The following principles can be gleaned from the discussion of the applicable criteria for the grant of leave to review under s 58(2) of the [BSCRA] Act as discussed in [Filimon]:

1. It is necessary to show that the decision of the original Tribunal was wrong or attended with sufficient doubt.
2. It must be shown that if leave were not to be granted, the applicant would suffer a substantial injustice.
3. It will normally not be sufficient that the decision appealed from is apparently wrong or attended with doubt. Something more will need to be shown, such as that there is a significant question of law to be considered, or some other feature, which requires the consideration of the Tribunal to avoid a substantial injustice of [sic if] leave were not to be granted.
4. The decisions of the original Tribunal are not to be read minutely and finely with an eye keenly attuned to the perception of error.
5. A broad view should be taken of all the material before the original Tribunal, and this Tribunal should be slow to grant leave to review or to allow reviews except in cases where, clearly, there is no discernible basis for the decision or, for example, where fundamental rules of natural justice have been breached.
6. Leave may be granted in respect of only some and not other grounds of the proposed review.
7. Having regard to the objects of the Tribunal, and because any review is by way of a hearing de novo, there is all the more reason to be particularly discerning about whether sufficient doubt exists to open the possibility of leave being granted.
8. In considering challenges to the weight of evidence, regard must be given to the expertise of the members of the original Tribunal.

The Original Tribunal's reasons for the Refusal Decision

1. The Original Tribunal's reasons for the Refusal Decision were set out in the Reasons for Decision at [144] to [152] as follows:
   1. The most significant amount, other than amounts associated with the completion of the Works, is the claim for 'loss of opportunity' in the sum of $25,000 in respect of the government building subsidy.
   2. On the basis of the very limited evidence produced, the Tribunal is not satisfied that this is an amount that can be awarded to the home owners. In particular, there is no evidence before the Tribunal as to how the government building subsidy process functioned or the specific circumstances of the home owners' subsidy application in order for the Tribunal to be satisfied and make a finding that the home owners would have received the subsidy but for the builder's termination of the Building Contract.
   3. The limited evidence of the home owners in respect of this claimed amount is set out in Mr Petsos' witness statement at [72] to [79]. The limited correspondence relied upon by the home owners does not assist the Tribunal in understanding how the government subsidy process applied with respect to any application by the home owners or to be satisfied that the they would have otherwise received the subsidy but for the purported termination by the builder.[3]
   4. There is no evidence before the Tribunal as to any other requirements or criteria required to be satisfied in order for the government subsidy to be paid, other than the references to $150,000 needing to have been paid to the relevant builder.
   5. The Tribunal notes that the letter from WA Revenue dated 2 May 2023,[4] almost two years after the builder issued his notice of termination dated 25 May 2021, states relevantly:

Your application for this grant has been declined because you no longer have an active building contract to build a new home.

If a renovation contract is terminated by either the client or the builder, the agreement made to substantially renovate the home is no longer considered to be valid.

Unfortunately, supporting evidence and information provided shows that this did not occur. Your building contract was terminated unilaterally by the builder.

This is not a circumstance where we are able to consider a replacement contract.

Due to this, you are ineligible for the Federal HomeBuilder Grant.

If you believe this decision is incorrect, you may request an independent review by the Review Branch of RevenueWA within 60 days after the date of this decision.

1. The 'supporting evidence and information' referred to in this letter has not been provided to or otherwise identified in the evidence before the Tribunal. It is also noted that the letter refers on a number of occasions to the Building Contract having been terminated by the builder. However, the clear position in the related proceedings, and the evidence relied upon by the home owners, is that:

(a) from shortly after the issue by the builder of his notice of termination, the home owners have maintained the position that his termination was invalid; and

(b) until such time as the home owners issued their own notice of termination in July 2022, they maintained that the Building Contract was still in effect.

