Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49(1)

State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2)

Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175

Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336

Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62

Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S)

In Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)

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

McLerie and Koleszko [2014] WASAT 160 (S)

Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302

State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146

Sweetman and Skytree Homes Pty Ltd [2025] WASAT 104

Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32

1. On 25 September 2025 I refused the respondent's application for leave to rely on a report to be prepared by a nominated building inspector filed on 15 August 2025 (leave application) for the reasons published in Sweetman and Skytree Homes Pty Ltd [2025] WASAT 104 (Reasons for Refusal).
2. The applicants have applied for their costs of opposing the leave application.
3. For the reasons which follow, I have decided to award costs of $6,450 to the applicants.

1. The applicants are seeking costs of $6,727.60 for the work done by the applicants' legal representative, Lang Litigation & Construction Law in relation to the leave application, which are set out in a schedule attached to their costs application.
2. The applicants refer to McLerie and Koleszko [2014] WASAT 160 (S) (McLerie and Koleszko) at [3][1] where the Tribunal considered the factors and circumstances it might take into consideration when determining whether to make a costs order.
3. The applicants' submissions in support of their costs application, by reference to those factors, are as follows:
   1. The conduct of the respondent in making the leave application at a late stage of the proceeding was unreasonable and/or inappropriate.
   2. The conduct of the respondent in respect of the leave application was also unreasonable having regard to the matters identified in the Reasons for Refusal at [80] - [81].
   3. The respondent has been legally represented in the proceeding since 24 February 2025 and made a decision as to how to defend the allegations made by the applicants. The respondent had approximately 15 people inspect the applicants' dwelling over three separate days and had lodged its evidence with the Tribunal and the matter had been listed for a final hearing. For the respondent to then change lawyers and to seek to 'go back and start again' with expert evidence on liability would necessitate vacating the final hearing and cause substantial delay in the matter being determined by the Tribunal. This would undermine the process of resolving the building complaint fairly and efficiently and thus the integrity of the proceeding, in the sense of reliability.
   4. The leave application was weak and obviously lacking in merit, which was made apparent to the respondent at the directions hearing on 4 September 2025 when orders were made for the filing of written submissions. The application should not have been 'pressed' as it was doomed to fail.

1. The respondent's submissions in opposition to the costs application are as follows:
   1. The respondent refers to the matters mentioned in the Reasons for Refusal at [80] and says that if it had provided evidence in respect of those matters it would have required a substantial disclosure of legal advice amounting to a waiver of legal professional privilege.
   2. The respondent's conduct in making the leave application was not unreasonable in the circumstances and at the directions hearing on 4 September 2025 the Tribunal observed that it understood why the leave application was being brought. The Reasons for Refusal do not state 'or otherwise imply' that by making the leave application the respondent was acting unreasonably or inappropriately.
   3. The respondent made the leave application to attempt to address substantial prejudice which had emerged from the manner in which the respondent's former legal representative had conducted the proceeding on the respondent's behalf and it would have been unreasonable and inappropriate for no attempt to be made to address that prejudice.
   4. It is unclear how the conduct of the respondent in making the leave application could undermine the integrity of the proceeding in any sense. There is no suggestion that the application was brought in anything other than in good faith or for an ulterior purpose.
   5. The respondent does not accept that the leave application was lacking in merit. Although the leave application 'invoked a strong response' at the directions hearing on 4 September 2025 there was nothing said at that directions hearing which indicated that the application was unmeritorious or that it should not have been pressed. The Tribunal expressed a preliminary view at the outset of the directions hearing that it was not inclined to grant the application but that the Tribunal would hear from the respondent in respect of the application.
   6. The respondent says that if the Tribunal decides to award costs to the applicants, it accepts that the time claimed for the components of legal work set out in the schedule attached to the costs application appear to be reasonable, except for time spent by the applicants' legal representative communicating with their expert witness, Mr Mithen and time spent preparing programming orders, which do not appear to be relevant to the applicants' opposition to the leave application. The respondent does not take issue with the applicants' legal representative's charge rate of $484 per hour for the work done by it.

