their submissions and supporting documents on 9 October 2020, and their amended schedule of costs on 27 November 2020 (Imperial's schedule).
3. The Tribunal also made orders for the owner to file submissions in response to Imperial Pools' submissions, and to file any further documents in support of his application for costs. The owner filed submissions and supporting documents on 7 November 2020 and 10 December 2020, and his schedule of costs regarding the proceedings on 2 December 2020 (owner's schedule).

1. Imperial Pools seek to rely on settlement offers made to the owner on 22 July 2019 (2019 offer) and 18 February 2020 (2020 offer) in support of their application for costs, which offers were annexed to their submissions.
2. It is pertinent to note the following background to the 2019 offer.
3. The documents attached to the primary application reveal that there was a previous application lodged by the owner, CC 786 of 2019 (previous application), which had been listed for a final hearing, but which was subsequently vacated on 30 July 2019.
4. The record of Tribunal orders of CC 786 of 2019 reveal that on 30 July 2019 the Tribunal also granted the applicant leave to withdraw the previous application, and withdrew the previous application.
5. It also transpires from an email from the owner that the owner's building expert, Mr Andrew Whittle, had not been able to prepare his expert report by 30 July 2019, but had been able to do so by 11 November 2019.
6. The 2019 offer was made in relation to that previous application.
7. To the extent that there is any ambiguity about whether Imperial Pools are seeking costs in relation to the previous application, Imperial's schedule clarifies that Imperial Pools are only seeking costs in relation to the primary application, given that their claim only relates to work completed from 31 January 2020.
8. The 2020 offer, expressed to be 'without prejudice save as to costs', was an offer to pay the owner an amount of $10,000 including GST, in full and final satisfaction of all claims against Imperial Pools.
9. The amount of $10,000 including GST was calculated by reference to the cost of labour to blast the existing coating on the overflow wall and to tile the exterior of overflow wall (including rendering, applying a waterproof membrane, laying of tiles, and applying tile glue and grout).
10. Whilst the costs of the works were calculated at $8,552.50 including GST, the costs were then rounded up to $10,000 including GST to comprise the settlement offer, 'as a gesture of goodwill' by Imperial Pools which is stated to 'far exceed the cost of simply recoating the infinity wall consistent with how the wall was originally finished'.
11. The 2020 offer relevantly noted that Imperial Pools had repaired the leak which qualified experts had concluded did not (and never did) affect the structural integrity of the pool.
12. The 2020 offer stated that Imperial Pools would seek an order for the payment of their costs, and the offer (and any previous offers) would be brought to the Tribunal's attention.
13. The 2020 offer did not specify a period within which the offer was open for acceptance.

1. Imperial Pools' application for costs is expressed as an order for costs relating to their legal expenses and 'any further reasonable compensation for expenses, loss, inconvenience and embarrassment resulting from the proceeding'.
2. However, Imperial's schedule only comprises items for legal work and disbursements and expert fees, without a separate item for compensation. As such, the Tribunal treats Imperial Pools' application for compensation as one confined to the 'expenses resulting from the proceeding' identified in Imperial's schedule.
3. The amounts claimed under Imperial's schedule for legal work applies the hourly and daily rates set under the Legal Profession (State Administrative Tribunal) Determination 2018 WA (2018 Determination).
4. Imperial Pools rely primarily on the rejection of the 2019 offer and 2020 offer, contending in essence that it was unreasonable and unnecessary for the owner to have proceeded with the primary application after receipt of the 2019 offer.
5. Imperial Pools also submit that the owner's case was weak, as evident in the comprehensive rejection by the Tribunal of his and his witnesses' positions, in particular:

(a) the Tribunal's agreement with Imperial Pools' submission that it was the works required to be undertaken under the consent orders, not any underlying works that may have given rise to the remedial work, that set the parameters for the Tribunal's determination;

(b) the pertinent element of remedial work is whether the leak in the wall had been sealed by Imperial Pools;

(c) the owner's experts agreed that they did not observe water, in its liquid form, flowing from the exterior of the overflow wall;

(d) the Tribunal's finding that Imperial Pools complied with their obligation to seal the leak under the consent orders.

