SEARLE and KELSO [2009] WASAT 255 (23 December 2009)

 

Last Updated: 22 March 2010

 

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM : COMMERCIAL & CIVIL

ACT : CONSTRUCTION CONTRACTS ACT 2004 (WA)

CITATION: SEARLE and KELSO [2009] WASAT 255

MEMBER : MR C RAYMOND (SENIOR MEMBER)

MR T CAREY (MEMBER)

MR M SPILLANE (MEMBER)

HEARD : 30 SEPTEMBER 2009

DELIVERED : 23 DECEMBER 2009

FILE NO/S : CC 1216 of 2009

BETWEEN: ANDREW SEARLE

Applicant

AND

KEN KELSO

Respondents

 

Catchwords:

Construction Contracts Act 2004 (WA) - Application for review of decision by adjudicator to dismiss - Whether claim complied with implied statutory requirements - Whether contract required final claim to be made during period of notice prior to termination - Whether contract permitted only one 'final account'

 

Legislation:

Builders' Registration Act 1939 (WA), s 12A

Construction Contracts Act 2004 (WA), s 3. s 6. s 16. s 26. s 26(1). s 3 l(2). s 3 1 (2)(a), s 3 1 (2)(a)(ii), s 46(1), s 46(2), cl 5(2), cl 5(2)(f), cl 5(2)(h) Sch 1 Div 4

State Administrative Tribunal Act 2004 (WA), s 27(1). s 27(2). s 27(3). s 29(1)

 

Result:

Application refused

Decision under review affirmed

Category: B

Representation:

Counsel:

Applicant : Self-represented

Respondents : Ms GB Visscher

Solicitors:

Applicant : N/A

Respondents : Chris Williams

 

Case(s) referred to in decision(s):

Ex parte Lesiputty; Re Murphy (1947) 47 SR (NSW) 433

Merym Pty Ltd and Methodist Ladies College [2008] WASAT 164

 

 

REASONS FOR DECISION OF THE TRIBUNAL:

 

Summary of Tribunal's decision

 

1 The applicant applied under s 46(1) of the Construction Contracts Act 2004 (WA) to review a decision of an adjudicator to dismiss an adjudication application without a determination on the merits. The applicant builder gave notice of termination of his building contract to the respondent owners, as he was entitled to do, on 15 October 2007. On 23 November 2007, he issued an invoice for almost $18,000 as the 'total due' after taking into account the deposit paid by the respondents. The invoice was never paid, and the parties issued separate proceedings in the Magistrates Court and the Building Disputes Tribunal.

 

2 On 19 June 2009, the applicant sent another invoice to the respondents for more than $29,000, which comprised the amount previously claimed, GST omitted from the amount previously claimed, and three fresh invoices of subcontractors and suppliers, together with builder's margin on these new items. The applicant made the adjudication application on the premise that failure to pay the 19 June 2009 invoice within seven days constituted a payment dispute under the Construction Contracts Act 2004 (WA).

 

3 The Tribunal considered the terms of both the building contract and the Construction Contracts Act 2004 (WA) in order to determine whether either or both of the invoices were payment claims capable of giving rise to a payment dispute. It found that although the 23 November 2007 invoice was capable, having regard to the contract, of constituting a payment claim, it did not, because it failed to comply with the requirements for such claims implied by the Construction Contracts Act 2004 (WA) . In respect of the 19 June 2009 invoice, the Tribunal found that to the extent that it repeated the previously invoiced claim, it suffered from the same failure; that the additional charges for the fresh invoices also failed to comply with the implied requirements; and that the GST claim could not stand alone in the absence of the proper itemisation and description of the work to which it applied.

 

4 The Tribunal considered the alternative basis for the adjudicator's rejection of the 19 June 2009 invoice as a payment claim that under the contract a final claim had to be made prior to the expiry of the required notice period for termination, for which it found support when the contractual termination clause was read as a whole. It did not determine that issue however. It found that the 23 November 2007 invoice was the final account contemplated by the termination clause, and that no further account giving rise to a payment dispute could be submitted.

 

5 The application for review was therefore dismissed and the decision of the adjudicator was affirmed.

 

Introduction

 

6 The applicant (Mr Searle) has applied under s 46(1) of the Construction Contracts Act 2004 (WA) (CC Act) for review of a decision of an adjudicator duly appointed under the CC Act to dismiss Mr Searle’s application for adjudication pursuant to s 3 1(2)(a) of the CC Act, without making a determination of its merits.

