CAIRNES and VENTURA HOME GROUP PTY LTD [2024] WASAT 111 (S)

[2024] WASAT 111 (S)
Page 1
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA)
CITATION : CAIRNES and VENTURA HOME GROUP PTY LTD [2024] WASAT 111 (S)
MEMBER : MS N OLDFIELD, MEMBER
MR J D ORR, SESSIONAL MEMBER
HEARD : DETERMINED ON THE DOCUMENTS
DELIVERED : 1 MAY 2025
FILE NO/S : CC 976 of 2020
CC 38 of 2022
CC 1588 of 2020
CC 39 of 2022
CC 196 of 2021
BETWEEN : ROBYN CAIRNES
Applicant
AND
VENTURA HOME GROUP PTY LTD
Respondent
Catchwords:
Costs – Building services complaints – Section 51 application – Success – Settlement offers – Tribunal objectives – Turns on own facts
[2024] WASAT 111 (S)
Page 2
Legislation:
Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49(1), s 49(7), s 49
Legal Profession (State Administrative Tribunal) Determination 2020 (WA)
Legal Profession (State Administrative Tribunal) Determination 2022 (WA)
Legal Profession (State Administrative Tribunal) Determination 2024 (WA)
State Administrative Tribunal Act 2004 (WA), s 9(b), s 87, s 87(2), s 87(3)
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42
Result:
Applicant’s costs application dismissed
Respondent’s costs application allowed
Category: B
Representation:
Counsel:
Applicant
:
N/A
Respondent
:
N/A
Solicitors:
Applicant
:
N/A
Respondent
:
Hotchkin Hanly
Case(s) referred to in decision(s):
Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50
Cairnes and Ventura Home Group Pty Ltd [2024] WASAT 111
Calderbank v Calderbank (1975) 3 All ER 333
Dickinson and Charuga [2021] WASAT 122
Edge Investments WA Pty Ltd and Q Group WA Pty Ltd [2024] WASAT 9 (S)
Evans and Imperial Pools [2020] WASAT 113 (S)
Famiano and Antonelli Investments Pty Ltd [2012] WASAT 230
Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S)
Goodrick and J-Corp Pty Ltd [2023] WASAT 70
Hand and Arasi Constructions Pty Ltd [2020] WASAT 154
[2024] WASAT 111 (S)
Page 3
Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S)
Hoskins and Daniel Vinci T/As D’Vinci Contracting [2011] WASAT 188
J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S)
Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S)
McLerie and Koleszko [2014] WASAT 160 (S)
Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7
Owners of Strata Plan No 46493 and Smith [2012] WASAT 218
Pearce & Anor and Germain [2007] WASAT 291 (S)
Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S)
Terravision Pty Ltd v Black Box Control Pty Ltd [No 5] [2018] WASC 340
Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32
Wright v de Kauwe [No 2] [2024] WASCA 51
[2024] WASAT 111 (S)
Page 4
REASONS FOR DECISION OF THE TRIBUNAL:
Introduction
1
On 27 September 2024 we made building remedy orders in these proceedings which awarded Ms Cairnes $30,787.94 in relation to 12 of a total 28 items of complaint (substantive decision).1
2
Subsequently, each party applied for orders that the other party pay their costs of the proceedings. Both parties claimed to have been largely successful and alleged the other party’s conduct had caused delay. Additionally, Ventura Homes claimed Ms Cairnes had not achieved a result more favourable than offered in settlement.
3
On 4 November 2024 the Tribunal ordered that subject to any further order the costs applications would be determined on the documents and the amount of any costs awarded would be fixed.
Issues
4
The issues to be determined were:
(a) Was Ms Cairnes entitled to an award of costs in her favour?
(b) If the answer to (a) was yes, in what amount should the costs be fixed?
(c) Was Ventura Homes entitled to an award of costs in its favour?
(d) If the answer to (c) was yes, in what amount should the costs be fixed?
Relevant legal principles
5
Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states each party is to bear their own costs unless otherwise specified in the SAT Act, in the enabling Act or by an order pursuant to s 87(2) of the SAT Act. Section 87(2) states the Tribunal has the discretion to order that a party pay a portion or all of the costs of another party.
6
In these proceedings, the enabling Act is the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act).
1 Cairnes and Ventura Home Group Pty Ltd [2024] WASAT 111.
[2024] WASAT 111 (S)
Page 5
7
Section 49(1) of the BSCRA Act provides the Tribunal may make a costs order in relation to proceedings arising from a building service or home building work contract complaint. Section 49(7) states the provisions of s49 do not limit the powers of the Tribunal under the SAT Act. Accordingly, the exercise of discretion pursuant to s 49 of the BSCRA Act should be exercised consistently with the Tribunal’s discretion pursuant to s 87 of the SAT Act.
8
The principles of determining whether to award costs in proceedings pursuant to the BSCRA Act are well established. For example, Barnett and Barrier Reef Pools (WA) Pty Ltd [2016] WASAT 50 (Barnett) at [11] – [15] and Goodrick and J-Corp Pty Ltd [2023] WASAT 70 at [73] – [74].
9
The general principles most relevant to a determination of the parties’ costs applications in these proceedings are as follows:
(a) The discretion to order the payment of costs is to be exercised only if fair and reasonable to do so in all the circumstances of the proceedings.
(b) The presumptions regarding costs orders which apply in court proceedings do not apply in these proceedings. In other words, there is no presumption that a successful party is entitled to an award of costs.
(c) The party seeking to be paid costs has the onus of satisfying the Tribunal such an order is justified. This is so even where a party is granted leave to withdraw.
(d) The parties are presumed to be aware of the statutory objectives of the Tribunal.2 It is relevant to consider whether a party can establish another party’s conduct in relation to the proceedings has impaired the attainment of the Tribunal’s objectives. If a party pursues claims without merit, acts in a way which unnecessarily prolongs the proceedings or acts in a manner which is unreasonable or inappropriate, that may give rise to a costs order.
(e) A party’s failure to succeed in all its contentions does not of itself mean the party has acted contrary to the Tribunal’s objectives.
2 SAT Act, s 9.
[2024] WASAT 111 (S)
Page 6
10
Ms Cairnes submitted that it was ‘customary for the successful party in matters under the SAT Act to recover reasonable costs associated with garnering expert advice or opinions and making the experts available for questioning at the final hearing’.3 In support of this contention Ms Cairnes cited Famiano and Antonelli Investments Pty Ltd [2012] WASAT 230 at [56] and Owners of Strata Plan No 46493 and Smith [2012] WASAT 218 at [91].
11
We agree with that submission insofar as it relates to the fixing of an amount of costs. However, in relation to whether a costs order is justified, such a view does not accord with the provisions of s 87(1) of the SAT Act, nor with the decision of the Court of Appeal in Western Australian Planning Commission v Questdale Holdings Pty Ltd [2016] WASCA 32.
12
Pursuant to r 42 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules), the Tribunal must take into account a party’s failure to accept a compliant offer of settlement which was ‘more favourable’ than the orders ultimately made by the Tribunal.
13
An offer of settlement is compliant if the offer was open for a minimum of 14 days and, where the offer included the payment of money, specified the amount to be paid and when and how payment was to be made (SAT Rules, r 40 and r 41).
