CATAPANG and SINCERITY BUILDING GROUP PTY LTD [2025] WASAT 137 (S)

[2025] WASAT 137 (S) Page 1 JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : BUILDING SERVICES (COMPLAINT RESOLUTION AND ADMINISTRATION) ACT 2011 (WA) CITATION : CATAPANG and SINCERITY BUILDING GROUP PTY LTD [2025] WASAT 137 (S) MEMBER : MS N OLDFIELD, MEMBER MR R AFFLECK, SENIOR SESSIONAL MEMBER HEARD : DETERMINED ON THE DOCUMENTS WRITTEN SUBMISSIONS FILED ON 11 AND 13 FEBRUARY, 20 AND 24 MARCH, AND 15 AND 18 MAY 2026 DELIVERED : 11 AUGUST 2026 FILE NO/S : CC 1059 of 2023 CC 1060 of 2023 CC 611 of 2024 BETWEEN : DIANNE CHRISTINE CATAPANG Applicant AND SINCERITY BUILDING GROUP PTY LTD Respondent Catchwords: HBWC complaints - Costs - Withdrawn proceedings - Extension of time - Settlement offers - Illegality of contract - Weakness of case - Tribunal objectives - Turns on own facts -- 1 of 26 -- [2025] WASAT 137 (S) Page 2 Legislation: Building Services (Complaint Resolution and Administration) Act 2011 (WA), s 49(1), s 49, s 49(7) State Administrative Tribunal Act 2004 (WA), s 9, s 87(1), s 87(2), s 92(1), s 92(2), s 92(4) State Administrative Tribunal Rules 2004 (WA), r 22, r 40, r 40(1)(b), r 41, r 41(2), r 42, r 42A, r 46 Result: Applications for costs by the applicant and the respondent dismissed Category: B Representation: Counsel: Applicant : Mr W Vogt & Mr S Mintz Respondent : Mr W Zappia & Ms C Brauer Solicitors: Applicant : Vogt Legal Respondent : Morgan Alteruthemeyer Legal Group Case(s) referred to in decision(s): Catapang and Sincerity Building Group Pty Ltd [2025] WASAT 137 Evans and Gumtown Pty Ltd trading as Imperial Pools [2020] WASAT 113 (S) Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S) Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 Gill and Wildnight Pty Ltd [No 2] [2008] WASAT 135 Hand and Arasi Constructions Pty Ltd [2020] WASAT 154 Howle v Best [2012] WASC 62 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134 (S) Lee and Pharmacy Board of Australia [2021] WASAT 132 (S) -- 2 of 26 -- [2025] WASAT 137 (S) Page 3 McLerie and Koleszko [2014] WASAT 160 (S) Medical Board of Australia and Tan [2022] WASAT 57 (S) Summerville and Department of Education & Training [2006] WASAT 368 (S) Sweetman and Skytree Homes Pty Ltd [2025] WASAT 104 (S) Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35 Wright and 3B Build Pty Ltd [2016] WASAT 68 Wright v de Kauwe [No 2] [2024] WASCA 51 -- 3 of 26 -- [2025] WASAT 137 (S) Page 4 REASONS FOR DECISION OF THE TRIBUNAL: Introduction 1 On 3 December 2025 we dismissed the application of Ms Catapang by which she sought compensation from Sincerity Building Group Pty Ltd (Sincerity) for breaches of a residential construction contract (the substantive decision).1 2 Both parties seek costs orders in relation to the substantive decision and in relation to two prior, related proceedings - CC 1059/2023 and CC 1060/2023 (the prior proceedings). 3 On 14 January 2026 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 to be determined 4 In relation to the prior proceedings, the issue is: (a) Should the parties be permitted to apply for costs even though the applications were made out of time? 5 In relation to the costs application in the present proceedings the issues to be determined are: (a) Is Ms Catapang entitled to an award of costs? (b) Is Sincerity entitled to an award of costs? (c) If the answer to either or both of (a) and (b) is yes, in what amount should costs be fixed? Relevant legal principles Costs generally 6 Section 87(1) of the State Administrative Tribunal Act 2004 (WA) (SAT Act) provides that 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 may order that a party pay a portion or all the costs of another party. 1 Catapang and Sincerity Building Group Pty Ltd [2025] WASAT 137. -- 4 of 26 -- [2025] WASAT 137 (S) Page 5 7 The enabling Act in this instance is the Building Services (Complaint Resolution and Administration) Act 2011 (WA) (BSCRA Act). Section 49(1) of the BSCRA Act relevantly states the Tribunal may make a costs order in relation to a home building work contract complaint. Section 49(7) provides that s 49 does not limit the powers of the Tribunal under the SAT Act. 8 The principles relating to costs in proceedings commenced pursuant to the BSCRA Act are well established. For example, Sweetman and Skytree Homes Pty Ltd [2025] WASAT 104 (S) at [8] to [15]. 9 The relevant principles 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) There is no presumption that a successful party is entitled to an award of costs. (c) Where a party withdraws, there is no presumption they should pay costs to the other party. (d) The party seeking to be paid costs must satisfy the Tribunal such an order is justified. (e) 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. (f) A party's failure to succeed does not of itself mean the party has acted contrary to the Tribunal's objectives. 10 It is often stated that where credibility is at the heart of a proceeding, that is a factor which may give rise to a costs order. This has arisen in decisions where a party's evidence was found to be 2 See SAT Act, s 9. -- 5 of 26 -- [2025] WASAT 137 (S) Page 6 implausible, without foundation or in the nature of misleading the Tribunal.3 11 The Tribunal must be satisfied that any costs to be awarded are reasonable, necessary and not excessive. In fixing an amount, the Tribunal will take a broad and relatively robust approach and refrain from 'an inquiry into small items of expenditure'.4 Settlement offers 12 Rule 42 of the State Administrative Tribunal Rules 2004 (WA) (SAT Rules) relevantly requires the Tribunal to 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. This is not to be taken as an intention that the failure to accept such an offer will usually result in a costs order.5 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 40 and 41. The offer must also be sufficiently specific that acceptance would have settled the issues in dispute.6 14 The SAT Rules do not oblige the Tribunal to consider non-compliant offers. However, the Tribunal may exercise its discretion to do so, in the public interest of encouraging the settlement of disputes.7 15 The Tribunal may also consider whether an offer was unreasonably rejected, having regard to factors including:8 (a) when in the proceedings the offer was made; (b) the time allowed for consideration of the offer; (c) the extent of the compromise on offer; (d) the recipient's prospects of success as at the date of the offer; 3 Summerville and Department of Education & Training [2006] WASAT 368 (S) at [32] - [35]. 