 

7 On or about 24 January 2007, Mr Searle , as a builder, entered a contract with the respondents (the Kelsos), as owners, for the construction of a residence in Hamilton Hill. The contract is a 'cost plus' contract; that is, it provides for the Kelsos to pay Mr Searle

 

... the Actual Cost of the Works together with the Builder's Fee as defined in the

Conditions of Contract in accordance with the Contract.

 

8 'Actual Cost of the Works' is defined in item 7 of the 'Appendix' to the contract to include remuneration for labour and personnel in Mr Searle 5 ' s employ, net costs of building materials, supplies and equipment, net cost of all subcontracts, and:

 

... any tax, levy or duty legally payable on building materials or construction, including but not limited to GST.

 

9 The 'Builder's Fee' is also referred to in item 8 of the Appendix as comprising:

 

20% + GST on the Actual Cost of the Works ...

 

10 Although based upon the standard Master Builders Association contract applicable at the time, the contract contains a number of modifications.

 

11 Clause 23, dealing with payment, is modified so as to read (limited to the extent to which it is relevant, and reordered from how they appear in the contract for consistency with the numbering protocol used):

 

(a) The Actual Cost of the Works plus the Builder's Fee must be paid to the Builder by payments made progressively during the execution of the Works as provided in Appendix Item 1.

(a)(i) The owner shall pay to the builder a deposit of $16000 prior to works

commencing.

(a)(ii) The deposit shall be deducted from the final account.

 

12 Standard cl20, which dealt with termination by the owner, and standard cl21, which dealt with termination by the builder, were both deleted and the following cl 33 added as the sole 'special condition of contract':

 

Either the owner or the builder may terminate this contract for any reason by giving the other party 14 days notice. The owner shall be liable to pay the builder all unclaimed amounts at this time. The builder shall not complete any more work upon notice of termination. Termination may occur at any time and no liability shall attach to the builder or the owner arising out of early termination, except in respect of payment of monies for work completed in Clause 8. If the owner is entitled to a refund where the amount remaining to be paid in Clause 8 is less than the deposit refund amount in Clause 23(a)(ii) then the builder shall remit the difference to the owner upon termination.

 

13 It is common cause that the reference in cl 33 to 'Clause 8' is to the item in the Appendix by that number dealing with the Builder's Fee.

 

14 Item 2 of the Appendix provides:

 

Period for payment of progress claims or final account. 7 days

If none provided, 7 working days. Clause 23.

 

History of relevant claims

 

15 On 15 October 2007, at approximately lock-up stage, Mr Searle gave notice to the Kelsos, in accordance with cl33, of termination of the contract.

 

16 On 23 November 2007, Mr Searle issued a tax invoice showing 'Job cost' of $253,825, 'Less amounts already paid' of $236,000, leaving, as 'Total Due', $17,825. This figure took into account the deposit, apparently in accordance with the requirement for final claims of cl23(a)(ii).

 

17 The Kelsos did not pay the $17,825 or any other amount in respect of the 23 November 2007 tax invoice, but no adjudication application was made under the CC Act. Instead, on 6 February 2008, Mr Searle commenced proceedings against the Kelsos in the Magistrates Court seeking recovery of the amount of the tax invoice pursuant to the contract. Included in the summary of facts relied upon by Mr Searle in his Magistrates Court claim were:

 

6. Claimant [builder] commenced construction of the new home for the Defendants [owners] on or about the 14 March 2007.

7. The Claimant proceeded to construct the new home to a point approximating lock-up stage whereupon the Claimant gave notice to the Defendants in writing on 15th October 2007 that he had terminated the contract.

8. Up until the date of termination of the contract, the defendants had incurred costs due to the Claimant under the contract of $253,825. The defendants had variously paid amounts totalling $236,000 in accordance with the contract.

9. On the 23rd of November 2007, the Claimant issued a tax invoice to the Defendants in the sum of $17,825 being for the balance due in accordance with the contract upon termination.

10. It was an express term of the contract that the Defendants pay the Claimant's invoice within seven days.

11. It was an express term of the contract that the Claimant need not supply the Defendants with itemised accounts in order to obtain payment for invoices. Upon request the Claimant was nonetheless supplied with copies of all records and payments making up the actual cost of the work.

 

18 The Kelsos filed a defence to the claim and a counterclaim for $50,000 in relation to the works performed by Mr Searle under the contract. They also lodged a complaint with the Building Disputes Tribunal under s 12A of the Builders' Registration Act 1939 (WA).