14
The SAT Rules do not oblige the Tribunal to consider noncompliant offers. However, the Tribunal may exercise its discretion to do so, in the public interest of encouraging the settlement of disputes.4
15
In court proceedings, the unreasonable rejection of a Calderbank offer may justify an award of indemnity costs.5 In the Tribunal’s consideration of settlement offers, it is relevant for it to also consider whether an offer was unreasonably rejected, having regard to factors including:6
(a) when in the proceedings the offer was made;
(b) the time allowed for consideration of the offer;
3 Applicant’s Submission on Costs filed 30 December 2024 (ASC) at para 15.
4 Barnett at [16]; Hand and Arasi Constructions Pty Ltd [2020] WASAT 154 at [16].
5 Calderbank v Calderbank (1975) 3 All ER 333.
6 McLerie and Koleszko [2014] WASAT 160 (S) (McLerie) at [4].
[2024] WASAT 111 (S)
Page 7
(c) the extent of the compromise on offer;
(d) the recipient’s prospects of success as at the date of the offer;
(e) the clarity of the terms of the offer; and
(f) whether the offer foreshadowed an application for costs in the event of a rejection.
16
Whether the rejection of an offer was unreasonable is an objective assessment of the relevant facts and circumstances; the recipient’s subjective assessment is not relevant.7
17
Even if the Tribunal is not satisfied rejection of the settlement offer was unreasonable, the offer can still be a consideration in the exercise of the discretion regarding costs.8
Ms Cairnes’ submissions
18
Ms Cairnes claimed costs in the amount of $91,674.65, which comprised:9
(a) building inspections, reports and expert witness fees of $55,917.75;
(b) legal expenses of $17,970.36;
(c) fees paid to the Building Commissioner and the Tribunal totalling $6,644.40;
(d) printing costs of $511.80; and
(e) $15,000 on account of loss, inconvenience and embarrassment.
19
The submissions of Ms Cairnes in support of her application for an award of costs are summarised as follows:10
(a) Ms Cairnes was successful in relation to the majority of the complaints the subject of the proceedings.
(b) Except in response to the Tribunal’s building remedy order dated 16 July 2020 in previous proceedings (2020 BRO),
7 Wright v de Kauwe [No 2] [2024] WASCA 51 at [276].
8 Evans and Imperial Pools [2020] WASAT 113 (S).
9 ASC at para 3 and Appendices 1(a), 2, 3(a), 4 and 5.
10 ASC at para 1 and paras 16 – 31.
[2024] WASAT 111 (S)
Page 8
Ventura Homes took no action to remedy the various defects identified by Ms Cairnes in correspondence and complaints. Ms Cairnes first raised concerns with Ventura Homes in 2016.
(c) Ventura Homes did not act to remedy defects identified by the experts, even after conceding the existence of specified defects in the proceedings.
(d) The refusal of Ventura Homes to engage with Ms Cairnes compelled her to embark on proceedings to vindicate her clear legal entitlements. Accordingly, Ms Cairnes incurred greater costs than she would have if Ventura Homes had responded to and investigated complaints when raised by Ms Cairnes.
(e) The impacts and costs of investigating the various defects and avoiding exposure to mould were such that Ms Cairnes had to suffer financial and personal distress, and the loss, inconvenience and embarrassment of accepting personal loans, living in alternative accommodation and being unable to work.
(f) Ventura Homes delayed the resolution of the proceedings for over one year by applying for and being granted an adjournment of the proceedings by reason of a challenge to the jurisdiction of the Tribunal in unrelated proceedings.11
20
Ms Cairnes’ above submissions were supported by other materials including chronologies of events in each proceeding and annexures.
21
Ms Cairnes’ submissions in opposition to the application of Ventura Homes are summarised as follows:12
(a) As set out in the earlier submissions, it was Ms Cairnes who ought to be awarded costs rather than Ventura Homes.
(b) Ventura Homes’ characterisation of the outcome of the proceedings was incorrect because:
(i) Of the 17 complaints which ‘were brought to the final hearing’, Ms Cairnes established her case in nine and partially established her case in a further three. Therefore, she was more than 50% successful on the substance of the claims.
11 Owners of Strata Plan 58161 and Hanssen Pty Ltd [No 2] [2023] WASAT 7.
12 Applicant’s Responsive Submissions on Costs filed 27 January 2025 (ARSC) at paras 2 – 5, 28 and 29.
[2024] WASAT 111 (S)
Page 9
(ii) Although the damages awarded by the Tribunal were less than those sought by Ms Cairnes, that did not mean she was unsuccessful. Furthermore, the amounts sought by Ms Cairnes ought to be discounted to take account of the Tribunal’s comments that some amounts were more appropriately recoverable in a costs application.
(c) The outcome in the substantive decision made it plain that Ms Cairnes’ claims were not ‘clearly untenable’.
(d) It was not the case that the outcome of the final hearing was less favourable than the settlement offers made by Ventura Homes. Furthermore, it was not unreasonable for Ms Cairnes to reject those offers in all the circumstances.
(d) The claim based on allegations regarding the manner in which Ms Cairnes presented her case ought to be rejected because:
(i) she was largely self-represented;
(ii) the proceedings were complex; and
(iii) multiple proceedings were required because investigations revealed further facts and the matters were ultimately heard and determined together.
(f) The Tribunal’s findings regarding a failure to mitigate loss were not relevant to these costs applications.
(g) If there were any basis for awarding costs to Ventura Homes, which was denied, those considerations were counterbalanced by the factors justifying an award of costs in favour of Ms Cairnes. In that event therefore it would be most appropriate to make no order as to costs.
Ventura Homes’ submissions
22
Ventura Homes claimed costs in the amount of $212,103.06, which comprised:13
(a) legal costs of $139,159.35 in relation to the substantive proceedings and $7,264.40 in relation to the costs applications;
13 Respondent’s Submissions and Schedule of Costs filed 24 December 2024 (RSSC) at para 30 and Annexure A; Respondent’s Submissions in Response to Applicant’s Application for Costs filed 24 January 2025 (RSR) at paras 72 – 74.
[2024] WASAT 111 (S)
Page 10
(b) experts’ fees totalling $48,043.88; and
(c) other disbursements including Tribunal fees and printing totalling $17,635.43.
23
The submissions of Ventura Homes in support of its application for an award of costs are summarised as follows:14
(a) Ms Cairnes only partially succeeded in her claims and was awarded only 18% of the total amount claimed. Therefore, in substance, Ventura Homes defended the overwhelming majority of the claim.
(b) An award of costs in favour of Ventura Homes was justified on three grounds:
(i) Ms Cairnes’ rejection of offers of settlement which were more favourable than the substantive decision;
(ii) the manner in which Ms Cairnes brought and pursued her claims caused the proceedings and final hearing to be unnecessarily complex and time consuming;
(iii) the findings of the Tribunal that Ms Cairnes had failed to mitigate her loss demonstrated that Ms Cairnes’ conduct was unreasonable and impaired the attainment of the Tribunal’s statutory objectives.
24
Ventura Homes’ submissions in opposition to the application of Ms Cairnes are summarised as follows:15
(a) Ms Cairnes’ claim to have been successful in the proceedings was rejected;
(b) Ms Cairnes’ incorrectly claimed her legal costs at the rates charged by her then solicitor instead of by reference to the relevant determination of the Legal Costs Committee;
(c) the claim for costs in relation to loss, inconvenience and embarrassment was either too vague or sought for a punitive purpose which was outside the ambit of s87(3) of the SAT Act; and
14 RSSC at paras 8, 23, 26 and 29.
15 RSR at paras 1, 13 – 15, 43 – 48, 53 – 61 and paras 67 – 69.
[2024] WASAT 111 (S)
Page 11
(d) the overall circumstances, in particular the rejection of the settlement offers, justified a costs order in favour of Ventura Homes.