4 Medical Board of Australia and Tan [2022] WASAT 57 (S) at [136]. 5 Kam Khazaly Pty Ltd and Western Australian Planning Commission [2025] WASAT 134 (S) at [104]. 6 Gill and Wildnight Pty Ltd [No 2] [2008] WASAT 135 at [40]. 7 Hand and Arasi Constructions Pty Ltd [2020] WASAT 154 at [16]. 8 McLerie and Koleszko [2014] WASAT 160 (S) at [4]. -- 6 of 26 -- [2025] WASAT 137 (S) Page 7 (e) the clarity of the terms of the offer; (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 at the time the offer was made; the recipient's subjective assessment is not relevant.9 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.10 Applications made out of time 18 SAT Rule 42A provides that a costs application may be made within 21 days of the orders in relation to which the costs application is made. 19 Section 92(1) of the SAT Act provides that rules may allow the Tribunal to extend a time limit for doing anything in connection with a proceeding or waive compliance with any other procedural requirement in connection with a proceeding. Section 92(2) provides that the extension or waiver may be authorised even if the time for compliance has passed. 20 SAT Rule 22 provides that the Tribunal may exercise any of the powers in s 92(1) in connection with any proceeding. SAT Rule 46 states the Tribunal may dispense with a requirement of a rule, either before or after the time for compliance arises. 21 Accordingly, the Tribunal has a discretion to allow an extension of time in which to make a costs application, or dispense with the requirement to make such an application within 21 days. The discretion may be exercised even when the 21 days has expired. 22 The general principles which apply to the exercise of discretion are as follows:11 9 Wright v de Kauwe [No 2] [2024] WASCA 51 (Wright) at [275] - [276]. 10 Evans and Gumtown Pty Ltd trading as Imperial Pools [2020] WASAT 113 (S). 11 Lee and Pharmacy Board of Australia [2021] WASAT 132 (S) at [29] - [30]; Wood and Law Complaints Officer as Delegate of the Legal Profession Complaints Committee [2024] WASAT 35 (Wood) at [57] - [62]; Fitzgerald and Mercedes Group Pty Ltd [2024] WASAT 33 (S) at [52] - [53]. -- 7 of 26 -- [2025] WASAT 137 (S) Page 8 (a) The purpose of exercising the discretion is to do justice between the parties. There is no right to an extension of (or dispensation with) the time limit and it must be established that strict compliance will, in the context of the proceedings, be an injustice. (b) There are four major factors to consider - the length of the delay, the reasons for the delay, whether there is an arguable case and the extent of any prejudice to the other party. 23 These principles are not exhaustive, and other considerations may be relevant in the particular circumstances of any case.12 24 Section 92(4) states that the Tribunal cannot extend time or waive compliance if doing so would cause any prejudice or damage to a party that cannot be remedied by an order for costs or damages. 25 The prejudice or damage which may bar the extension or waiver is not prejudice or damage that would have resulted from an application lodged in time.13 It must be caused by the extension or waiver, if granted. The existence of prejudice or detriment is enough, it does not have to reach a level of significance or materiality. Relevant Facts 26 The facts relevant to the issues to be determined are set out below. Some facts are uncontentious and others repeat our findings in the substantive decision. We have also made findings based upon the Tribunal's record of the proceedings, including documents filed by the parties, orders made by the Tribunal and transcript or audio recordings of hearings. 27 On 19 January 2021 the parties signed a contract for the construction of a residence (contract). The contract was backdated to 31 December 2020. 28 Sam Masih signed the contract on behalf of Sincerity. On the same day as the contract was signed, Mr Masih sent Ms Catapang information on how to apply for government building grants. 12 Wood at [61]; Howle v Best [2012] WASC 62 at [31]. 13 Wood at [72] - [73]. -- 8 of 26 -- [2025] WASAT 137 (S) Page 9 29 Subsequently, Sincerity issued a notice of an increase in the price of the contract. Ms Catapang signed a variation accepting the price increase on 4 February 2022. 30 On 22 November 2022 Sincerity notified Ms Catapang of a further price increase (November price increase). On 28 November 2022, Ms Catapang notified Sincerity she intended to dispute this price increase. 31 On 6 December 2022 Ms Catapang filed a notice of complaint with the Building Commissioner. There was a referral of this complaint to the Tribunal on 28 July 2023. The Tribunal designated the proceeding CC 1059/2022. The complaint disputed the validity of the November price increase. 32 On 15 May 2023 Ms Catapang filed a further notice of complaint with the Building Commissioner. This was also referred to the Tribunal on 28 July 2023 and was designated CC 1060/2023. The complaint claimed Sincerity had repudiated the contract. 