 

19 On 25 June 2008, the Magistrates Court proceedings were stayed, pending the outcome of the Building Disputes Tribunal proceedings, in relation to which we were informed that the hearing took place shortly before the hearing in this matter and a decision is awaited.

 

20 Under cover of a letter dated 19 June 2009, solicitors instructed by Mr Searle furnished the owners with a further tax invoice for $29,414. In their covering letter, the solicitors stated:

 

It has come to our attention when invoicing Mr and Mrs Kelso, our client did not calculate his contractual entitlement payments correctly and subsequently did not claim all amounts due for payment in any previous tax invoices rendered to Mr and Mrs Kelso arising from the building works in question.

 

21 The invoice is reproduced in full here:

 

21 The invoice is reproduced in full here:

[image]

22 It is accepted that the net effect of the invoice was to claim the amount previously claimed of $17,825, GST not previously claimed, three other invoices from subcontractors or suppliers also not previously claimed, and with the builder's margin on these new items.

 

23 The final paragraph of the solicitors' letter stated:

 

We note that should our client not receive payment in full, then we advise we will apply for adjudication of the payment dispute under the Construction Contracts Act 2004 (WA) without delay.

 

24 On 29 June 2009, Mr Searle, made an application for adjudication under the CC Act. The adjudication application included:

 

11. On 23 November 2007, the Claimant submitted a tax invoice to the Respondents' for an amount owing of $17825. To date the Respondents' have refused to pay this amount.

 

13. The Claimant submits that the basis for the invoice of 23 November 2007 (this is the job cost or amount to be paid to the builder), was wrongly calculated as detailed below:

 

(a) Actual Cost of the works (exclusive of GST) $192,291

(b) Add 20% margin (on (a) above) $38.458

Total $230,750

(c) Add 10% GST on total (above) $23,075

S/total (amount to be charged by the Claimant) $253,825

 

14. The Claimant also submits that the basis for the invoice of 23 November 2007 did not include all amounts to which it was entitled to charge. Specifically the actual cost of the works in this claim did not include amounts from three invoices for works and materials which the Claimant had paid for in respect of the contract. The Claimant refers to copies of the following invoices annexed hereto:

 

(1) 19/03/07 Lalli & Associates - $145 (exclusive of GST)

 

(2) 28/06/07 BGL Construction - $5 173.98 [exclusive of GST]

 

(3) 30/04/07 Freo Machinery - $166.16 [exclusive of GST]

 

15. The Claimant submits these amounts should have been charged for and payable in accordance with the contract conditions.

 

THE CORRECT AMOUNT

 

16. The Claimant submits that the invoice of 23 November 2007 was therefore incorrect as detailed above, and should have been as follows:

 

(a) Actual Cost of the works (inclusive of GST) $211,520

(b) Add amounts not charged (inclusive of GST) $6,033

(d) Add 20% margin (on (a) and (b) above) -

the Builders Fee $43,510

(e) Add GST on builders fee $4.351

S/total (amount to be charged by the Claimant) $265,414

 

17. The claimant therefore submits that a payment dispute arose in accordance with the Act in respect of its invoice dated 19/06/09 when it was otherwise not paid by 26/09/09 (sic).

 

Adjudicator's decision on adjudication application

 

25 On 24 July 2009, the adjudicator dismissed the application without making a determination of its merits in accordance with 3 1(2)(a)(ii) of the CC Act, on the basis of a series of findings which led him to conclude that the adjudication application was not prepared and served in accordance with s 26 of the CC Act. Section 26 provides that any application to have a payment dispute adjudicated must be prepared and served within 28 days after the dispute arises.

 

26 The findings upon which the adjudicator reached his decision were:

 

 

Our consideration

 

27 A person who is aggrieved by a decision of an adjudicator to dismiss an adjudication application under s 3 1(2)(a) of the CC Act may apply to the Tribunal for review: s 46(1) of the CC Act. The review by the Tribunal is by way of a hearing de novo: s 27(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act). This renders otiose Mr Searle’s numerous references, in the grounds of the application and elsewhere, to alleged errors of the adjudicator in arriving at his decision, except, perhaps, to the extent that he can show that it is incumbent on the Tribunal to avoid the same errors in arriving at the correct and preferable decision, being the purpose of the review: s 27(2) of the SAT Act. Further, when dealing with a matter by way of review, the Tribunal has the functions and discretions corresponding to those exercisable by the decision maker in making the reviewable decision: s 29(1) of the SAT Act. The Tribunal may affirm the decision being reviewed; vary the decision; or set aside the decision and substitute its own decision or send the matter back to the decisionmaker for reconsideration: s 27(3) of the SAT Act. In the event that the decision under s 3 1(2)(a) of the CC Act is set aside, the adjudicator is to determine the adjudication application on the merits: s 46(2) of the CC Act.