1. However, even on the home owners' position, the Building Contract had been terminated by them well in advance of the letter from WA Revenue dated 2 May 2023.
2. There is no evidence before the Tribunal as to whether the home owners sought to avail themselves of the opportunity to seek an independent review by the Revenue Branch of Revenue WA, as referred to in the above letter, or to advance any position that the Building Contract had not in fact been terminated. Without evidence as to how the subsidy process worked, and what steps were taken by the home owners, or not taken as the case may be, the Tribunal is unable to make any determination in relation to the circumstances of the home owners ultimately not receiving the subsidy.
3. For these reasons, the Tribunal finds that the home owners have not established a sufficient basis to recover this amount from the builder, by way of orders made under the BSCRA Act, and the Tribunal declines to award any such amount.

1. The applicants refer to the considerations stated in Myran Holdings and contend that leave should be granted for review of the Refusal Decision for the following reasons:
   1. the decision of the Original Tribunal to refuse to award compensation in the sum of $25,000 was wrong or attended with sufficient doubt;
   2. if leave is not granted, the applicants will suffer a substantial injustice; and
   3. there is a significant question of law to be considered, which requires the consideration of the Tribunal to avoid a substantial injustice if leave is not granted.
2. The applicants rely on two grounds for the grant of leave to review the Refusal Decision:
   1. The applicants contend that the Original Tribunal erred in finding that they had failed to establish a sufficient basis to recover the sum of $25,000 in respect of the loss of opportunity to participate in the HomeBuilder Grant and declining to make a HBWC remedy order in respect of that claim (ground 1).
   2. The applicants also contend that the original Tribunal erred in finding that they had failed to adduce sufficient evidence as to how the HomeBuilder Grant operated and in declining to make a HBWC remedy order and that the Original Tribunal:

(a) failed to give weight to the relevant evidence; and

1. The applicants say that the Original Tribunal's decision to decline to exercise the discretion to award compensation in respect of the loss of opportunity to participate in the HomeBuilder Grant was either wrongly exercised or, at least attended with sufficient doubt to warrant granting leave to review the Refusal Decision and make the following submissions regarding ground 1 and ground 2.

1. The applicants submit that the requirements for them to participate in the HomeBuilder Grant were contained in the material before the Original Tribunal 'and which, in some respects, the [Original] Tribunal had regard to in assessing [the applicants'] claim for compensation'. The applicants refer to [148] of the Reasons for Decision in this regard.
2. The applicants contend that the material that was before the Original Tribunal demonstrated that in order to be eligible to participate in the HomeBuilder Grant, the applicants:

(a) had to have entered into a 'comprehensive building contract' between 4 June 2020 and 31 March 2021; and

(b) were required to pay the respondent 'a minimum of $150,000 for works done under the contract' by 31 October 2022.

1. The applicants identify the material that was before the original Tribunal as being:
   1. the application for the HomeBuilder Grant lodged by the first applicant on 20 March 2021 (Grant Application); and
   2. the letter to the applicants from Revenue WA dated 2 May 2023 (Revenue WA letter), which is referred to in [148] of the Reasons for Decision.
2. The applicants submit that, but for the respondent's purported termination of the Building Contract, they 'would have met the criteria needed to participate in the HomeBuilder Grant' because:

(a) the Building Contract satisfied the requirement set out in [27(a)] above; and

(b) under the terms of the Building Contract the respondent was required to bring the Works to practical completion before 16 June 2021, which would have resulted in them paying the full contract price of $196,400 to the respondent prior to 31 October 2021 in satisfaction of the requirement set out in [27(b)] above.

1. The applicants submit that by purporting to terminate the Building Contract and lodging a notice of cessation with the City of Wanneroo in respect of the Works on or about 8 October 2021 the respondent deprived them of the opportunity to pay him 'the sum of $150,000 needed to participate in the HomeBuilder Grant'.
2. The applicants submit that there was a direct causal link between the respondent's conduct and them not being entitled to participate in the HomeBuilder Grant.
3. The applicants submit that the original Tribunal erred 'in refusing to exercise the discretion to award them compensation in the terms sought'.