1. In Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S) (Hippydayze (S)) at [4] to [12], the Tribunal considered the principles regarding the exercise of the discretion of the Tribunal to award costs in a proceeding under the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
2. In Hippydayze (S) at [4] - [6] the Tribunal referred to s 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) and s 49(1) of the BSCRA Act and the consideration of the interrelationship between those provisions in the earlier decision of the Tribunal in Gileno and Riviera Homes (WA) Pty Ltd [2018] WASAT 48 (S) (Gileno (S)).
3. Section 87(1) of the SAT Act provides that the starting position in respect of costs is that the parties bear their own costs in a proceeding in the Tribunal, unless otherwise specified in an enabling Act. Section 87(2) of the SAT Act then gives the Tribunal the power to make an order for the payment by a party of all or any of the costs of another party.
4. Section 49(1) of the BSCRA Act provides that the Tribunal may make such order for costs as it thinks fit in relation to proceedings arising from a building services complaint or a HBWC complaint.
5. It is well established that in considering a claim for costs made pursuant to s 49(1) of the BSCRA Act, the Tribunal is not required to start from the position that each party is to bear its own costs. However, as is well understood, costs do not 'follow the event' in Tribunal proceedings and the broad discretion conferred on the Tribunal is to be properly exercised by taking into account relevant considerations.[2]
6. In Hippydayze (S) at [11] the Tribunal referred to the guidance given to the Tribunal in relation to the exercise of its discretion to award costs by the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32 in which the following principles were found to apply:
   1. the discretionary power is to be exercised judicially; that is not arbitrarily, capriciously, or so as to frustrate the legislative intent;
   2. the power to award costs is to be exercised if it is fair and reasonable in all the circumstances of the case to do so;
   3. the onus is on the party seeking an order in its favour to establish that a favourable order ought to be made;
   4. every party to proceedings before the Tribunal is taken to be cognisant of the objectives of the Tribunal as expressly provided for in s 9 of the SAT Act. It is therefore necessary for the applicant to establish that the respondent's conduct has impaired the attainment of the Tribunal's objectives to have the proceedings determined fairly and in accordance with the substantial merits, with as little formality and technicality as possible and in a way which minimises the costs to the parties; and
   5. the mere fact that a party ultimately fails on a contention advanced during the course of the hearing does not, in itself, signify that the party has acted inconsistently with the objectives set out in s 9 of the SAT Act.
7. In McLerie and Koleszko in considering a costs application in a proceeding under the BSCRA Act the Tribunal stated at [3]:

There are a range of factors that might contribute to the Tribunal making a costs order, including the following non-exhaustive list:

1. where a party conducts itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party;
2. where a party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party;

1. where credibility of evidence is at the heart of a matter;

1. where the application undermines the integrity of proceedings under the relevant Act;
2. where the case is weak, being incredible or implausible or obviously unmeritorious;
3. where a party has to embark in proceedings to vindicate its clear contractual entitlement;
4. 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; and
5. in the case of proceedings conducted under [the BSCRA Act], although s 39 [sic 49] thereof 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;

as discussed in Pearce & Anor and Germain [2007] WASAT 291 (S) at [22] - [24]; Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) and Hoskins and Daniel Vinci t/as D'Vinci Contracting [2011] WASAT 188.

1. In Hippydayze (S) at [12] the Tribunal noted that if it exercises its discretion to award costs, it is to approach the task of fixing costs in a broad and relatively robust fashion, referring to the decisions of the Tribunal in Perth Central Holdings Pty Ltd and Doric Constructions Pty Ltd [2008] WASAT 302 at [67] and Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle Investments (S)) at [49]. However, although fixing costs involves a relatively broad-brush approach, the Tribunal must nevertheless be satisfied that the costs claimed are reasonable and not excessive in nature.