33 In accordance with the usual practice of the Tribunal, the prior proceedings were heard together. There was an initial directions hearing in both matters on 12 September 2023, a mediation conference on 9 February 2024 and two further directions hearings on 11 April and 7 May 2024. The documents the parties were required to lodge were limited to confidential documents in relation to the mediation and one list of unavailable dates for the scheduling of a directions hearing at the conclusion of the mediation. 34 At the directions hearing on 7 May 2024 the solicitor for Ms Catapang advised the Tribunal that Ms Catapang had terminated the contract that same day, a notice of proposed complaint would be sent to Sincerity in two or three days and an additional complaint would be filed with the Building Commissioner 14 days thereafter. The presiding Senior Member enquired whether the prior proceedings would be withdrawn, on the basis they would be overtaken by the new complaint. 35 The issue of costs was raised. The solicitor for Ms Catapang said they had no instructions but doubted they would seek orders reserving the costs in the prior proceedings. The solicitor for Sincerity said their client would seek costs because the new complaint would require the duplication of work. -- 9 of 26 -- [2025] WASAT 137 (S) Page 10 36 Ultimately, the solicitor for Ms Catapang made an oral application for the withdrawal of the prior proceedings. The solicitor for Sincerity did not oppose the withdrawal, nor seek any other orders. Accordingly, the Senior Member made orders withdrawing the prior proceedings and drew the parties' attention to the requirement to lodge any application for costs within 21 days. No further application was lodged in the prior proceedings, until the applications currently under consideration. 37 On 30 July 2024 Ms Catapang filed another notice of complaint with the Building Commissioner. This complaint was referred to the Tribunal on 4 September 2024 and designated CC 611/2024. The referral contained two items of complaint alleging repudiation of the contract by Sincerity and no legal basis for the November price increase. 38 On 27 November 2024 Ms Catapang filed a Statement of Facts, Issues and Contentions (SFIC)14 which addressed the basis upon which a HBWC remedy order might have been made in favour of Ms Catapang in relation to the alleged breach or breaches of contract by Sincerity. At the same time, Ms Catapang filed her witness statement and a bundle of documents. Ms Catapang filed a substituted witness statement on 4 December 2024, amended to refer to documents as numbered in her bundle of documents. 39 On 7 February 2025 Sincerity filed a responsive SFIC. That document contained the following:15 1A. The Respondent joins issue with the facts, issues and contentions raised by the Applicant in her statement of facts, issues and contentions (ASFIC), except to the extent that the Respondent expressly accepts those matters below. … 1C. Subject to paragraph 1A above, the Respondent does not, in this document, respond to matters of submission or evidence contained in the ASFIC, but will do so in submissions in advance of the hearing. 40 Sincerity's SFIC did not address the alleged breach of contract by Sincerity but alleged the contract was void either wholly or in part and that Ms Catapang had not validly terminated the contract. At the same 14 The parties each filed a Statement of Facts, Issues and Contentions rather than the more usual Statement of Issues, Facts and Contentions. 15 Respondent's SFIC dated 7 February 2025 at para 1A and para 1C. -- 10 of 26 -- [2025] WASAT 137 (S) Page 11 time, Sincerity lodged a bundle of documents and witness statements of its director Liaoliang Zhu and of a former employee Lydia Li. 41 On 10 March 2025 Ms Catapang lodged a witness statement responding to Sincerity's SFIC and witness statements. On 11 March 2025 Ms Catapang lodged a responsive SFIC and a further bundle of documents. 42 By orders dated 6 March 2025, an expert conferral was listed for 4 April 2025 and the final hearing was listed for 13 June 2025. On 27 March 2025 Ms Catapang sought relisting of the expert conferral on the basis her expert was not available. Orders were made rescheduling the expert conferral to 1 May 2025, which took place on this day as planned. 43 On 26 May 2025 the solicitors for Sincerity sought relisting of the final hearing on the basis they had on the evening of the prior business day received an email advising Mr Zhu would be overseas and unavailable. In an affidavit dated 4 June 2025, Mr Zhu attested that he: (a) was obliged, in his capacity as director of another company, to travel overseas to participate in an international trade delegation between 11 and 13 June 2025; (b) was the only person who had sufficient knowledge and authority to provide instructions to the solicitors for Sincerity; (c) was unable to attend the final hearing remotely due to his responsibilities during the delegation; and (d) had realised his English skills were not sufficient to give evidence and be cross-examined in a hearing. 44 The implication of the final point was that Sincerity had not previously notified the Tribunal an interpreter would be required. The final hearing had not been listed to allow time for interpreting, nor had an interpreter been booked to attend. 