1. The applicants submit that the Original Tribunal erred by refusing to exercise the discretion to award compensation having regard to the failure to give weight to the matters referred to by the applicants (which are set out in [26] to [31] above).
2. The applicants also submit that the Original Tribunal took into account irrelevant considerations because the matters referred to in the Reasons for Decision at [151] were irrelevant in that:

(a) at the time of receiving the Revenue WA letter the applicants were outside the requirement to pay $150,000 to the respondent by 31 October 2022;

(b) an independent review of Revenue WA's decision would not, therefore, have materially impacted the outcome even if the applicants did seek a review;

(c) the respondent did not advance any arguments concerning any alleged failure by the applicants to mitigate their loss arising from the loss of opportunity to participate in the HomeBuilder Grant program; and

(d) 'for the sake of completeness', there is nothing the applicants could have done to attempt to mitigate their loss on the basis that at the time Revenue WA handed down its decision to the applicants:

(i) the applicants could not have entered into any replacement contract as they were outside the relevant timeframe to have a new contract considered for eligibility; and

(ii) even though the respondent's purported termination of the Building Contract was not valid, by that time he had suspended the Works such that the applicants could not have utilised the Building Contract to claim the HomeBuilder Grant.

1. The applicants submit that the Original Tribunal erred 'in declining to exercise the discretion to award compensation in respect of the loss of opportunity to participate in the HomeBuilder Grant by reference to the matters in [151] of the [Reasons for Decision]'.

Why the applicants say that if leave is not granted, substantial injustice will be suffered

1. The applicants submit that if the Tribunal finds that the Refusal Decision was wrong or attended with sufficient doubt 'the facts of this matter would be closely aligned to the circumstances in [Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 15 (Deshmukh)] to warrant the grant of leave for review of the Refusal Decision'.

Why the applicants say there is a question of law to be considered

1. The applicants refer to the decisions in Deshmukh and Jennings and Howlett [2019] WASAT 133 (Jennings). Those decisions concerned the failure of the original Tribunal in those proceedings to properly exercise its discretion under s 43(1) and s 36(1) of the BSCRA Act respectively.
2. The applicants submit that 'the question of whether the [Original] Tribunal erred in the exercise of the discretion to award a HBWC Remedy Order to [the applicants] in the current instance is a question of law which the Tribunal should give leave to consider for the purposes of s 58(5) of the [BSCRA] Act'.

1. The respondent submits that the Reasons for Decision at [144] to [152] make it clear that the applicants failed to establish their claim, with the Original Tribunal on numerous occasions citing the limited evidence or lack of evidence, or lack of supporting evidence or no evidence adduced by the applicants at [145], [146], [147], [149] and [150].
2. The respondent submits that in circumstances where the applicants carried the burden of proof and failed to adduce relevant and cogent evidence it cannot be said that the Refusal Decision was wrong or attended with sufficient doubt.
3. The respondent further submits that there can be no injustice suffered by the applicants in this matter where they failed to adduce relevant evidence and there is no error of law made by the original Tribunal.
4. The respondent says that the Original Tribunal's explanation of its reasons for the Refusal Decision in the Reasons for Decision at [144] to [152] is plain and clear.

1. The applicants contend that leave should be granted for review of the Dismissal Decision because:
   1. it was wrong or attended with sufficient doubt;
   2. the applicants will suffer a substantial injustice if leave to review is not granted; and
   3. there is a significant question of law which needs to be considered to avoid a substantial injustice to the applicants if leave to review is not granted.

Was the Refusal Decision wrong or attended with sufficient doubt?