1. As I have noted in [12] above, costs do not follow the event in matters dealt with by the Tribunal under the BSCRA Act.
2. Also, as noted in [13(5)] above, the mere fact that the respondent failed on the leave application does not, of itself, signify that it has acted inconsistently with the objectives set out in s 9 of the SAT Act.
3. Following the filing of the leave application on 15 August 2025 I listed the matter for a directions hearing, which was held on 4 September 2025. At the outset of that directions hearing, I expressed a preliminary view that the respondent had been afforded procedural fairness and the opportunity to produce the evidence on which it wished to rely and that I was not inclined to grant the leave sought in the leave application at the advanced stage that the proceeding was at.
4. Each party had been given a reasonable opportunity to obtain and file the documentary evidence, including expert reports, on which they proposed to rely.
5. A mediation between the parties had been conducted by Tribunal Members, which had not resulted in the resolution of the matter, and the matter had been listed for a three day final hearing.
6. A conference of the parties' expert witnesses had then been conducted by Tribunal Members and a joint statement of those expert witnesses was being prepared to be given to the parties and filed for consideration at the final hearing.
7. An order had been made for the parties to file witness statements of the persons who they were calling to give evidence at the final hearing who had not provided reports.
8. Following the expression of my preliminary view at the directions hearing on 4 September 2025, Mr W Vogt of Vogt Legal, representing the respondent, indicated that the respondent wished to pursue the leave application. I made orders for the respondent to file written submissions in support of the leave application and for the applicants to then file submissions in opposition.
9. In my view, the respondent's submissions in support of the leave application did not adequately address the history of the proceeding from the time of the first directions hearing held on 11 February 2025 up until the directions hearing held on 12 June 2025 and the opportunity which the respondent had been given during that period to obtain and file expert reports on which it wished to rely. The submissions focussed rather selectively on six passages in the transcript of the directions hearing held on 12 June 2025.
10. In its submissions the respondent said that it draws on 'some specific principles that apply where leave is sought to introduce expert evidence at a relatively late stage in the proceedings'. However, as I noted at [63] in the Reasons for Refusal, the respondent did not identify any such 'specific principles' in its submissions.
11. In its submissions the respondent also submitted that in State of Queensland v JL Holdings Pty Ltd [1997] HCA 1; (1997) 189 CLR 146 and Aon Risk Services Australia v Australian National University [2009] HCA 27; (2009) 239 CLR 175 the High Court identified 'four key factors to be considered' in the exercise of the discretion to allow or refuse an application by a party for leave to amend its claim or its defence. The respondent's submissions then addressed those 'four key factors'.[3] However, as I noted at [64] in the Reasons for Refusal, the respondent did not identify any passages in those cases in which those factors are identified.
12. In its submissions the respondent alleged that its previous legal representative, Ms S Milton of Ahern Sierakowski held a 'misconceived understanding' at the directions hearing held on 12 June 2025 regarding the expert evidence on which the respondent wished to rely at the final hearing and that Ms Milton made 'a detrimental decision or argument' at that directions hearing.
13. However, the respondent did not submit any evidence to prove those allegations.
14. Vogt Legal, representing the respondent on the leave application appears to have failed to appreciate the fundamental legal principle expressed in the Latin maxim semper necessitas probandi incumbit ei qui agit (the necessity of proof always lies with the person who lays charges, which may more simply be expressed as 'he who alleges must prove'). Or, as Dixon J (as he then was) stated in Briginshaw v Briginshaw [1938] HCA 34; (1938) 60 CLR 336 at 362 '... it is enough that the affirmative of an allegation is made out to the reasonable satisfaction of the tribunal. But reasonable satisfaction is not a state of mind that is attained or established independently of the nature and consequence of the fact or facts to be proved'.
15. It would not have been appropriate for me to summarily dismiss the leave application at the directions hearing held on 4 September 2025 and I provided the respondent with the opportunity to file written submissions in support of the leave application and for the applicants to file written submissions in opposition, before I then made the decision to dismiss the leave application for the reasons given in the Reasons for Refusal.

1. Taking into account the principles set out in [8] - [14] above, in my view, it was unreasonable for the respondent, through its legal representative, Vogt Legal to pursue the leave application in the inadequate way in which it did (as referred to in [24] - [29] above) after I had expressed my preliminary view at the outset of directions hearing held on 4 September 2025.
2. The respondent's conduct in pursuing the leave application in that way was not consistent with the objectives and procedures of the Tribunal and lead to the applicants incurring unnecessary legal costs.
3. Therefore, in my view, it is fair and reasonable in all the circumstances for me to award costs to the applicants.
4. In its submissions the respondent has stated that if the Tribunal decides to award costs the respondent accepts that the time claimed for the legal work set out in the schedule attached to the costs application appears to be reasonable, except for several minor items of time claimed. The respondent also does not take issue with the applicants' legal representative's charge rate for the work done.
5. Nevertheless, I must be satisfied that the costs claimed are reasonable and not excessive in nature and I am so satisfied.
6. Approaching the task of fixing the costs in a broad and relatively robust fashion, I have decided to award costs of $6,450 to the applicants.
7. I consider that it is reasonable to order that the respondent pays that amount to the applicants within 28 days of the date of the order.

1. Pursuant to s 49(1) of the Building Services (Complaint Resolution and Administration) Act 2011 (WA) the respondent must pay to the applicants, within 28 days of the date of this order, the amount of $6,450.

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

[1] Which is set out in [14] of these Reasons for Decision.

[2] Gileno (S) at [13] to [16], Hippydayze (S) at [6] to [9] and Deshmukh and Distinctive Building Services Pty Ltd [2024] WASAT 62 at [42] to [43].

[3] See the Reasons for Refusal at [34] - [45].