1. The owner's submissions do not substantively respond to Imperial Pools' application for costs of the proceedings, but instead seek to re­agitate matters that were already the subject of findings made in Evans.
2. For example, the owner challenges the adequacy of the scope of works contained in the quote prepared by Imperial Pools' expert, Mr Tim Fitzpatrick, (quote) which the Tribunal was ultimately satisfied represented the costs of works required to comply with the consent orders (Evans at [89]). The owner provides a new quote from his expert for works to the exterior of the pool wall and the pool trough.
3. The Tribunal considers that the owner had ample notice, and opportunity to challenge or adduce his own evidence at the hearing, of the scope and quantum of the works in the quote, and cannot now seek to re-agitate those issues.
4. As the scope of the orders for submissions is confined to costs related to the proceedings before the Tribunal under s 49 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act), the Tribunal will disregard the owner's submissions and new quote as it relates to the substance of the primary application, which has already been dealt with in Evans.

1. The starting position on whether the Tribunal should award a party's costs in proceedings before the Tribunal is set out in s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act), which relevantly provides that each party is to bear its own costs, unless otherwise specified in the SAT Act, the enabling legislation or orders of the Tribunal.
2. The Tribunal has the discretionary power to make an order for one party to pay another party's costs under s 87(2) of the SAT Act.
3. The power under s 87(2) of the SAT Act includes the power to make an order for the payment of an amount to compensate the other party for any expenses, loss, inconvenience or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought: s 87(3) of the SAT Act.
4. Section 49 of the BSCRA Act is one such provision under the enabling legislation which provides the Tribunal with the power to make an order for one party to pay another party's costs, and relevantly provides that:

(1) Subject to this section, the ... State Administrative Tribunal may make such orders for costs as they think fit in relation to proceedings arising from a building service complaint[.]

1. Significantly, s 49(7) of the BSCRA Act provides that s 49 of the BSCRA Act does not limit the powers of the Tribunal to make costs orders under Pt 4 Div 5 of the SAT Act.
2. As such, unless s 49 of the BSCRA Act provides to the contrary, the powers and discretion of the Tribunal to make costs orders, and hence the approach which the Tribunal has adopted, under the SAT Act remain applicable.
3. Section 87 is silent on the factors which the Tribunal is to take into account in exercising its jurisdiction under s 87(2) of the SAT Act: Summerville and Department of Education & Training & Ors [2006] WASAT 368 (S) (Summerville) at [27]; Pearce & Anor and Germain [2007] WASAT 291(S) (Pearce) at [22].
4. Some instruction is given to the Tribunal under s 87(4) of the SAT Act as to matters that might be relevant to the exercise of the discretion in relation to review proceedings, which does not include the primary application.
5. The Tribunal is also required to take into account offers which are made in compliance with rr 40 and 41 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules): s 87(5) of the SAT Act and r 42(2) of the SAT Rules.
6. Other than in the circumstances set out in [38] - [39], the factors which the Tribunal is bound to take, and precluded from taking, into account will be determined by implication from the subject matter, scope and purpose of the SAT Act: Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32; (2016) 213 LGERA 81(Questdale) at [47] - [48] per Murphy JA (with whom Martin CJ and Corboy J agreed).
7. Given the presumptive position or starting point under s 87(1) of the SAT Act that each party is to bear its own costs, the 'usual order as to costs' under which the successful party is prima facie entitled to its costs has no application: Questdale at [50].
8. Instead, 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: see Questdale at [49] and [51].
9. The onus is on the party seeking an order in its favour: Questdale at [51].

1. In deciding whether to award costs against an unsuccessful party, the fact that the proceedings should not have been maintained against the successful party because there really was 'no case to answer' (Summerville at [37]), or had no 'reasonable chance of success' (Summerville at [52]) will be relevant.
2. Concomitantly, in Pearce and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle), the Tribunal considered that where the dispute between the parties to a commercial tenancy lease was a genuine one, their respective rights were unclear and it was appropriate to seek a determination of those rights before the Tribunal, the starting point is that parties should bear their own costs: Pearce at [24], Marvelle at [34].