45 Orders were made relisting the final hearing to commence on 14 August 2025. On the afternoon of 13 August 2025, Sincerity lodged an outline of opening submissions. There were no orders for the lodging of written opening submissions. By that document, Sincerity stated that it no longer disputed the November price increase was invalid and in breach of the contract and nor did it dispute that -- 11 of 26 -- [2025] WASAT 137 (S) Page 12 Ms Catapang had validly terminated the contract. The '[m]atters [s]till [p]ressed' were that the contract was void and unenforceable and, if the contract were held enforceable, Ms Catapang had overstated the damages payable to her. 46 The final hearing took place as scheduled on 14, 18 and 19 August 2025. Reasons for decision were published and final orders made on 3 December 2025. Ms Catapang's application was entirely dismissed on the grounds that the contract was unenforceable by her because the contract had been backdated for the purpose of Ms Catapang making a fraudulent application for government building grants. 47 On 12 December 2025 Sincerity filed correspondence with the Tribunal stating it sought costs in relation to the 2024 and prior proceedings. On 22 December 2025 Ms Catapang filed correspondence with the Tribunal stating she sought costs in relation to the 2024 proceedings. On 14 January 2026 Ms Catapang lodged a minute of proposed orders, which envisaged her application for costs in the prior proceedings. Should there be an extension of time? 48 The Tribunal may dispense with the 21-day time limit for making a costs application pursuant to SAT Rule 46. Alternatively, the Tribunal may extend the time in which to make the application pursuant to SAT Rule 22 and s 92(1) of the SAT Act. The result in this instance is the same. For convenience we will refer to this simply as an extension of time. The parties' submissions Ms Catapang 49 Ms Catapang submits her costs application was delayed because the issues the subject of the prior proceedings were subsumed by the 2024 proceedings and a decision regarding costs in the prior proceedings could not properly be made until the outcome of the 2024 proceedings. She submits there is merit in her application, because Sincerity acted unreasonably in failing to make appropriate concessions and narrow the issues in dispute. 50 Ms Catapang submits her reasons for delay and the merits of her application outweigh the significant delay. She also submits Sincerity will suffer no prejudice as a result of the extension of time, other than -- 12 of 26 -- [2025] WASAT 137 (S) Page 13 that which would have occurred if the application had been lodged in time. Sincerity 51 Sincerity submits that it could not reasonably have brought an application for costs in relation to the prior proceedings until the Tribunal had determined the issues in dispute. It also submits that the work undertaken in relation to the prior proceedings was wasted and it had to 'engage fully again with the applicant's correspondence, arguments, submissions and documents.'16 52 For those reasons Sincerity submits that an extension of time is consistent with the Tribunal's statutory objectives17 to deal with matters fairly and on the substantial merits of the case whilst acting with as little technicality as is practicable. Our decision 53 We are not satisfied either party has established that justice requires an extension of the time limit in which to bring costs applications in the prior proceedings. Our reasons are as follows. 54 Firstly, the delay in applying for costs is significant. We will take the date of the application for costs in the prior proceedings as the dates on which the Tribunal was first notified of the party's intention to make the application.18 On that basis, Ms Catapang's delay is 596 days and Sincerity delayed 563 days. 55 Secondly, the parties' justification for the delay is poor. At the directions hearing on 7 May 2024 both parties were legally represented and the costs implications of a withdrawal of the prior proceedings were discussed. No orders were sought in relation to costs that day. Neither party's solicitors sought an adjournment to obtain instructions. 56 Following the withdrawal of the proceedings, neither party applied for costs until the present application. The parties, with the benefit of legal advice, apparently made a decision to neither seek costs, nor orders that costs be reserved pending the outcome of the then proposed 2024 proceedings. For these reasons we see little justification in reopening the prior proceedings at this late date. 16 Respondent's Submissions as to Costs dated 11 February 2026 (RSC) at para 42. 17 SAT Act, s 9. 18 See paragraph [47]. -- 13 of 26 -- [2025] WASAT 137 (S) Page 14 57 Thirdly, we disagree with Ms Catapang's contention that costs of the prior proceedings were deferred. To do so would have required orders deferring the determination of costs, and (as stated above) no such order was made. 58 Fourthly, it is not clear to us either party had a strong claim for costs. The prior proceedings were terminated at an early stage and there is no record of the parties conducting themselves in a manner which might justify an order for costs. 59 Finally, in our view, the statutory objectives of the Tribunal are not enhanced by the reopening of proceedings for the purpose of a costs application in these circumstances. Costs in the 2024 proceedings The application of Ms Catapang 60 Ms Catapang seeks an award of costs in relation to: (a) the successful application of Sincerity to vacate the June 2025 listing of the final hearing; and (b) Sincerity's late abandonment of parts of its defence. The parties' submissions 61 In relation to the first point, Ms Catapang states Sincerity acted unreasonably in causing the final hearing to be vacated and so caused costs to be wasted. 62 In relation to the second point, Ms Catapang submits that the timely identification by parties of the issues to be disputed or conceded is key to the orderly progression of the litigation process. She states the abandonment of issues on the day before the commencement of the final hearing may have shortened the duration of the final hearing. However, little to no benefit was derived from that concession because all the work in preparation for the hearing had already been performed. Sincerity was legally represented and should have been well placed to have considered the relevant issues in the prior proceedings or early in the 2024 proceedings. 