The settlement offers
25
In the context of these proceedings, we consider all the settlement offers are relevant to a determination of both parties’ applications even if they do not comply with the requirements of SAT Rules 40 and 41.
26
We note, as context, the parties and their solicitors attended mediation conferences at the Tribunal on 18 March 2021, 17 June 2021 and 22 September 2021.
Offers dated 11 June 2021
27
By correspondence dated 11 June 2021, Ventura Homes by its solicitors wrote to Ms Cairnes’ then solicitors:16
(a) on a ‘without prejudice save as to costs basis’;
(b) addressing the alleged weaknesses of Ms Cairnes’ claims in CC 976/2020, CC 1588/2020 and CC 196/2021;
(c) making two offers of settlement in the alternative which were expressed to be open for 14 days; and
(d) explicitly reserving their right to produce the correspondence in support of an application for costs if there were a final hearing.
28
If Ms Cairnes accepted, Ventura Homes stated the agreement would be recorded in a formal deed which would contain ‘the usual release and confidentiality provisions’ and payment would be made within 7 days of execution of the deed by both parties.
First option
29
Ventura Homes offered to:
(a) investigate water ingress in the ensuite bathroom including pressure testing the installed supply and wastewater systems and resealing the ensuite shower door;
(b) install a vapour barrier underneath and re-concrete the main bathroom slab and reinstall a new bath, hob and cabinetry;
16 Affidavit of AW Buchan sworn 24 December 2024 (Buchan affidavit) at Annexure AWB-1.
[2024] WASAT 111 (S)
Page 12
(c) arrange for the above work to be reviewed by an agreed independent consultant and confirmed as appropriately performed; and
(d) pay $20,000 as a contribution to the costs Ms Cairnes had or would in the future incur.
Second option
30
Alternatively, Ventura Homes offered to pay $35,000.
Response
31
The parties’ materials contain no reference to a response or further discussions regarding this offer. We presume therefore it was either allowed to lapse or superseded by the next offer.
Our views regarding the offers
32
Ms Cairnes’ submissions did not address the circumstances of any individual offer. In relation to all of the offers (in 2021 and 2022), Ms Cairnes’ submissions as to why rejection was reasonable are largely subjective,17 which was of limited assistance in making the required objective assessment.18
33
Those submissions also justify rejection on the basis of a schedule which estimated her costs at $168,900.53. Ms Cairnes did not identify this document in her submissions. We take it to be the document at page 1392 of Exhibit 1. That schedule appears to have been prepared by Ms Cairnes and seems to comprise both incurred and estimated costs in relation to building inspections, mould testing, repairs, cleaning, accommodation and local government and Tribunal fees. The schedule has no attachments (such as invoices) and lacks sufficient information for us to rely upon it. Accordingly, we take the view the schedule forms part of Ms Cairnes’ subjective assessment rather than being evidence upon which we might make objective assessment of the likely costs of rectification as at May 2021.
34
We do not consider Ms Cairns’ nonacceptance of the offers contained in the letter dated 11 June 2021 to be unreasonable because the correspondence failed to fully explain the reasons why (in view of the various reports then disclosed by Ms Cairnes) Ventura Homes
17 ARSC at para 27.
18 See [16] above.
[2024] WASAT 111 (S)
Page 13
considered her claims were unlikely to be successful. For example, in
relation to matter CC 976/2020 there was a simple denial.
35
This is relevant because at this early stage in the proceedings, much of the material on which Ventura Homes would rely in the final hearing had not yet been lodged. If Ms Cairnes was only partly aware of the basis upon which Ventura Homes would defend her claims, it may have been reasonable for her to conclude she was likely to achieve a better result at the final hearing.
36
Moreover, the phrase ‘the usual release and confidentiality provisions’ lacked clarity regarding the terms to which the offer was subject. We are not satisfied it was unreasonable to reject an offer expressed in that fashion.
Offer dated 18 June 2021
37
By correspondence dated 18 June 2021, Ventura Homes by its solicitors wrote to Ms Cairnes’ then solicitors on a ‘without prejudice save as to costs basis’.19 The letter was expressed to be in confirmation of an offer verbally made at the mediation conference the previous day.
38
Ventura Homes offered to:
(a) meet with Ms Cairnes’ building expert Mr Harrison on site the following week to undertake a joint inspection with a view to agreeing on a scope of investigation and remedial works required to address issues identified by Ms Cairnes’ then solicitors in earlier correspondence;
(b) perform the works as agreed with Mr Harrison;
(c) Mr Harrison to review and confirm the works had been performed in a proper and proficient manner;
(d) pay the reasonable fees of Mr Harrison in relation to (a) and (c) above;
(e) following completion of the remedial works to have the premises cleaned in accordance with the recommendations of Ventura Homes’ mould experts and to have the cleaning certified as meeting those standards; and
(f) pay Ms Cairnes $43,000.
19 Buchan affidavit at Annexure AWB-2.
[2024] WASAT 111 (S)
Page 14
39
If accepted, Ventura Homes proposed the agreement be recorded in both a deed and building remedy orders made by the Tribunal by consent. The deed was to provide the settlement was in ‘full and final compromise with appropriate bars and releases in respect of any and all claims, past, present and future arising from the matters giving rise to [Ms Cairnes’] claims in the SAT’.
40
The offer was expressed to be open for seven days calculated from the date of mediation, and so expiring on 24 June 2021.
41
The offer was said to be pursuant to Calderbank principles, and Ventura Homes reserved its right to refer to the letter as part of an application for costs.
Further correspondence
42
On 29 June 2021 Ventura Homes’ solicitors wrote to Ms Cairnes’ then solicitors.20 The letter:
(a) referred to the abovementioned offers and a telephone conversation between their offices;
(b) confirmed the time for acceptance of their offer dated 18 June 2021 was extended to 2 July 2021;
(c) ‘looked forward to’ confirmation Ventura Homes would be permitted to directly contact Mr Harrison to arrange a joint inspection; and
(d) confirmed they had been advised that Ms Cairnes’ solicitors were awaiting instructions regarding direct contact with Mr Harrison, Ms Cairnes was making arrangements directly with Mr Harrison and Ms Cairnes had instructed that Ventura Homes ‘could wait, as the dispute had been going since 2017’.
43
The letter was headed ‘without prejudice save as to costs’ and specifically reserved the rights of Ventura Homes regarding disclosure of the correspondent in a costs application, including pursuant to Calderbank principles.
Response
44
On 2 July 2021 Ms Cairnes’ solicitors wrote to Ventura Homes’ solicitors, on a ‘without prejudice save as to costs’ basis, stating their
20 Buchan affidavit at Annexure AWB-3.
[2024] WASAT 111 (S)
Page 15
client
‘cannot accept the settlement offer at this time’ and requested Ventura Homes’ consideration of several points including:21
(a) Mr Harrison had been unavailable due to other commitments and a four-day COVID-19 lockdown. It was not known when he would be available.
(b) A ‘comprehensive scope of works’ was required to address known and emerging moisture problems. Mould investigations had indicated significant mould contamination in various locations and high levels of total volatile organic compounds in the dining room.