1. Costs orders have commonly been made in circumstances of the type recognised in Chew and Director General of the Department of Education and Training [2006] WASAT 248; (2006) 44 SR(WA) 174 at [85], such as where a party has conducted itself unreasonably or inappropriately or in such a way as to unnecessarily prolong the hearing.

Where offers of settlement do not comply with rr 40 and 41 of the SAT Rules

1. Whilst the Tribunal is not obliged to consider any offer of settlement, nor its non-acceptance, which is not made in compliance with rr 40 and 41 of the SAT Rules, it is nevertheless in the public interest for offers to be given careful consideration so that settlement of disputes is encouraged: Marvelle at [26].
2. As such, the criteria relevant to the consideration of Calderbank offers under the practice of the Supreme Court of Western Australia (as set out in [52] below) should generally extend to the Tribunal: Marvelle at [26].
3. A Calderbank offer is an informal offer made on terms expressed to be without prejudice save as to costs: see McKay v Commissioner of Main Roads (No 7) [2011] WASC 223 (S); (2011) 185 LGERA 118 (McKay) at [93].
4. A Calderbank offer can be relied upon to support an application for indemnity costs where it can be demonstrated that the unsuccessful party unreasonably rejected the Calderbank offer in the circumstances: Ford Motor Co of Australia Ltd v Lo Presti [2009] WASCA 115, (2009) 41 WAR 1 (Lo Presti) at [16] and [23].
5. Costs awarded on an indemnity basis must be distinguished from those awarded on a party-party basis, where the former allows the recovery of all costs incurred by a party except those which were unreasonable in amount or unreasonably incurred (see Strzelecki Holdings Pty Ltd v Jorgensen [2019] WASCA 96; (2019) 54 WAR 388 at [80]), while the latter allows the recovery only of those costs which were necessary or proper for the party to attain justice in the case (Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470 at 478, 488-89).
6. In determining whether the rejection of the offer was unreasonable, all relevant facts and circumstances must be considered (Lo Presti at [17]), and regard should be had at least to the following (Lo Presti at [19]):

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarity with which the terms of the offer were expressed; and

(f) whether the offer foreshadowed an application for ... indemnity costs in the event of the offeree's rejecting it.

1. However, even if not satisfied that the rejection of a Calderbank offer was unreasonable, the Calderbank offer can still be a consideration to be weighed in the discretion to award party-party costs, the weight being a matter for discretion of the court in all the circumstances of the case: (McKay) at [119]; see also Italiano v The Water Corporation [No 2] [2020] WASC 112 (S) (Italiano) at [48].

1. If satisfied that a costs order is warranted, the Tribunal embarks on a 'stringent approach to cost', (Marvelle at [35], Western Australian Planning Commission and Scutti [2019] WASAT 99 (Scutti) at [86]), taking a 'robust and broad brush approach' (Medical Board of Australia and Costley [2013] WASAT 2;(2013) 83 SR(WA) 1 (Costley) at [66]).
2. There is no prescribed scale of fees in the Tribunal in respect of party­party costs. However, the Tribunal has adopted a practice of using the relevant determination issued by the Legal Costs Committee (such as the 2018 Determination), which prescribes the maximum amount which a legal practitioner can charge a client without a written agreement as to costs, as a guide to the maximum rates which might be allowed in the Tribunal on a party-party basis for an hourly or daily rate: Marvelle at [35] - [47], Legal Profession Complaints Committee and in de Braekt [2012] WASAT 58 (S); (2012) 80 SR(WA) 194 (in de Braekt) at [53], Costley at [66] - [68].

1. The Tribunal has generally determined the primary application in favour of Imperial Pools given the following findings:

(a) Notwithstanding the owner's position that the overflow wall is still leaking, the Tribunal rejected that contention in finding that liquid water is not flowing on the exterior of the overflow wall following the crack injection, and therefore Imperial Pools have complied with that part of para 2(a) of the consent orders: Evans at [70].

(b) The Tribunal did not find any defects apparent in the tiling the subject of para 2(b) of the consent orders: Evans at [93];

(c) There was no evidence as to the costs to 'make good' paint spatter or staining such as to found an order for payment of remedial costs: Evans at [96];

(d) The Tribunal accepted the quote as the scope of works required to comply with that part of para 2(a) of the consent orders relating to the finish to the overflow wall, and with para 2(c) of the consent orders to 'make good': Evans at [89] and [96].