63 Ms Catapang submits the above conduct of Sincerity undermined the Tribunal's objectives of resolving complaints fairly and efficiently. 64 In reply, Sincerity submits: -- 14 of 26 -- [2025] WASAT 137 (S) Page 15 (a) Pleading all available defences is 'orthodox and proper practice' and defences are refined as further evidence becomes available.19 (b) The onus was upon Ms Catapang to prove her allegations, and Sincerity was not obliged to abandon defences to protect Ms Catapang from the consequences of her decision to commence proceedings. (c) The Tribunal did not find Sincerity's application to vacate the final hearing was made in bad faith or as a deliberate delaying tactic. Our decision 65 In our view the conduct of Sincerity undermined the attainment of the Tribunal's statutory objectives and was likely to have caused the wasting of costs. 66 In relation to submission (a), Sincerity has not explained what caused the late change in its response to the claims. We are doubtful of the existence of any late change to the evidence because it is not apparent in the materials lodged with the Tribunal, nor in the evidence adduced at the final hearing. 67 We are satisfied the position of Sincerity was not made clear until 13 August 2025. Although Sincerity did not appear to respond to the claims relating to breach and termination of contract, its SFIC also stated it was not responding 'to matters of submission or evidence'.20 68 In relation to submission (b), Sincerity was not obliged to protect Ms Catapang. But it had an obligation to Ms Catapang and the Tribunal to conduct its claim appropriately and in accordance with the statutory objectives of the Tribunal. 69 Having been ordered to lodge a SFIC, it was inappropriate and in breach of the Tribunal orders for Sincerity to omit relevant issues and contentions, nor was it appropriate to respond to contentions for the first time on the day before the final hearing. The conduct of Sincerity was not in accordance with the orders of the Tribunal, nor was it conducive to a fair and orderly hearing. 19 Respondent's Outline of Responsive Submissions filed 20 March 2026 (RORS) at para 19. 20 See paragraph [39] above. -- 15 of 26 -- [2025] WASAT 137 (S) Page 16 70 In relation to submission (c), such findings were not necessary in order to determine the proceedings. However: (a) it appears the interests of an unrelated company were prioritised over Sincerity's obligations to the Tribunal; and (b) having been involved in legal proceedings (including mediations) for some two years, Mr Zhu should have considered his need for an interpreter earlier. 71 Those interests were pursued in a manner which was very likely to have caused wasted costs for Ms Catapang and the Tribunal. The errors were compounded by an unexplained failure to confer with the solicitors for Ms Catapang prior to lodging the application to vacate the hearing. Sincerity did not act appropriately and in doing so impaired the attainment of the Tribunal's statutory objectives to resolve matters as speedily as practicable and minimising costs to the parties. 72 Nevertheless, we are not satisfied a cost order in favour of Ms Catapang is justified. This is because Ms Catapang commenced the proceedings seeking to enforce the terms of a contract we determined was unenforceable by her due to its connection with her fraudulent intention and conduct. We are not satisfied it is fair and reasonable in the interests of justice to make an award of costs in favour of Ms Catapang in such circumstances. The application of Sincerity 73 Sincerity applied for costs in relation to the whole of the proceedings. The parties' submissions 74 Sincerity submits it is fair and reasonable to make an award of costs in its favour for the reasons which we summarise as follows: (a) The basis of the proceedings was an attempt to enforce a contract which had been backdated for a fraudulent purpose. Therefore Ms Catapang's case was untenable and was doomed to fail. (b) Ms Catapang pursued a fraudulent purpose (being the application for grant monies based upon a backdated contract), urged Sincerity to perform its obligations in a manner which furthered the fraudulent purpose and did not disclose the -- 16 of 26 -- [2025] WASAT 137 (S) Page 17 backdating in the claims lodged with the Building Commissioner. Ms Catapang was legally represented from at least 26 April 2023 and as early as 27 June 2023 Sincerity raised with Ms Catapang the backdating could invalidate the contract. (c) Sincerity made three offers to settle the proceedings, which Ms Catapang did not accept. (d) For Ms Catapang to avoid adverse costs consequences in these circumstances would be contrary to public policy. 75 Ms Catapang opposes this application. Her submissions are summarised as follows: (a) The rejections of the offers of settlement were not, in the circumstances, unreasonable. (b) Unreasonable rejection of a settlement offer would only form a basis for an award of costs only from the date of the rejection of the offer. (c) The discretion to award costs is not punitive in nature but compensatory. Sincerity has not demonstrated how the backdating of the contract or the fraudulent purpose led to the wasting of costs in these proceedings. (d) Sincerity has not demonstrated Ms Catapang undermined the integrity of the Tribunal proceedings. The mere fact that a party is unsuccessful in the case it advanced is not evidence that the party conducted itself in a way that was unreasonable or contrary to the objectives of the Tribunal. Ms Catapang in her evidence was commendably frank. Further, the manner in which the backdating was first raised by Sincerity was 'void of any particularity or depth'.21 (e) Ms Catapang brought her claim in good faith. The Tribunal in the substantive decision did not find Ms Catapang's case was weak, incredible, implausible or obviously unmeritorious. 