(c) The mould remediation could only take place once moisture ingress issues had been addressed. Mould remediation by an accredited mould remediator and post remediation testing were required.
Our views regarding the offer
45
The offer of Ventura Homes was clear in its terms and represented a genuine offer of compromise.
46
On a Calderbank style of assessment, we would not have considered it unreasonable to have rejected the offer dated 18 June 2021 because:
(a) the letter did not seem to clearly identify the items of complaint for which remedy was offered; and
(b) there was no certainty as to the works to be performed, but simply an offer to meet with Mr Harrison to agree on the scope of works and investigations to be performed.
47
However, in a broader sense it may have been unreasonable for the correspondence of 2 July 2021 to have rejected the offer holus-bolus without attempting to explore the possibilities for rendering the terms more certain.
48
This is because one possible meaning of point 1 in the letter was that it offered redress in relation to every item of complaint which had been identified by Ms Cairnes in correspondence. If that were the case, and if Ventura Homes were prepared to accept the recommendations of
21 Affidavit of RA Cairnes sworn 30 December 2024 (Cairnes affidavit) at Annexure 2.
[2024] WASAT 111 (S)
Page 16
Mr
Harrison, this would have been a favourable outcome for Ms Cairnes. Particularly given the offer to perform a mould remediation (albeit not to the standard suggested by one of Ms Cairnes’ mould experts) and to pay the not insubstantial amount of $43,000.
49
One might question whether a better outcome at a final hearing could have been considered likely, even at that stage.
Offers dated 17 August 2021
50
On 17 August 2021 Ventura Homes’ solicitors wrote to Ms Cairnes’ then solicitors.22 The letter:
(a) listed defects identified by Mr Harrison during a site inspection in the presence of Ventura Homes on 2 August 2021;
(b) observed the number of defects identified by Mr Harrison was less than alleged by Ms Cairnes in her complaints; and
(c) stated there had been no obvious mould, which they considered was in accordance with the reports of their mould experts.
51
Ventura Homes offered to:
(a) perform remedial works recommended by Mr Harrison in relation to the ensuite bathroom, main bathroom, laundry and dining room;
(b) have these works reviewed by an agreed independent consultant to confirm they had been appropriately performed;
(c) arrange a clean of the premises to the standards recommended by their mould experts; and
(d) pay $20,000.
52
In the alternative, Ventura Homes offered to make a payment of $35,000.
53
Both offers were open for 14 days and were to be in full and final settlement of CC 976/2020, CC 1588/2020 and CC 196/2021 and envisaged execution of a deed which would contain ‘the usual release and confidentiality provisions’.
22 Buchan affidavit at Annexure AWB-5.
[2024] WASAT 111 (S)
Page 17
54
In the event of non-acceptance, Ventura Homes reserved its rights to produce the letter in support of a costs application.
Response – 31 August 2021
55
On 31 August 2021 Ms Cairnes’ solicitors wrote to Ventura Homes’ solicitors, on a ‘without prejudice save as to costs’ basis, stating their client ‘cannot accept the settlement offer’ and requested Ventura Homes’ consideration of several points including:23
(a) disagreeing with the statement there was no visible mould;
(b) stating Mr Harrison had identified the absence of a sub-sill tray to the dining room sliding door and recent testing had identified ‘extreme levels’ of fungal contamination in the cavity under the frame of the dining room sliding door;
(c) there had been a failure to acknowledge the unacceptably high moisture levels and the growth of mould in the garage and the absence of a vapour barrier underneath the slab in the garage;
(d) noting the experts’ and other statements on the dangers of mould and stating Ms Cairnes ‘would not accept anything other than a professional mould remediation company conducting the mould remediation, including post remediation testing’ in the house; and
(e) stating Ms Cairnes ‘would not accept anything other than a professional demolition of the garage slab’ including containment and removal of mould contaminated components of the garage.
56
The letter concluded by stating Ms Cairnes was confident of a favourable outcome and suggested the parties vacate the scheduled mediation conference and arrange for the listing of a final hearing.
Response – 20 September 2021
57
On 20 September 2021 Ms Cairnes’ solicitors wrote to Ventura Homes’ solicitors, on a ‘without prejudice save as to costs’ basis and referring to the correspondence dated 17 August 2021.24
23 Cairnes affidavit at Annexure 4.
24 Cairnes affidavit at Annexure 5.
[2024] WASAT 111 (S)
Page 18
58
The September letter was in very similar terms to that dated 31 August 2021 save that it:
(a) stated Ms Cairnes did not accept the offer of settlement because she did not accept ‘the forfeit of her rights in relation to a personal injury claim nor dismissal of her cost schedule and the scope of works’; and
(b) expanded upon the author’s (or Ms Cairnes’) views regarding mould.
Our views regarding the offers
59
The offer was clear in its terms. Although proffering less than the offer dated 18 June 2021, we nevertheless are satisfied it represented a genuine attempt to compromise the proceedings then on foot.
60
We are not satisfied it was unreasonable for Ms Cairnes to reject the offer because the letter did not explain why nothing was offered in relation to the garage even though noting Mr Harrison had identified elevated moisture levels in the garage as a defect during the joint inspection. If there were still issues with moisture ingress, a mould remediation offered by Ventura Homes might have been premature.
61
However, again the response on behalf of Ms Cairnes makes no attempt to negotiate but simply rejected the offer with statements she would ‘not accept anything other than a professional mould remediation’ and ‘demolition of the garage’. The mould remediation offered by Ventura Homes was to the standard recommended by their experts. There was nothing in the materials filed which suggested demolition of the garage might have been necessary. The correspondence for Ms Cairnes did not explain what standard of remediation was required or why the suggested remediation was inadequate nor why the demolition was considered essential.
Offer dated 23 September 2021
62
On 23 September 2021 Ventura Homes’ solicitors wrote to Ms Cairnes’ then solicitors.25 The letter was expressed to be ‘without prejudice save as to costs’ and in confirmation of an offer which had been made in the course of a mediation conference on 22 September 2021.
25 Buchan affidavit at Annexure AWB-7.
[2024] WASAT 111 (S)
Page 19
63
Ventura Homes offered to pay Ms Cairnes $100,000 in full and final settlement of all matters arising from the items of complaint in the proceedings and the facts giving rise to the complaints, including any personal injury claim which might otherwise be available to Ms Cairnes or her children. Ms Cairnes was to be responsible for any and all remedial work arising from the matters in the items of complaint, the proceedings were to be dismissed with no order as to costs and the settlement recorded in a deed.
64
The offer was open until close of business on 29 September 2021 and Ventura Homes reserved its right to produce the letter in an application for costs whether pursuant to Calderbank principles or otherwise.
Responses
65
Ms Cairnes’ then solicitors responded to the offer by correspondence dated 29 September 2021.26 They requested the offer be extended for a further 14 days for the following reasons:
(a) so that Ms Cairnes could obtain independent legal advice regarding the compromise of her children’s potential personal injury claims;
(b) to allow Ms Cairnes to meet with her and her children’s doctors to discuss mycotoxin test results; and
(c) to investigate the source of water underneath the garage, because wet weather had caused delay.
66
By email on 30 September 2021, the solicitors for Ventura Homes advised the offer would be extended for a further seven days.27
67
By email on 6 October 2021, the then solicitors for Ms Cairnes declined Ventura Homes’ offer.28 They stated Ms Cairnes was ‘not prepared to take liability for rectification’ and was ‘not willing to compromise her rights and the rights of her children with respect to their ongoing health problems’.