 

28 We will consider the application of the CC Act to the facts by dealing in sequence with the claim made by the tax invoice dated 23 November 2007 and then the claim made by the tax invoice date 19 June 2009. In relation to the first invoice, we are concerned to establish whether it constituted a payment claim for the purposes of the CC Act, and to determine the consequences, if any, of our finding in that regard for the status of the second invoice, which was the subject of the adjudication application.

 

Invoice dated 23 November 2007

 

29 'Payment claim' is defined relevantly by s 3 of the CC Act to mean a claim made under a construction contract:

 

(a) by the contractor to the principal for payment of an amount in relation to the performance by the contractor of its obligations under the contract ; or

 

...

30 Clearly, in our view, the first invoice had the potential of being a 'payment claim' for the purposes of the CC Act.

 

31 'Payment dispute' is described relevantly by s 6 of the CC Act in the following terms:

 

For the purposes of this Act, a payment dispute arises if –

 

(a) by the time when the amount claimed in a payment claim is due to be paid under the contract, the amount has not been paid in full, or the claim has been rejected or wholly or partly disputed; (our emphasis).

 

32 The terms of payment of the $17,825 claimed in the invoice were 'seven days'. Clearly, this is a reference to the period within which payment of the invoiced amount was to be made from when the invoice was rendered, which is consistent with item 2 in the Appendix to the contract; the specified period being working days rather than calendar days. Therefore, assuming for the present that the invoice in question constitutes a payment claim, on or shortly after 2 December 2007, when the invoice amount had not been paid, a payment dispute as described by the CC Act had arisen. This would therefore be the commencement date for the 28 day period prescribed by s 26(1) of the CC Act within which an adjudication application in respect of such a payment dispute could be made. As we have said, Mr Searle did not make an adjudication application within that 28 day period; he opted to commence the proceedings he did, at a later time, in the Magistrates Court.

 

33 In any event, we do not consider that the invoice did constitute a payment claim within the meaning of the CC Act. Section 16 of the CC Act is headed 'Making claims for payment' and states:

 

The provisions in Schedule 1 Division 4 are implied in a construction contract that does not have a written provision about how a party is to make a claim to another party for payment.

 

34 The construction contract in this case does not have a written provision about how a party was to make a claim, making Sch 1 Div 4 applicable. Clause 5(2) of Sch 1 Div 4 states:

 

(2) A payment claim must -

 

(a) be in writing;

 

(b) be addressed to the party to which the claim is made;

 

(c) state the name of the claimant;

 

(d) state the date of the claim;

 

(e) state the amount claimed;

 

(f) in the case of a claim by the contractor - itemise and describe the obligations that the contractor has performed and to which the claim relates in sufficient detail for the principal to assess the claim; (our emphasis)

 

(g) in the case of a claim by the principal - describe the basis for the claim in sufficient detail for the contractor to assess the claim;

 

(h) be signed by the claimant; and

 

(i) be given to the party to which the claim is made.

 

35 The object of this implied provision, selfevidently, is to ensure that the recipient of a payment claim can be clear as to the authenticity of the claim being made, the tasks forming part of the entire contract to which the claim relates, and as to how the claim is calculated or arrived at.

 

36 We referred earlier to the full contents of the body of the first invoice. Although it is addressed to the Kelsos and states Mr Searle’s business name, we find that the invoice plainly fails to comply with the clear requirements of cl 5(2) appearing in cl 5(2)(f) and cl 5(2)h) of Sch 1 Div 4. The invoice omits any reference to the obligations performed and to which the claim related as required by cl 15(2)(f); it simply states dollar values for the three items 'Job cost', 'amounts already paid' and 'Total Due'. In terms of cl 5(2)(h), the invoice itself was unsigned, and there is no evidence that the invoice was sent under cover of a letter or other document signed by or on behalf of Mr S earle .