1. As to the outstanding works required to comply with the part of para 2(a) relating to the finish to the pool and para 2(c) of the consent orders, Imperial Pools have not contested the need to comply with those outstanding works, but contend that they were deprived of the opportunity to rectify the finish by the owner's refusal to allow further works to be completed by Imperial Pools: Evans at [36].
2. In particular, Mr Fitzpatrick stated that he considered that the final topcoat material did not bond sufficiently to the two repaired locations, and he offered to return on site to recoat the section that had not bonded sufficiently, but was informed that the owner had refused access to the site: Evans at [26].
3. That the owner had refused access to Imperial Pools or their contractors was not denied by the owner.
4. The Tribunal accepts that on the whole Imperial Pools are the 'successful party' in the sense that the issues in dispute were determined in their favour.
5. As stated above, the identification of Imperial Pools as the 'successful party' does not give rise to a prima facie entitlement to costs, nor could it, without more, be sufficient to persuade the Tribunal to depart from the starting position that each party should bear its own costs.
6. The identification of the 'successful party' does, however, narrow the field of candidates for a costs award, in the absence of any other basis for costs by an 'unsuccessful party'.
7. In this case, subject to what is said in [86], there is simply no circumstance alleged by the owner to ground an application for, or any reason given for why it would be fair and reasonable to make, a costs order against Imperial Pools.
8. The Tribunal will dismiss the owner's application for costs.

1. As to the owner's allegation that the leak on the overflow wall had not been rectified, all experts agreed that they did not observe water, in its liquid form, flowing on the exterior of the overflow wall, which supported the Tribunal's conclusion that there was no requisite leak: see Evans at [45], [53] and [61].
2. The issue, however, was far from a simple one, as it was necessary for the Tribunal to interpret the meaning of 'leak' in the consent orders in terms of the escape of liquid water rather than water vapours (which interpretation was also open, on the ordinary meaning of the term 'leak').
3. The Tribunal adopted its construction of the term 'leak' taking into account Mr Brendan Berry's evidence about the porous nature of concrete pool, which evidence was only apparent in his report of 8 May 2020 and his testimony at the hearing.
4. Further, to the extent that the term 'leak' was capable of meaning the escape of water vapours, the owner would have had a strong case in the higher moisture reading obtained by Mr Whittle on that part of the overflow wall alleged by the owner to be leaking. Indeed, Mr Berry did not dispute the higher moisture reading occurring at the point near hairline cracks as a measure of the presence of water vapours: Evans at [55].
5. As such the Tribunal is not satisfied that the owner's case had no reasonable chance of success such as to support an order for costs against him.
6. As to the owner's allegation of defective tiling, the Tribunal finds that there was not sufficient evidence led by the owner to support his case. However, the hearing (and focus of the expert evidence) was largely on the dispute over the leak on the overflow wall, and as such little weight has been given to this deficiency of the owner's case in determining whether to order costs.

1. Imperial Pools' written submissions rely to some extent on the contents of the 2019 offer. A question arises as to whether they can rely on the 2019 offer which was made in respect of the previous application:

(b) in respect of which no costs order was made; and

(c) over (what appears to be) the same subject matter as the primary application.

1. The 2019 offer was expressed to be 'without prejudice', and is more comprehensive in nature than the 2020 offer.
2. The settlement offer contained in both offers are the same ($10,000 including GST) and is calculated on the same basis.
3. The Tribunal has determined not to take the contents, or the fact of the 2019 offer, into account for the following reasons.
4. Firstly, the 2019 offer does not, and nor does the 2020 offer, comply with rr 40 and 41 of the SAT Rules. Those provisions relevantly require that:

(a) the offer specify when and how money is to be paid (r 40(4)); and

(b) the offer can only be open for acceptance until the commencement of the hearing or the expiry of a specified period (to a minimum of 14 days) (rr 41(1) and 41(2)).