21 Applicant's Responsive Costs Submissions dated 24 March 2026 at para 74(h). -- 17 of 26 -- [2025] WASAT 137 (S) Page 18 Settlement offers 76 The parties in their submissions refer to three offers of settlement. The submissions of Sincerity failed to engage with the various factors which must be weighed when considering the costs consequences (if any) of a settlement offer. In relation to all three offers, Sincerity simply submits they demonstrate Ms Catapang 'wilfully ignored reasonable opportunities' to resolve the dispute.22 First offer 77 The first offer is contained in a letter from the solicitor for Sincerity dated 27 June 2023 (first offer). The letter is marked 'without prejudice'.23 We do not need to consider if this correspondence is privileged or if SAT Rule 40(1)(b) has the effect of eliminating privilege, because Ms Catapang did not object to the disclosure. 78 Sincerity made the first offer after Ms Catapang had lodged her third complaint with the Building Commissioner, but before that complaint was referred to the Tribunal. The first offer contained the following statements: (a) Ms Catapang may have been in breach of the contract because she did not have title to the property at the time the contract was signed. Further, the backdating of the contract for the purpose of Ms Catapang seeking the building grants could void the contract on public policy grounds. (b) If Sincerity could not 'charge the full amount' and was forced to build the house for the contract sum, it was likely to enter voluntary administration. (c) An offer that if Ms Catapang withdrew her complaints and agreed to a contract price of $467,877, Sincerity would complete construction in two years, not issue any further extensions of time save in the event of a pandemic or major disruption in the supply of materials and pay liquidated damages of $90 per day of delay in practical completion. 79 The first offer appears to comply with SAT Rules 40 and 41. We are not satisfied Rule 42 requires us to take the offer into consideration for the following reasons: 22 Respondent's Submissions as to Costs dated 11 February 2026 (ASC) at para 53. 23 ASC at pages 34 - 35. -- 18 of 26 -- [2025] WASAT 137 (S) Page 19 (a) Sincerity did not explain why accepting the first offer would have resulted in an outcome more favourable to Ms Catapang. (b) No compromise was offered. In fact, the proposed contract price uplifted the allegedly varied contract by a further $43,470.24 80 Nevertheless we have included the first offer in our consideration of the parties' applications. Second offer 81 The second offer is contained in a letter from the solicitor for Sincerity dated 30 July 2025 (second offer). The letter is marked 'without prejudice save as to costs'.25 Sincerity offered to pay Ms Catapang $30,000 within 14 days of a signed 'deed of settlement, bar and release' in exchange for which Ms Catapang would seek the withdrawal and dismissal of the proceedings in the Tribunal. The offer was expressed to be open for 14 days. Sincerity stated an intention to apply for indemnity costs if the offer were not accepted and Ms Catapang was not awarded damages exceeding $30,000. 82 Ms Catapang in her submissions accepts that Sincerity in this correspondence substantially set out its legal position and made an offer which was more favourable to Ms Catapang than the substantive decision. 83 The offer appears to satisfy the requirements of SAT Rules 40 and 41, and therefore the Tribunal is required to take it into account.26 84 Ms Catapang responded to the second offer in correspondence dated 5 August 2025, also marked without prejudice save as to costs (counteroffer). The letter set out at length the basis upon which Ms Catapang believed the contract would not be found unenforceable or void and rejected the offer on the basis it represented an inflated view of Sincerity's prospects of success. The letter also offered compromise in the sum of $150,000 on terms including the execution of a deed, confidentiality and dismissal of the proceedings. 24 The 'original' contract price was $295,400. Sincerity then issued price variations of $56,324 and $72,683, the second of which Ms Catapang opposed. Therefore, if each variation were valid, the total contract price would have been $424,407. See [15], [16], [19] and [23] of the substantive decision. 25 ASC at pages 56 - 58. 26 SAT Rule 42. -- 19 of 26 -- [2025] WASAT 137 (S) Page 20 85 We are not obliged to consider the counteroffer, but will do so on the basis it provides a broader context to Sincerity's offers. Third offer 86 The third offer is contained in a letter from the solicitor for Sincerity dated 7 August 2025 (third offer). The letter is marked 'without prejudice save as to costs'.27 By that correspondence, Sincerity rejected the counteroffer of Ms Catapang and instead offered to pay her the sum of $50,000 on the same terms as the second offer. The third offer was open until 4pm on 13 August 2025, presumably because the final hearing was listed to commence on 14 August 2025. 87 The third offer expresses the view Ms Catapang's letter of 5 August 2025 had failed to properly address the legal issues and that the offer was made on a commercial basis rather than any concern as to its legal position. 88 The parties agree the third offer was rejected by Ms Catapang. 