1. I do not accept the applicants' submission that the requirements for them to participate in the HomeBuilder Grant scheme were contained in the material before the Original Tribunal for the following reasons.
2. The material which was before the Original Tribunal was:
   1. The Grant Application.[5]
   2. The Revenue WA letter.[6]
   3. A printout from the Office of State Revenue (OSR) online services portal dated 22 January 2022 (Portal Printout).[7]
   4. An email to the applicants from the Housing Grants Schemes Grants and Subsidies Officer, Sean dated 23 November 2021 (Grant Scheme Email).[8]
   5. The witness statement of the second applicant, Mr Petsos referred to in the Reasons for Decision at [151] (Mr Petsos' witness statement).
3. The applicants contend that the Grant Application and the Revenue WA letter are sufficient evidence to prove that the applicants would have qualified for the HomeBuilder Grant if the respondent had not invalidly purported to terminate the Building Contract and abandoned the Works. The applicants contend that the reason they would have qualified was because the Building Contract was 'a comprehensive building contract' and they would have paid the respondent the contract price of $196,400 prior to 31 October 2022, which exceeded the minimum amount of $150,000 to 'participate in the HomeBuilder Grant'.
4. The Grant Application, in Part G, lists six documents as having been uploaded with the application. One of those documents, described as 'Home Building Contract.pdf', was likely to have been the Building Contract. However, there was no evidence presented to the Original Tribunal to confirm this. The other five documents listed in Part G were not put into evidence before the Original Tribunal.
5. Mr Petsos' witness statement refers to the Grant Application, the Grant Scheme Email, the Portal Printout and the Revenue WA letter, but not to any other documents in relation to the applicants' application for the HomeBuilder Grant.
6. The Portal Printout shows that the Grant Application was lodged on 20 March 2021 and that a notification was sent to the applicants on 23 March 2021 which confirmed that the Grant Application had been received and stated that the applicants should expect to receive a response within 8 weeks (emphasis added).
7. The Grant Scheme Email states; 'Following on from our correspondence over the phone, to be eligible for the Federal Homebuilder grant substantial renovation you must provide proof of invoices and receipts to show that at least $150,000 has been paid to the builder under the contract signed with them' (emphasis added).
8. The Revenue WA letter states that 'Grant approval cannot be made prior to a minimum of $150,000 being paid to the builder for works done under the contract, as this is the minimum contract value to be considered eligible for the HomeBuilder Grant. Eligibility is determined at that point ... Our evidence shows you reached $123,782.10 when your contract was terminated, below the required $150,000 in receipts.' and subsequently refers to 'supporting evidence and information provided' and states that the applicants 'are ineligible for the Federal HomeBuilder Grant'. (emphasis added).
9. The Portal Printout states that the applicants should expect to receive a response within 8 weeks from 23 March 2021. The applicants did not provide any evidence to the Original Tribunal of any response they received to the Grant Application.
10. The Grant Scheme Email refers to 'correspondence over the phone'. The applicants did not provide any details to the Original Tribunal of what was discussed during that phone conversation.
11. The Revenue WA letter refers to supporting evidence and information provided to it. The applicants did not provide to the Original Tribunal the evidence and information which they had provided to Revenue WA.
12. The Revenue WA letter states that eligibility for the HomeBuilder Grant is determined at the point when a minimum of $150,000 has been paid to the builder for works done under a contract and that the evidence it held showed that the applicants had paid $123,782.10 when their contract was terminated. This indicates that the applicants' eligibility for the HomeBuilder Grant had not been considered prior to the time when the Revenue WA letter was sent to the applicants. This left open the question of whether evidence had been given to Revenue WA by the applicants to satisfy all other criteria for the HomeBuilder Grant apart from payment of a minimum of $150,000.
13. For the Original Tribunal to have been able to determine whether the applicants would have satisfied the criteria to be eligible for the HomeBuilder Grant if the respondent had not purported to terminate the Building Contract and abandoned the Works it first would have had to ascertain what those criteria were and then consider all the evidence which the applicants had given to Revenue WA.
14. The applicants did not provide evidence of the eligibility criteria for the HomeBuilder Grant to the Original Tribunal, nor all the evidence which the applicants had given to Revenue WA in support of their application for the HomeBuilder Grant.
15. The reference in the Reasons for Decision at [145] to the very limited evidence produced and the statement that there was no evidence before the Original Tribunal as to how the government building subsidy process functioned or the specific circumstances of the applicants' subsidy application in order for the Original Tribunal to be satisfied and make a finding that the applicants would have received the subsidy but for the respondent's purported termination of the Building Contract was correct.
16. Likewise, the statement in the Reasons for Decision at [146] that the limited correspondence relied upon by the applicants did not assist the Original Tribunal in understanding how the government subsidy process applied with respect to any application by the applicants or to be satisfied that they would have otherwise received the subsidy but for the purported termination by the respondent is correct.
17. The statement in the Reasons for Decision at [147] that there was no evidence before the Original Tribunal as to any other requirements or criteria required to be satisfied in order for the government subsidy to be paid, other than references to $150,000 needing to have been paid to the relevant builder is not entirely correct. That is because the Revenue WA letter also states that to be eligible for the Federal HomeBuilder Grant a person must have signed a comprehensive building contract between 4 June 2020 and 31 March 2021.
18. However, that omission does not detract from the correctness of the statements made by the original Tribunal in the Reasons for Decision at [145] and [146], to which I have referred in [58] and [59] above. I note that in Myran Holdings the Tribunal stated that the decision of the original Tribunal in a proceeding is not to be read minutely and finely with an eye keenly attuned to the perception of error.
19. In ground 2 the applicants contend that the statement in the Reasons for Decision at [151] that there was no evidence before the original Tribunal as to whether the applicants sought to avail themselves to seek an independent review of the decision that they were ineligible for the HomeBuilder Grant was an irrelevant consideration because the respondent did not advance any arguments concerning any alleged failure by the applicants to mitigate their loss.
20. I accept this contention. However, the statement which follows it in [151] that without evidence as to how the subsidy process worked, and what steps were taken by the applicants, or not taken as the case may be, the Original Tribunal was unable to make any determination in relation to the circumstances of the applicants ultimately not receiving the subsidy was correct and consistent with statements made by the Original Tribunal in the Reasons for Decision at [145] and [146], to which I have referred in [58] and [59] above.
21. The irrelevant consideration referred to in [60] above did not detract from the correct finding by the Original Tribunal that the applicants had not provided evidence to establish that they would have satisfied the requirements to obtain the HomeBuilder Grant if the respondent had not invalidly purported to terminate the Building Contract and ceased the Works. I again note that in Myran Holdings the Tribunal stated that the decision of the original Tribunal in a proceeding is not to be read minutely and finely with an eye keenly attuned to the perception of error.
22. For the reasons above, I have concluded that the Refusal Decision was not wrong or even attended with any doubt.