26 Cairnes affidavit at Annexure 7.
27 Buchan affidavit at Annexure AWB-9.
28 Buchan affidavit at Annexure AWB-10.
[2024] WASAT 111 (S)
Page 20
Our views regarding the offer
68
It was reasonable for Ms Cairnes to pursue the issues identified in the letter of 29 September 2021. However, there was no indication of whether an independent lawyer had been engaged or was expected to be engaged, when the test results had been received and if the medical appointments had been booked or were expected to be booked, nor whether Ms Cairnes had engaged someone to investigate underneath the slab and how the wet weather had impeded the investigation.
69
Similarly, there was no explanation as to the reasons Ventura Homes limited the extension of time to seven days instead of the 14 days requested.
70
Although the bulk of the parties’ reports had not been lodged with the Tribunal at this stage, we consider it likely each party was amply informed both of their own case and the other party’s case because:
(a) It appears there had been significant disclosures, including a letter from Ms Cairnes’ then solicitor to Ventura Homes’ solicitor dated 14 May 2021 noting 29 attachments,29 Ventura Homes’ moisture readings30 and the joint report of Ventura Homes’ mould experts dated 19 May 2021.31
(b) Three mediation conferences had taken place, giving the parties and their solicitors three opportunities (aside from other communications) to discuss the issues with each other and with the Tribunal’s mediators.
71
Even assuming Ms Cairnes had a reasonable hesitation in relation to the matters described in the letter of 29 September 2021, we consider it unreasonable to reject the offer outright when considering the magnitude of the amount offered as compared to the relevant complaint items. Further, we do not consider it was reasonable of Ms Cairnes to reject the settlement offer on the basis she was not prepared to compromise.
29 Lodged in CC 196/2021 on 14 May 2021.
30 Lodged in CC 976/2020 on 7 September 2020.
31 Lodged in CC 976/2020, CC 1588/2020 and CC 196/2021 on 20 May 2021.
[2024] WASAT 111 (S)
Page 21
Offers dated 9 March 2022
Background
72
On 9 November 2021 Ms Cairnes’ former solicitors filed notices of ceasing to act for her in matters CC 976/2020, CC 1588/2020 and CC 196/2021.
73
On 12 January 2022 the Building Commissioner referred to the Tribunal complaints made by Ms Cairnes against Ventura Homes which became CC 38/2022 and CC 39/2022.
The offers
74
On 9 March 2022, Ventura Homes’ solicitors wrote to Ms Cairnes making two alternative offers of settlement:32
(a) The payment of $80,000 in full and final settlement of all matters arising from the Tribunal proceedings and the facts giving rise to those proceedings, except for any personal injury losses alleged to have been sustained by reason of the defective workmanship.
(b) The payment of $120,000 in full and final settlement of all matters arising from the Tribunal proceedings and the facts giving rise to those proceedings including any personal injury losses alleged to have been sustained.
75
Both options remained open for 14 days.
76
If either offer were accepted, it would be recorded in a deed which would include provisions regarding confidentiality of the terms of the agreement. The consequence of accepting either offer was that Ms Cairnes would accept the responsibility for undertaking any remedial works required in relation to the complaints.
77
The correspondence was ‘without prejudice save as to costs’ and stated the offers were made pursuant to both r 40 of the SAT Rules and Calderbank principles. There was an explicit reservation of Ventura Homes’ rights to produce the letter in any application for costs.
32 Buchan affidavit at Annexure AWB-11.
[2024] WASAT 111 (S)
Page 22
The response
78
On 22 March 2022 Ms Cairnes wrote to the solicitors for Ventura Homes to reject both offers.33 We summarise her expressed reasons as follows:
(a) Ms Cairnes had not found a registered builder willing to provide a quotation in relation to the property.
(b) Ms Cairnes was not a registered builder and therefore would not accept liability for the ‘construction defects and poor workmanship’.
(c) During the course of the dispute, Ms Cairnes had found herself in significant debt, due at least in part to being liable to pay a mortgage in relation to a house she and her children felt unable to occupy (and thus had the added costs of alternative accommodation). If the property were sold for block value, the likely price would be insufficient to discharge all her debts. Therefore, she reserved her rights to rely upon this letter in an application for a full reimbursement of her costs.
(d) She had received a quotation of $80,000 to remediate the mould and the cost of remediating other matters was unknown.
(e) She would not waive her rights or her children’s rights to pursue a personal injury claim in another jurisdiction.
Our views regarding the offers
79
We do not consider Ms Cairnes’ rejection of those offers was reasonable because:
(a) Either of the amounts offered was significantly greater than the likely cost of rectifying the relevant complaint items.
(b) It was unnecessary for Ms Cairnes to engage a builder. Engaging the individual trades would have been (and eventually was) sufficient.
(c) There seemed to be a failure to take into account that:
(i) it would not have been possible for the Tribunal to order the performance of remedial works in relation to
33 Cairnes affidavit at Annexure 10.
[2024] WASAT 111 (S)
Page 23
CC 976/2020 because Ms Cairnes’ claim was pursuant to s 51 of the BSCRA; and
(ii) even if Ms Cairnes proved the works were ‘defective’ in the remaining matters, the Tribunal had the discretion to make a monetary order instead of a works order.
(d) There was no evidence and we do not find credible the claim a mould remediation was likely to cost $80,000. No such quote was tendered by Ms Cairnes, the evidence of the parties regarding the possible cost of remediation did not come close to that amount and the eventual cost incurred by Ms Cairnes was $4,761.04 for both the remediation and post remediation verification.34
(e) One of the offers did not oblige Ms Cairnes to compromise the potential personal injury claims.
Conclusions regarding the settlement offers
80
There is no evidence Ms Cairnes made any offers of compromise. This, and the manner in which the various offers of Ventura Homes were rejected, satisfies us that Ms Cairnes did not wish to compromise but was determined to pursue her claims in full.
81
We take the view such an attitude is contrary to the objectives of the Tribunal to act speedily and minimise costs to the parties, and the public interest in the timely resolution of disputes.35
82
Furthermore, all of the settlement offers were more favourable to Ms Cairnes than the final orders. Particularly if one bears in mind all but the last of the offers were made relation to CC 976/2020, CC 1588/2020 and CC 196/2021 only. Our orders in relation to those matters awarded Ms Cairnes damages of $18,374.76.
83
Finally, as noted above, we are satisfied Ms Cairnes’ rejection of the offers on 23 September 2021 and 9 March 2022 were unreasonable.
34 Substantive decision at paras [248] – [249].
35 SAT Act s 9(b); Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) (Marvelle) at [26].
[2024] WASAT 111 (S)
Page 24
Should Ms Cairnes be awarded costs?
Was Ms Cairnes successful?
84
The Macquarie Dictionary Online defines the verb ‘succeed’ to include ‘to turn out or terminate according to desire…have the desired result’ and ‘to accomplish what is attempted or intended’.36 The noun ‘success’ is defined to include ‘the favourable or prosperous termination of attempts or endeavours’.
85
In these proceedings, we determined 28 items of complaint. Findings of ‘defective’ workmanship were made in relation to 12 items. One item was partly withdrawn and partly dismissed. Of the remaining items of complaint, 10 were withdrawn and five were dismissed.