89 We are not obliged to consider this offer because it was not open for a minimum of 14 days as required by SAT Rule 41(2). We have exercised our discretion to nevertheless include this offer in our consideration of Sincerity's application for costs. Our decision 90 In Tribunal proceedings pursuant to the BSCRA Act there is no presumption that a successful party should be compensated for its costs incurred. Any party wishing to be awarded costs must satisfy the Tribunal it is fair and reasonable to do so in all the circumstances. 91 Sincerity makes an application for costs on the basis that its defence was entirely successful, and made two offers of settlement which would have been more favourable to Ms Catapang than the outcome of the final hearing. 92 For the reasons which follow our decision is to dismiss the application. 27 ASC at pages 59 - 60. -- 20 of 26 -- [2025] WASAT 137 (S) Page 21 The nature of an award of costs 93 It is well established that costs awarded by the Tribunal are compensatory and not punitive.28 Therefore costs are not to be awarded as a punishment for the illegality or fraud. The 'punishment' for the illegality was to render unenforceable the contract. 94 The basis upon which costs might be awarded rests upon several considerations.29 In our view the reasons for dismissal of Ms Catapang's claims is a relevant but not determinative factor in a costs application by Sincerity. The nature of the dispute 95 Ms Catapang commenced the prior proceedings because she believed Sincerity had attempted to levy a price increase in breach of the contract and had further breached the contract by refusing to continue construction unless she consented to the price increase. She eventually terminated the contract, believing Sincerity's actions amounted to a repudiation of the contract. It was for that reason the prior proceedings were withdrawn and the 2024 proceedings commenced. 96 After years of dispute, Sincerity eventually conceded that it had breached the contract as alleged, Ms Catapang had validity terminated the contract and thus it was liable (absent the illegality) to pay damages to Ms Catapang. 97 It is to Sincerity's credit that it made that concession, so the final hearing could focus on what transpired to be the key issues. 98 Nevertheless, Sincerity's breach of contract and the pursuance of breach into repudiation was the wrongdoing which caused Ms Catapang's complaints. Forgetting for a moment the issue of fraud, we consider it fair to characterise the proceedings as Ms Catapang attempting to vindicate a clear contractual entitlement.30 The illegality 99 Sincerity submitted that a failure to award Sincerity costs 'would erode confidence in the Tribunal's capacity to uphold lawful and ethical 28 For example, Wright and 3B Build Pty Ltd [2016] WASAT 68 at [68]. 29 See paragraphs [6] - [17]. 30 McLerie and Koleszko at [3]. -- 21 of 26 -- [2025] WASAT 137 (S) Page 22 conduct' and '[p]ublic policy does not permit the costs of responding to fraud to be shifted to an innocent party'.31 100 In these proceedings, Sincerity was not 'responding to fraud'. It was responding to a claim of damages for breach of contract. Further, we are not satisfied the evidence established Sincerity is an 'innocent party'. 101 In the substantive decision we made findings that the contract was backdated and that at the time of signing the contract Ms Catapang knew the backdating was for the purpose of applying for the government building grants which were available in relation to construction contracts executed on or before 31 December 2020.32 We also made findings that Sam Masih executed the contract on behalf of Sincerity.33 102 We did not make findings regarding the extent to which Mr Masih or Sincerity were involved in the backdating.34 Nor did we make a finding that Sincerity was innocent of the fraud. 103 The date of the contract is clearly written, immediately below one of the two places on which Ms Catapang affixed her full signature to the contract. Mr Masih affixed his signature to the following page. It would be very surprising if Mr Masih had not observed the date and known it was not the date on which the contract was actually signed. 104 In general, a principal is presumed to have the knowledge of their agent, and a principal is civilly liable for their agent's fraudulent acts which come within that agent's actual or ostensible authority.35 On the basis of the evidence which was before us in the final hearing, we cannot be satisfied Mr Masih was ignorant of the backdating and the reason for the backdating. 105 Sincerity argued it would be contrary to public policy if it was not awarded costs. We consider it might be equally argued that it would be contrary to public policy and erode public confidence to make an award of costs in favour of either party to a contract tainted by fraud. That may be particularly so in the context of Tribunal proceedings 31 RSC at para 61(k). 32 See the substantive decision at [94]. 33 See the substantive decision at [96]. 34 See the substantive decision at [95], [111] and [127]. 35 GE Dal Pont, Law of Agency (4th edition, 2020) at 22.46 and 22.49. -- 22 of 26 -- [2025] WASAT 137 (S) Page 23 where there is no presumption that a successful party will be awarded costs. Strength or weakness of a party's case 106 Ms Catapang's claims were not obviously unmeritorious or lacking in reasonable foundation. As noted above, her breach of contract claims were strong. Her position regarding the illegality being collateral or peripheral to the contract was not strong, but the field was not inarable. 107 The effects of illegality upon a contract are not straightforward. There were no previous decisions which were directly applicable.36 Determination required a close, careful and detailed consideration of the evidence and a wide range of authorities.37 108 Ms Catapang's position might be compared with that of Sincerity. Sincerity's position regarding the breach of contract claims was presumably very weak, but it had a strong defence on the basis of illegality. The settlement offers 109 The fact that a party made an offer compliant with the SAT Rules and the other party did not achieve a more favourable result at final hearing does not, in and of itself, form a foundation for an award of costs. The Tribunal is simply required to take such an offer into account. 