 

37 Mr S earle sought to rely upon a document described as a 'job transactions spreadsheet' as having been provided both at the time of rendering the invoice, and to the adjudicator as part of the adjudication application. Counsel for the Kelsos submitted that only a 'single piece of paper' was provided at the time, being the invoice itself. The adjudication decision does not refer to this issue, so it is difficult for us to know where the truth lies, although the spreadsheet which is in the papers before us bears the date '2311 112007' and time '12:58 PM', which would suggest that it was produced at the time, and for the purposes, of the invoice of the same date. Assuming this was the case, however, the spreadsheet could not bridge the gap which exists in terms of the compliance by the invoice of the Sch 1 Div 4 requirements. It comprises three and a half typewritten pages of entries, mainly purchases, adding to a total of $192,291.93, to which builder's margin and GST are added to arrive at the figure of $253,825.3 5. A typical purchase entry reads:

 

ID [No] Src Date Memo Account [No] Debit

 

201019 15 PJ 24/04/2007 Purchase; Bunnings Warehouse 5- 1 140 $2,986.00

 

38 Such an entry suffers, when the statutory requirements are considered, from its failure to refer to the fact that the purchase related to the site of the building works, let alone the particular task with respect to which the purchase was made. It would not have been possible, reading the invoice and the spreadsheet together, for the Kelsos to make any assessment that the amounts charged were proper and reasonable.

 

39 Our findings lead us to conclude that the invoice, with or without the spreadsheet, could not provide the basis of a payment dispute, and Mr Searle could not have brought an adjudication application in respect of the Kelsos' failure to pay it. Had he done so, it would have had to have been dismissed because it did not comply with s 26 of the CC Act.

 

40 Nothing we have just said affects the ability asserted by Mr Searle for him to make, at any time, successive, 'final' claims in respect of actual cost of works claims and the builder's fee. Indeed, what we have said tends to remove the potential obstacle for his second invoice that it partly covers the same work as the first invoice. However, we have not yet touched upon the questions of limitation of the time by which any final claim should be made under the contract and whether the contract imposed a restriction on the number of 'final claims' that can be made. We will defer our consideration of these questions to the next section of our reasons dealing with the second invoice, upon which the outcome of the application depends.

 

Invoice dated 19 June 2009

 

41 As with the first invoice, the terms of payment of the $29,414 claimed in the second invoice were seven days. Therefore, assuming that the second invoice constituted a payment claim, a payment dispute as described by the CC Act arose on or shortly after 27 June 2009. The adjudication application was served on 29 June 2009, well within the 28 day period within which an adjudication application needed to be brought.

42 Bearing in mind the requirement to imply into the contract the provisions in Sch 1 Div 4, we find, in respect of the amount of $17,825 previously invoiced, that the invoice of 19 June 2009 fails to comply with the requirement of cl 5(2)(f) of Sch 1 Div 4, as did the first invoice. The second invoice makes reference to the first invoice without any further detail, and by doing so, it imports the same lack of detail which resulted in our conclusion of lack of compliance in the case of the first invoice. The solicitors' covering letter did not address this issue.

 

43 In relation to the three invoices which make up the additional total of $6,033, we are content to adopt the adjudicator's reasons for rejecting them as valid payment claims that they fail to describe sufficiently the costs to which they relate, and that the largest of the three invoices ($5,691.38 to BGL) does not include a site address.

 

44 This leaves the amount of $4,35 1 claimed in respect of GST said to have been missed from the invoice of 23 November 2007.

 

45 Our conclusion regarding the invalidity of the first invoice as a payment claim breathes life into a claim made as long as some 20 months later relating to the same project, without resort being necessary to previous cases dealing with 'refreshed claims' such as Merym Pty Ltd and Methodist Ladies College [2008] WASAT 164. However, the GST claim relates to exactly the same work performed (although not itemised and described) as is the subject of the 23 November 2007 invoice. It is a reworking of the amount claimed for that work, and, properly characterised as such, cannot stand alone in respect of the GST component said to be payable. As the work has not been itemised and described, the invoice cannot constitute a valid payment claim in accordance with the requirements of cl 5(2) of Sch 1 Div 4 of the CC Act.

 

46 We turn to the alternative basis relied upon by the adjudicator for finding that the second invoice was not a 'payment claim' for the purposes of the CC Act, that the contract required that any final claim be submitted within the 14 day period for notice of termination required under cl 33 of the contract.