86
Regarding the 12 items of complaint in relation to which findings of ‘defective’ workmanship were made, 10 had been conceded by Ventura Homes. Furthermore, Ms Cairnes relied entirely upon the expert evidence of Ventura Homes in relation to two of those items.
87
On 10 April 2023, Ms Cairnes lodged a schedule which quantified her claim (including costs) as $364,082.69.37 This sum did not include those items in relation to which Ms Cairnes (at that time) sought the performance of remedial works. After deletion of the amounts said to be related to inspections, testing, reports, legal fees and other items which relate more to costs, the amount relating to damages appeared to be $191,274.65.38
88
On 8 July 2024 Ms Cairnes lodged closing submissions which quantified her claim including costs as $169,604.36.39 By this time, Ms Cairnes had received all relevant invoices.40 Thus if Ms Cairnes’ claimed ‘out of pocket’ expenses of $76,674.65 are deducted41, by the end of the final hearing Ms Cairnes’ damages claim excluding costs was $92,929.71.
89
Our decision was to award compensation to Ms Cairnes totalling $30,787.94.42
36 Macquarie Dictionary Online, 2025, Macquarie Dictionary Publishers, an imprint of Pan Macmillan Australia Pty Ltd, www.macquariedictionary.com.au.
37 Exhibit 1, page 1187.
38 Exhibit 1, page 1187 at points 3.2, 3.3, 4.2, 4.3 and 4.4.
39 ASC at paras 39, 64, 92, 215 and 254.
40 ASC at Appendices 1(a), 2, 3(a),4 and 5.
41 Total costs claim $91,674.65 less $15,000 claim regarding loss, inconvenience and embarrassment.
42 Cairnes and Ventura Home Group Pty Ltd at [255].
[2024] WASAT 111 (S)
Page 25
90
On that basis, Ms Cairnes was awarded approximately 33% of her claim in relation to approximately 43% of the complaint items. We do not consider this result was desired or intended by Ms Cairnes, nor can fairly be regarded as a ‘prosperous termination’ of the final hearing for Ms Cairnes. Accordingly, we are not satisfied Ms Cairnes can be characterised as having been successful.
Failure to act
91
Ms Cairnes submitted her claim for costs was justified in part because Ventura Homes took no action to remedy the various defects identified by her, except for those complaints in relation to which building remedy orders had been made by consent.43 Furthermore, even after conceding the existence of defects in these proceedings, they did not perform repair works.44
92
A related submission was that Ms Cairnes was obliged to ’embark on proceedings to vindicate her clear legal entitlements’.45
93
We do not agree with these submissions for the following reasons:
(a) Ventura Homes was entitled to require Ms Cairnes to prove her claims.
(b) It was appropriate for Ventura Homes to make concessions in accordance with the advice of their experts. Their doing so supported rather than derogated from the statutory objectives of the Tribunal.
(c) We do not consider it unreasonable for Ventura Homes to decline to perform remedial works in circumstances where there had been no agreement with Ms Cairnes regarding the relevant item or items of complaint and proceedings were ongoing.
(d) We do not consider Ms Cairnes’ ‘legal entitlements’ to be so clear as to make the position of Ventura Homes unmeritorious or unreasonable. Although the parties broadly agreed upon the existence of ‘defective works’ in relation to 10 items of complaint, they did not agree on the appropriate remedy. In relation to the remaining items which were not withdrawn, there was a genuine dispute regarding both liability and remedy.
43 ASC at paras 16 -18, 25 – 26.
44 ASC at paras 19, 35.
45 ASC at para 27.
[2024] WASAT 111 (S)
Page 26
(e) The reference by Ms Cairnes to being required to commence proceedings in order to ‘vindicate her clear legal entitlements’ is likely drawn from Tribunal decisions such as Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce) and McLerie. In Pearce his Honour Justice Chaney (as he then was) stated at [24]:
[W]here it is necessary for a party to a retail shop lease to take proceedings in the Tribunal to vindicate its clear contractual entitlements, and to incur costs in doing so, it will “often not be unreasonable for an award of costs to be made”. The position is the same where costs are incurred in defending an obviously unmeritorious claim.
That passage is not particularly relevant here. Ms Cairnes’ position fell well short of ‘a clear contractual entitlement’ and as noted above, we are not satisfied the defence of Ventura Homes was unmeritorious or unreasonable.
Loss, inconvenience or embarrassment
94
Ms Cairnes submitted the refusal of Ventura Homes to remedy the building defects she had identified (save pursuant to orders of the Tribunal) caused her ‘considerable financial and emotional inconvenience and stress’.46 She was required to devote significant time and financial resources to the proceedings. Additionally due to professional advice to limit further exposure to the mould inside the house, she and her children were required to seek alternative accommodation. Overall she and her children were subject to disruption and loss of amenity. She had the embarrassment of needing to seek financial assistance from her family, friends and then employer.
95
Ms Cairnes further submitted that s 87(3) of the SAT Act allowed the Tribunal to award costs on a basis outside of the traditional notion of costs including compensation for loss, inconvenience or embarrassment.47
96
Section 87(3) of the SAT Act provides:
The power of the Tribunal to make an order for the payment by a party of the costs of another party includes the power to make an order for the payment of an amount to compensate the other party for any expenses,
46 ASC at paras 28 and 188 – 190.
47 ASC at para 15.
[2024] WASAT 111 (S)
Page 27
loss, inconvenience, or embarrassment resulting from the proceeding or the matter because of which the proceeding was brought.
97
In Springmist Pty Ltd and Shire of Augusta-Margaret River [2005] WASAT 143 (S) (Springmist) the Tribunal stated at [64] – [65]:
The effect of s 87(3) is that the expenses that may be recovered are not limited to the traditional notion of legal costs, but can include other expenses and loss in connection with the conduct of the proceedings before the Tribunal. For example, the costs may include the costs of a non lawyer advocate, the expenses of a party having to travel to a hearing or some amount which compensates a party for the inconvenience or expense of its participation in the proceedings.
Section 87(3) does not provide a basis upon which compensation, in the nature of damages, can be awarded because of some negligence or failure on the part of the decision‑maker to perform its function diligently and timeously, or because a decision‑maker’s conduct falls short of the usual expectations of those who seek some consent, approval or permit.
98
Section 87(3) does not encompass a claim for damages which should have been made in the substantive proceedings, nor permit compensation for other causes of action not the subject of the proceedings.48
99
It appears Ms Cairnes has commenced separate personal injury proceedings against Ventura Homes,49 as was foreshadowed in the abovementioned settlement offers.50
100
We consider Ms Cairnes’ claim for compensation for loss, inconvenience or embarrassment largely or entirely fell outside the ambit of s 87(3) and would have been more appropriately brought as part of the personal injury proceedings.
101
There may have been a portion of Ms Cairnes’ claim which was specifically referable to her conduct of these proceedings and which could have been the subject of orders under s 87(3).51 However, there was no differentiation made between the different kinds of loss or damage said to have been incurred and only a global amount claimed. As a result, there is an insufficient basis for costs to be awarded pursuant to s 87(3).
48 Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S) at [34]; Dickinson and Charuga [2021] WASAT 122 at [55].
49 ts 429, 12 March 2024.
50 See [47], 51 and [61(e)] above.
51 For example, the expense and inconvenience of attending the hearings as per Springmist at [58].
[2024] WASAT 111 (S)
Page 28
Delay
102
Ms Cairnes argued Ventura Homes delayed the resolution of the proceedings for over one year by applying for and being granted an adjournment of the proceedings by reason of a challenge to the jurisdiction of the Tribunal in unrelated proceedings.