Will the applicants suffer a substantial injustice if leave to review is not granted?

1. Considering I have decided that the Refusal Decision was not wrong or attended with sufficient doubt, it follows that there will be no injustice to the applicants if leave to review is not granted.

Is there a significant question of law which needs to be considered?

1. The applicants refer to the decisions in Deshmukh and Jennings which concerned the failure of the original Tribunal in those cases to properly exercise its discretion under s 43(1) and s 36(1) of the BSCRA Act respectively, which was an error of law.
2. In Deshmukh at [57] to [60], as the Senior Member who constituted the Tribunal, I decided that:
   1. to properly exercise the discretion conferred by s 43(1) of the BSCRA Act to make a HBWC remedy order the Tribunal must form an opinion whether a HBWC remedy order is justified and if the requisite opinion is formed then the Tribunal must exercise the discretion conferred in s 41of the Act to make one or more of the orders specified in s 41(2) of the Act; and
   2. to be satisfied that a HBWC remedy order is justified the Tribunal must find that there is a valid home building work contract between the applicant and respondent which the respondent has breached and that the applicant has suffered loss or damage caused by that breach which can be addressed by a HBWC remedy order.
3. In this matter the discretion for the Original Tribunal to make a HBWC remedy order was not enlivened because the Original Tribunal correctly decided that the applicants had not established that they had suffered loss or damage by not being able to obtain a HomeBuilder Grant due to the breach of the Building Contract by the respondent.
4. Therefore, the Original Tribunal did not err in the exercise of its discretion under s 43(1) of the BSCRA Act and there is no question of law to be considered.