 

47 We agree with the adjudicator's assessment that the modified cl23 and the special condition cl33 are 'not very satisfactory' in terms of specifying the requirements for claims and payment of claims upon termination. Clause 33 is composed, relevantly, of the following elements:

 

 

48 The adjudicator relied in particular on the requirement in cl 33 for the builder to remit a refund, in circumstances where it was owed, to the owner 'upon termination'. On its own, this phrase is ambiguous. As stated by Jordan CJ in Exparte Lesiputty; Re Murphy (1947) 47 SR (NSW) 433 at 436:

 

. . . The word 'upon' in different cases, may undoubtedly either mean before the act done to which it relates, or simultaneously with the act done or after the act done, according as reason and good sense require the interpretation, with reference to the context, and subject matter of the enactment . . .

 

49 Support for the adjudicator's interpretation is provided, in our view, by the owner's obligation to pay (if there is one) arising 'at this time', being at the expiry of the 14 day notice period, when the contract terminated. Further, the amount so payable in such a case is to be determined having regard to the deposit, which deposit, according to cl23(a)(ii), 'shall be deducted from the final account ' (our emphasis). When read as a whole, according to the adjudicator's interpretation of cl 33, with which we agree, what the clause contemplates is the settling of the financial account between the parties, whether by way of the builder paying the owner or vice versa, (immediately) upon termination. A final account, reflecting any balance payable either way, is required at that time.

 

50 The adjudicator treated the making of a claim before the notice period expired as a condition precedent to the ability of Mr Searle to recover any amount not previously claimed under the contract. This would preclude any right to make a claim after the notice period had expired.

 

51 Mr Searle contends that the clause contains no time limitation upon the making of claims in the event of a cl 33 termination, and points to the practical difficulties of finalising claims where third parties such as subcontractors are involved as militating against the adjudicator's constructions of cl 33.

 

52 We do not find it necessary to determine whether the making of a claim within the 14 day period operates as a condition precedent. Our reservation in doing so is that to which referred, that such an outcome would require that he got in all of the invoices from his subcontractors and suppliers within a relatively short period, which may well be extremely difficult to achieve. It may be open to argue that such an interpretation would result in an absurdity, because a claim made one day late might absolve the Kelsos from a liability for many thousands of dollars. Evidence of the surrounding circumstances might aid a proper appreciation of the commercial purpose of the contract, and therefore the correct interpretation of the clause.

 

53 If making a claim for a final payment within the termination notice period was not a condition precedent as outlined, Mr Searle was still technically in breach of the contract by not rendering an account until 23 November 2007, because the contract imposed liability, where it existed, upon the owner at the moment of termination, making it incumbent on Mr Searle to furnish the owner with any claim before then. But little may turn on that. Contractually, on this interpretation, payment of the amount due had to be made within seven days of the provision of the account. The account of 23 November 2007 was clearly the final account contemplated by cl 23(a) (ii) and cl 33 (albeit late), and the contract does not permit nor contemplate further accounts being rendered. We agree with the adjudicator that there can be only one 'final account'. It would, therefore, not be possible to submit a further account such as that on 23 June 2009, even if it was in complying form, so as to give rise to a payment dispute capable of adjudication.

 

Conclusion

 

54 For the above reasons, we agree with the adjudicator's decision that the adjudication application falls to be dismissed under s 3 1(2)(a)(ii) of the CC Act.

 

55 At the hearing, counsel for the Kelsos indicated that her clients would seek an order for their costs in the event that the application failed. Both parties made some oral submissions on such an application. It was indicated to the parties that if appropriate, the parties would be invited to make written submissions on costs. That invitation is incorporated into the Tribunal's orders.

 

Order

 

56 The Tribunal shall issue an order that:

 

1. The application is dismissed.

2. The decision under review is affirmed.

3. Subject to the respondents, on or before 22 January 2010, filing with the Tribunal, and serving on the applicant:

 

(a) a bill of costs;

 

(b) a statement of the basis on which costs have been included in the bill of costs and providing any relevant factual support for the application; and

 

(c) written submissions supporting the application;

 

the respondents may apply for their costs of the proceeding.

 

4. If the respondents make application for costs, the applicant may, on or before 5 February 2010, file written submissions opposing the application.

 

5. If the respondents make application for costs, the Tribunal shall, after the applicant files his written submissions, or 5 February 2010, whichever is the earlier, determine the application the documents, and if costs are awarded, shall fix the amount of such costs.

 

I certify that this and the preceding [56] paragraphs comprise the reasons for decision of the State Administrative Tribunal.

 

MR C RAYMOND, SENIOR MEMBER