103
In our view, the adjournment was not inappropriate or contrary to the objectives of the Tribunal. The challenge to the Tribunal’s jurisdiction was real and, if successful, would have had a critical impact upon the proceedings. And in a very real sense the adjournment could not be said to have been ’caused’ by Ventura Homes, because the challenge arose in separate, unrelated proceedings to which Ventura Homes was not a party.
Other factors
104
An additional consideration could have been that the costs of the expert witnesses represented such a significant proportion of the relief claimed, that the remedy granted by the Tribunal would not have been truly effective if costs were not granted – Hoskins and Daniel Vinci T/As D’Vinci Contracting [2011] WASAT 188 at [18]. We may have found appeal in such an argument, had it not been for our above conclusions in relation to the settlement offers.52
105
Even had we concluded it was reasonable for Ms Cairnes to have rejected all of the settlement offers, we would not have ordered costs reimbursing Ms Cairnes’ legal costs. The solicitors engaged by Ms Cairnes did not significantly participate in the proceedings because they were engaged only between March and November 2021. Furthermore, none of the material lodged by those solicitors was evidence in the final hearing.53
106
We also have reservations in relation to the claim for the costs of building inspections, reports and expert witness fees:
(a) Expert reports may not have been necessary to prove liability in relation to those items of complaint in relation to which Ventura Homes had conceded liability. Therefore, Ms Cairnes’ experts were of most relevance or assistance to the Tribunal in establishing the liability of Ventura Homes in relation to two
52 Paragraphs [80] – [83].
53 Save for one document which was included only because it was later relodged by Ms Cairnes as part of her books of documents.
[2024] WASAT 111 (S)
Page 29
complaint items, and in relation to calculating the quantum of damages in relation to 12 complaint items (out of a total 28 items).
(b) Ultimately the evidence of Mr Harrison established the liability of Ventura Homes in relation to one complaint item (bath waste) and was of assistance in determining scope of repair works (which in turn allowed us to determine quantum) in relation to two complaint items (ensuite bathroom shower screen and dining room sliding door).
(c) Ms Cairnes’ mould experts did not provide quotations regarding the cost of mould remediation and we preferred the evidence of the mould experts engaged by Ventura Homes in establishing liability.
(d) Ms Cairnes sought damages on the basis of invoices, receipts and quotes for remedial works. None of the persons who prepared those invoices, receipts and quotes or performed the works was called to give evidence. Many of the invoices, receipts or quotes contained insufficient detail to allow us to ascertain the works which related to individual complaint items.
Decision on Ms Cairnes’ application
107
On the basis of the foregoing, we are not satisfied it would be fair and reasonable in all the circumstances of the proceedings to make an award of costs in favour of Ms Cairnes.
Should Ventura Homes be awarded costs?
Was Ventura Homes successful?
108
Success is a tricky concept to apply in the circumstances of a respondent which conceded liability in 10 of the 12 items of complaint in relation to which findings were made against it. There was no opportunity for the usual concept of success in relation to those 10 items. It is of course relevant to again observe that 10 items of complaint were withdrawn, four were dismissed and one was partly withdrawn and partly dismissed.
109
In our view, the result of the substantive proceedings for Ventura Homes could have been much worse, but neither was it the best of all reasonably possible outcomes.
[2024] WASAT 111 (S)
Page 30
Rejection of settlement offers
110
Ventura Homes argued a costs order in their favour was justified on the basis Ms Cairnes had unreasonably rejected their five settlement offers, all of which were more favourable to Ms Cairnes than the outcome at the final hearing.
111
We are satisfied the orders made by the Tribunal were not more favourable to Ms Cairnes than the offers, and that rejection of the offers contained in the letters dated on 23 September 2021 and 9 March 2022 was unreasonable.
Decision on Ventura Homes’ application
112
On the basis of our conclusions in paragraph [111] we are satisfied it is fair and reasonable in all the circumstances of the proceedings to make an award of costs in favour of Ventura Homes.
113
Accordingly, it is not necessary for us to make a determination on the balance of Ventura Homes’ submissions.
What amount of costs should be fixed?
114
It is well established the Tribunal is to ‘approach the task of fixing costs in a broad and relatively robust fashion’ and must be satisfied the costs claimed are reasonable in the circumstances.54 Due to the quantum claimed, our consideration has been more detailed than may have been necessary for a much smaller amount.
115
It has been said the Tribunal will ‘always strive to maintain proportionality between the subject matter of the proceedings and the costs associated with the proceedings’.55 However, proportionality is not to be assessed in hindsight by simple comparison to the amount recovered, but keeping in mind the circumstances as they reasonably appeared to the claimant at the time the costs were incurred.56
116
Ms Cairnes did not object to the quantum claimed by Ventura Homes, except to submit:57
(a) If the Tribunal determined to award costs based on an unreasonable refusal of a settlement offer, the Tribunal had in the past awarded costs calculated from the date of the offer.
54 For example, Hippydayze Pty Ltd and Mener Group Pty Ltd [2019] WASAT 92 (S) at [12].
55 J & P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) at [9].
56 Terravision Pty Ltd v Black Box Control Pty Ltd [No 5] [2018] WASC 340 at [25].
57 ARSC at paras 30 – 35.
[2024] WASAT 111 (S)
Page 31
However, that would not be possible based upon the way the schedule of legal costs was prepared.
(b) It was unclear whether the costs claimed for photocopying and printing were costs actually incurred by Ventura Homes.
(c) Ventura Homes claimed costs in excess of $200,000 in relation to proceedings in which the usual position is that parties bear their own costs and where the original amount claimed was $242,230. Therefore, there should be orders for an assessment of costs.
Expert fees
117
Ventura Homes claimed $48,043.88 in relation to the cost of expert reports of Mr Martelli (building expert) and Ms Campbell and Dr Taylor (mould experts) and their attendance at the final hearing. The claim was supported by copies of all relevant invoices.
118
The evidence of those experts was credible and included appropriate concessions in favour of Ms Cairnes. It is relevant to note each of the experts had been required to review a significant volume of material, each gave evidence over the course of some one and a half days and the mould experts had been expected to give evidence in August 2023 and March 2024 before finally being called in May 2024.
119
We placed significant reliance upon the evidence of the experts and we are satisfied it is appropriate to allow recovery of their fees in full.
Other disbursements
120
Ventura Homes claimed the following disbursements:58
Process server fees
$894.78
Tribunal fees in relation to summonses to witnesses
$1,337.50
Tribunal fees in relation to the production of transcript
$13,657.15
Printing and photocopying
$1,738.35
58 RSSC at para 30 and Annexure A.
[2024] WASAT 111 (S)
Page 32
Postage
$7.65
Total
$17,635.43
121
We believe the claim in relation to Tribunal fees for witness summonses to contain an error. Tribunal records indicate $53.50 was charged for each of five witness summonses at a total cost to Ventura Homes of $267.50. We observe the line items in the schedule identify the same invoice numbers multiple times.59
122
Ventura Homes’ submissions did not specifically address the justification for an order reimbursing these costs. We accept the calling of the witnesses was necessary and the Tribunal benefitted from hearing their evidence. We also consider ordering transcript was reasonable and necessary given the final hearing had to be adjourned on two occasions. We are not satisfied the postage or printing and photocopying was necessary given the hearing books were provided to the parties electronically.