1. As such the Tribunal is not obliged to take the 2019 offer, nor its non­acceptance, into account under r 42(2) of the SAT Rules.
2. As indicated in Marvelle, the Tribunal can however take into account any 'non­complying' settlement offers in consideration of the public interest in promoting the early settlement of disputes.
3. Whilst this would be a proper rationale for considering the 2020 offer, the 2019 offer was made in different circumstances, most notably before the owner had received Mr Whittle's expert report, and should not be taken into account in considering a costs application in respect of the primary application.
4. Finally, the time at which an application for costs in reliance of the 2019 offer should have been made was when the previous application was withdrawn.
5. In considering whether the 2020 offer could support an order being made in this situation, the Tribunal observes that the amounts claimed under Imperial's schedule are referrable to the rates set under the 2018 Determination. As such, the Tribunal treats Imperial Pools' application as one for party-party costs, rather than indemnity costs.
6. The Tribunal respectfully adopts the approach taken in McKay and Italiano that it is not necessary to determine whether the rejection of a Calderbank offer was unreasonable in an application for party-party costs. Instead, the Tribunal will consider whether the rejection of the 2020 offer, as part of all the circumstances of the case, indicate that it is fair and reasonable that Imperial Pools should be reimbursed for their party-party costs.
7. Having considered the factors below, the Tribunal has considered that the rejection of the 2020 offer does not support the application for party-party costs:

(a) The 2020 offer was made before the commission of Mr Berry's report of 8 May 2020, in which his opinions about the porous nature of concrete structures that were ultimately relied upon by the Tribunal in construing the term 'leak' were first expressed.

(b) Whilst Mr Berry had prepared an earlier report dated 18 July 2019, which it is assumed the owner received prior to the 2020 report, that 2019 report did not deal with the nature of concrete pools, and could be interpreted as equivocal on whether there was still a leak. For instance, whilst that 2019 report stated that 'the repair for leakage from the crack has been effective' and 'there is no evidence of moisture within the repair area', that report also acknowledged that there is some moisture evidence nearby at the bedding for the mosaic tiles over the sill, and may have left open, in the mind of a reasonable person, the possibility that there could still be a leak.

(c) The 2020 offer was made after receipt of Mr Whittle's report, which, in the Tribunal's view, fairly raised the prospect of a leak still in existence (at least in the form of water vapours) given the higher moisture reading on that part of the overflow wall alleged by the owner to be leaking. Mr Whittle's report also raised concerns about premature rusting and deterioration of the structural steel members and the concrete structure of the pool, with pool water saturating the overflow wall from the inside. In the Tribunal's view, it would have been fair and reasonable for the owner to rely on the opinions expressed in the report by Mr Whittle, whose qualifications and experience appear to qualify him as an expert in the relevant field.

1. Imperial Pools rely on the owner's non-acceptance of their settlement offers to support a case that the owner has acted unreasonably or inappropriately such as to unnecessarily prolong the hearing.
2. For reasons stated at [66] - [69] and [82], largely on the basis that the interpretation of the term 'leak' was not a simple one and given the opinions expressed by Mr Whittle in his expert report, the Tribunal considers that the owner did not act unreasonably or inappropriately in declining to accept the 2020 offer.

1. Finally, it is pertinent that there was a delay of at least nine months before Imperial Pools sealed the leak sometime in either November 2017 or 11 December 2017 (Evans at [24]), despite the consent orders requiring the rectification works to be completed by 31 January 2017.
2. Whilst the Tribunal is not satisfied that that delay, in and of itself, is sufficient to support the application for costs of the owner, who was otherwise largely unsuccessful in his primary application, that delay is another relevant factor in the Tribunal's determination that in the circumstances of this case, Imperial Pools have not demonstrated that it is fair and reasonable that they be reimbursed for their costs.

1. For the reasons stated above, the Tribunal is not persuaded that the particular circumstances of the case support the exercise of the discretion to order costs, and compensation for expenses, to be paid by the owner to Imperial Pools.
2. The Tribunal will dismiss the owner's and Imperial Pools' costs applications.

1. The applicant's application for an order that the respondents pay the applicant's costs is dismissed.
2. The respondents' application for an order that the applicant pay the respondents' costs, and compensation under s 87(3) of the State Administrative Tribunal Act 2004 (WA), is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.