110 With the benefit of hindsight, Ms Catapang's rejection of the second and third offers was imprudent. However, looking at the circumstances as they existed at the time of the offer,38 we are not satisfied the rejection of either offer is fairly to be characterised as unreasonable. 111 Firstly, Ms Catapang was seeking to enforce her contractual rights in the face of Sincerity's flagrant breaches and steadfast refusal to concede any wrong. Ms Catapang was facing increased costs of construction and the potential difficulties of securing another builder to complete construction. 36 Or none to which the Tribunal was referred. 37 Kam Khazaly Pty Ltd and Western Australian Planning Commission at [123]. 38 Wright at [274] - [275]. -- 23 of 26 -- [2025] WASAT 137 (S) Page 24 112 The counteroffer stated Ms Catapang calculated her damages as exceeding $200,000. Ms Catapang has not disclosed the totality of her legal costs. However, Ms Catapang had been legally represented since approximately August 2023, so we imagine her legal costs were not insubstantial. Accordingly, there was a significant difference between the amounts of the second and third offers and Ms Catapang's position. 113 Secondly, the counteroffer indicates Ms Catapang had been advised she had a good chance of enforcing the contract despite the backdating. The third offer did not engage with the detailed rebuttal contained in the counteroffer but simply registered disagreement. Further, we are not prepared to conclude the legal or factual basis of the counteroffer was wrong - rather this was a circumstance in which reasonable minds may differ. 114 Thirdly, in the context of Calderbank offers in court proceedings, the onus is on the party applying for costs to demonstrate clear grounds for finding that rejection was unreasonable.39 It is relevant that the submissions of Sincerity do not explicitly state that rejection was unreasonable, nor explain to us the basis upon which it would say rejection was unreasonable. We infer Sincerity believes rejection of the second and third offers was unreasonable because it considers Ms Catapang's claim was 'untenable and clearly misconceived'.40 As stated above, we do not agree with this characterisation. 115 With reference to the first offer, in hindsight the terms of the first offer might be considered preferable to what eventually occurred. We are not satisfied the rejection was unreasonable because Sincerity was not offering any compromise but instead was seeking to inflate the price well beyond that which was justified under the contract or the relevant legislation. Conduct of the parties 116 Sincerity alleges Ms Catapang conducted the proceedings in a manner contrary to the Tribunal's achievement of its statutory objectives in two ways: (a) the withdrawal of the prior proceedings meant wasted work and costs in responding to those proceedings; and 39 Ford Motor Company of Australia Ltd v Lo Presti [2009] WASCA 115; (2009) 41 WAR 1 at [21] - [22]. 40 RSC at para 55. -- 24 of 26 -- [2025] WASAT 137 (S) Page 25 (b) all three proceedings were without foundation and so misconceived as to be an abuse of process. 117 For the reasons discussed above, we do not consider the second contention to be correct. 118 Regarding the first point, the mere fact of the withdrawal of the prior proceedings does not justify an order as to costs. Therefore, there must be some other factor justifying a costs order. 119 It is not clear to us the institution of the present proceedings, after withdrawal of the prior proceedings, was inconsistent with the objectives of the Tribunal or was an abuse of process. The withdrawals were made on the basis it was expected the prior proceedings would be subsumed by the new complaint. Sincerity did not object to this approach when it was raised in the directions hearing on 7 May 2024. 120 Furthermore, it seems arguable that Ms Catapang's complaints in the prior proceedings may not have entirely encompassed the claim in the 2024 proceedings. The contract was arguably on foot in the prior proceedings but was clearly terminated by the time of the 2024 proceedings. If there had been a material difference, the prior proceedings could not be 'extended' because Tribunal's jurisdiction was restricted to the complaint referred. Lastly 121 For these reasons we are not satisfied Sincerity has established Ms Catapang engaged in conduct during the proceedings which impaired the Tribunal's attainment of its statutory objectives. 122 The same cannot be said in relation to Sincerity. For the reasons set out above,41 we are satisfied Sincerity conducted the proceedings in a manner contrary to the Tribunal's achievement of its statutory objectives. Conclusion 123 For the reasons set out above we are not satisfied: (a) there should be an extension of time (or dispensation with the time limit) in which to make costs applications in the prior proceedings; 41 See paragraphs [65] - [70]. -- 25 of 26 -- [2025] WASAT 137 (S) Page 26 (b) there should be an award of costs in favour of either Ms Catapang or Sincerity in relation to the present proceedings. 124 Accordingly, in our view, no costs orders should be made. Orders 125 Accordingly, the Tribunal orders in all proceedings: The Tribunal orders: 1. The applicant's application for costs is dismissed. 2. The respondent's application for costs is dismissed. I certify that the preceding paragraph(s) comprise the reasons for decision of the State Administrative Tribunal. MS N Oldfield, MEMBER 11 AUGUST 2026 -- 26 of 26 --