123
For these reasons we will allow $14,819.43 in relation to the costs of the process server, witness summonses and transcript.
Legal costs
124
Ventura Homes sought legal costs of $139,159.35 which were said to be 75% of the total legal costs incurred.60 This amount was in turn calculated with reference to the hourly rates contained in the Legal Profession (State Administrative Tribunal) Determination 2020 (WA), Legal Profession (State Administrative Tribunal) Determination 2022 (WA) and Legal Profession (State Administrative Tribunal) Determination 2024 (WA) (collectively SAT Determinations).61
125
The SAT Determinations prescribe the maximum rate which a legal practitioner may charge a client for work in relation to Tribunal proceedings, unless there is a written costs agreement in effect. They do not prescribe party/party costs, but the Tribunal may refer to the SAT Determinations in fixing the amount of costs.
59 RSSC at pages 21 – 22.
60 RSSC at para 30.
61 RSSC at para 32 and Annexure A.
[2024] WASAT 111 (S)
Page 33
126
The Tribunal may also have regard to the scales of costs which apply to court proceedings.62
127
In court proceedings there exists a clear difference between practitioner/client costs and party/party costs.63 Court scales of party/party costs contain references to work performed as a necessary part of the court proceedings, such as the drafting of pleadings and attending hearings. There may be much work which is a necessary part of representing the client which is not ordinarily recoverable by way of party/party costs.
128
Ventura Homes’ quantification of its legal costs is contained in a schedule which provides a broad description of the work performed, the range of dates between which the work was performed, the number of hours claimed, the per hour rate claimed and whether the work was performed by senior practitioner or counsel.
129
Ventura Homes has not lodged copies of the relevant invoices. Clearly in such protracted proceedings, the invoices are likely to be numerous. However the absence of the invoices limits our assessment of the claim:
(a) Without naming the legal practitioners who performed various items of work we are unable to confirm they have been admitted sufficiently long at the relevant times to meet the criteria for being a senior practitioner (as compared to a junior practitioner, restricted practitioner or clerk).
(b) The only evidence the sum claimed was due and owing by Ventura Homes was the line in Mr Buchan’s affidavit stating that Ventura Homes had paid legal costs equal to or in excess of that claimed in relation to each item in the schedule.64
(c) There is a difficulty in assessing the reasonableness of the costs or the date on which specific costs were incurred. For example, item 3 concerned the costs of preparing for and attending directions hearings between date ranges which vary from days to months in duration. One such claim is from 24 September 2021 to 12 May 2022, during which period there were four directions hearings in relation to CC 976/2020, CC 1588/2020
62 Marvelle at [47]; Edge Investments WA Pty Ltd and Q Group WA Pty Ltd [2024] WASAT 9 (S) at [61] – [64].
63 Not including special or indemnity costs to which other considerations apply.
64 Buchan affidavit at para 15.2.
[2024] WASAT 111 (S)
Page 34
and CC 196/2021 and three of those directions hearings also concerned CC 38/2022 and CC 39/2022. In relation to the relevant period there is a general claim for 6.2 hours’ work of a senior practitioner and 3.5 hours’ work of counsel.
130
Our starting point was to disregard costs incurred prior to 23 September 2021, because the consideration and later rejection of that offer should have caused Ms Cairnes and her then solicitors to pay close regard to the potential costs consequences.65
131
Some costs are claimed for a period both before and after this date without differentiation. We do not see the role of the Tribunal in this process as being required to work out the details for Ventura Homes in circumstances where they are legally represented. Accordingly, where a sum has been claimed in that manner, the entire amount has been disregarded.
132
We are not minded to include sums relating to conferrals between Ventura Homes and its solicitors, conferrals between the various solicitors working on the proceedings for Ventura Homes, correspondence with the Tribunal nor communications with Ms Cairnes. This is because the submissions failed to address the grounds on which these amounts should be included in an award of party/party costs.
133
We do not consider Ventura Homes should recover its costs in relation to its application to defer the final hearing because that was sought by Ventura Homes for reasons unrelated to Ms Cairnes’ management of her claims.
134
Similarly, we do not see Ventura Homes should recover its getting up for the final hearing which it successfully vacated. One of the sums claimed for getting up spans between August 2022 and June 2024. We are unable to ascertain what proportion might relate to the vacated hearing and have therefore disregarded the whole. We do not see why getting up was required in July to November 2024, which was after the conclusion of the final hearing.
135
Ventura Homes attended 12 directions hearings between 23 September 2021 and 27 September 2024 (the date on which the substantive decision was published). The claim is for 20.9 hours’ preparation and attendance at a total cost of $8,527.20, 75% of which is
65 McLerie at [20].
[2024] WASAT 111 (S)
Page 35
$6,395.40. The Tribunal records indicate the total duration of the
hearings was five hours and there is little indication substantial preparation would have been required in relation to the directions hearing. For these reasons, we consider $4,000 is reasonable.
136
The balance of the claim was:
Preparing Scott schedules
23/02/2022 – 15/06/2022
4
$418 (@ SP rate)
$1,672.00
12/05/2023 – 28/07/2023
2.1
$429 (@ SP rate)
$900.90
Preparing books of documents
10/05/2023 – 12/05/2023
5.9
$429 (@ SP rate)
$2,531.10
Preparing witness summaries
10/05/2023 – 12/05/2023
6.5
$429 (@ SP rate)
$2,788.50
Liaising with experts
10/05/2023 – 26/06/2024
12.7
$429 (@ SP rate)
$5,448.30
Drafting summons to give evidence
2/08/2023 – 3/08/2023
1.3
$429 (@ SP rate)
$557.70
Drafting chronology
29/08/2023
0.6
$429 (@ SP rate)
$257.40
Preparing for final hearing
5/04/2023 – 2/05/2024
76
$429 (@ SP rate)
$32,604.00
1.5
$132 (@ C/PL rate)
$198.00
Attendance at final hearing
30/08/2023 – 3/05/2024
41.2
$385 (@ C rate)
$15,682.00
Preparing closing submissions
7/05/2024 – 28/06/2024
27.9
$429 (@ SP rate)
$11,969.10
1/07/2024 – 31/07/2024
25
$484 (@ SP rate)
$12,100.00
5.4
$275 (@ RP rate)
$1,485.00
Total
$88,194.00
137
We have some reservations regarding the proportionality of the charges in relation to the preparation of witness statements when compared their content and in relation to preparation for the hearing and the preparation of closing submissions as compared to the duration of the final hearing. We consider it appropriate to allow $50,000.
[2024] WASAT 111 (S)
Page 36
Conclusion
138
For the reasons set out above, we are satisfied Ventura Homes demonstrated it is fair and reasonable for Ms Cairnes to pay its costs and disbursements fixed at $116,863.31.
Orders
The Tribunal orders:

1. The application of the applicant is dismissed.
2. The applicant is to pay to the respondent costs fixed at $116,863.31, in respect of the costs in CC 976/2020, CC 38/2022, CC 1588/2020, CC 39/2022 and CC 196/2021 within 60 days of the date of this order.
3. The parties have liberty to apply to the Tribunal within 14 days of the date of this order to be heard with respect to the issue of the time to pay the costs set out above.
   I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal.
   MS N Oldfield, MEMBER
   1 MAY 2025