Should the applicants be granted leave to review the Refusal Decision?

1. For the reasons I have given, I have concluded that the Refusal Decision was not wrong or attended with sufficient doubt and the applicants will not suffer a substantial injustice if leave is not granted to review that decision.
2. Accordingly, I will make orders refusing leave to review the Refusal Decision and dismissing the application for review.

1. I note that in his written submissions the respondent seeks costs if the application for leave is refused.
2. Therefore, I will make orders to allow the respondent to apply for his costs and to provide that if the respondent applies for costs the applicants may file written submissions in opposition and the application for costs will be determined on the documents.

A final observation - does the applicants' legal representative have a conflict of interest?

1. I note that the legal representative for the applicants in this proceeding, Vogt Legal was the legal representative for the applicants in the proceedings before the Original Tribunal.
2. The Original Tribunal made the Refusal Decision because there was no evidence before it as to how the government building subsidy process functioned, or the specific circumstances of the applicants' application for the subsidy, for the Original Tribunal to be satisfied and make a finding that the applicants would have received the subsidy (the HomeBuilder Grant) but for the respondent's purported termination of the Building Contract.
3. The Original Tribunal referred to the limited evidence before it from the applicants and stated that the limited evidence did not assist the Original Tribunal in understanding how the government subsidy process applied with respect to the applicants' application for the subsidy, or to be satisfied that they would have otherwise received the subsidy (the HomeBuilder Grant) but for the purported termination of the Building Contract by the respondent.
4. I have found that the Original Tribunal was correct in making those findings and, consequently, that the Refusal Decision was not wrong or even attended with any doubt.
5. I have observed that the starting point for the original Tribunal to have been able to determine whether the applicants would have satisfied the criteria to be eligible for the HomeBuilder Grant would have been to ascertain what those criteria were and that the applicants did not provide to the original Tribunal evidence of those criteria.
6. If the applicants had provided to the Original Tribunal more comprehensive evidence regarding the HomeBuilder Grant, including the criteria to be eligible to obtain it, and all the materials they provided to Revenue WA in support of their application for the subsidy it might have been possible for the Original Tribunal to be satisfied that the applicants would have been eligible to receive the subsidy if the respondent had not purported to terminate the Building Contract and abandoned the Works.
7. In these circumstances it seems to me that Vogt Legal may have been remiss in their preparation and presentation of the applicants' case seeking a HBWC remedy order for their claimed loss of opportunity to obtain the HomeBuilder Grant and there may be a conflict between the best interests of the applicants and the interests of Vogt Legal. That is a matter for Vogt Legal to consider and address.

1. Leave is refused for review of the decision of the Tribunal in Matter Number CC 15 of 2021 to decline to award the amount of $25,000 claimed by the applicants as a loss of opportunity to obtain the HomeBuilder Grant.
2. The application for review is dismissed.
3. The respondent has liberty to apply for his costs by filing with the Tribunal and giving to the applicants by 16 December 2025:

(a) a schedule of the costs claimed in sufficient detail to enable the Tribunal to fix any costs which might be awarded, together with any supporting documents upon which the applicants wish to rely; and

(b) written submissions stating the basis upon which it is contended costs should be awarded and the basis upon which the amount of costs claimed is calculated.

1. If the respondent makes an application for costs under order 3 above, the applicants may file with the Tribunal and, if so, must give to the respondent, written submissions and any supporting documents on which the applicants wish to rely in opposition to the application for costs by 20 January 2026.
2. Subject to any further order, after 20 January 2026 the application for costs is to be determined entirely on the documents pursuant to s 60(2) of the State Administrative Tribunal Act 2004 (WA) and the Tribunal will fix the amount of any costs awarded in the same determination.

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

[2] Matter Number CC 14 of 2023, Matter Number CC 15 of 2021 and Matter Number CC 372 of 2023.

[3] Exhibit 1, email from Revenue WA dated 23 November 2021 at p 343 and letter from Revenue WA dated 2 May 2023 at pages 510 - 511.