VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
OWNERS CORPORATIONS LIST	VCAT REFERENCE NO. OC1543/2021

CATCHWORDS	
Fixing amount of costs payable by one party to another pursuant to section 111(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

APPLICANT	James Xenidis	
RESPONDENT	Owners Corporation Plan PS318104	
WHERE HELD	Melbourne	
BEFORE	L Warren, Deputy President	
HEARING TYPE	Costs application on the papers	
DATE OF ORDER	19 June 2023	
CITATION	Xenidis v Owners Corporation Plan PS318104 (Costs) [No 2] (Owners Corporations) [2023] VCAT 696	

Order
1	Pursuant to section 111(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) I fix the amount of costs now payable by the Applicant to the Respondent in relation to the hearing on 26 July 2021 in the sum of $650.00.

L Warren 
Deputy President			

Reasons
1	By orders made on 6 October 2022 the Tribunal dismissed the Applicant’s application for costs and granted the Respondent’s application for costs.
2	The Tribunal ordered that the Applicant is to pay the Respondent’s costs for the hearing on 26 July 2021 with the amount of such costs to be fixed by the Tribunal pursuant to section 111(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).
3	The parties were permitted by 21 October 2022 to make written submissions of no more than one A4 page in length setting out the party’s submission as to the appropriate amount of costs to be ordered to be paid by the Applicant.
4	The Respondent filed written submissions on 31 October 2022. 
5	The Applicant’s submissions are dated 11 November 2022.
The Respondent’s Submission
6	The Respondent submitted that the costs to be paid by the Applicant should be calculated on the County Court Scale of Costs, which for a hearing per day or part of a day is $1,184.08.
The Applicant’s Submission
7	The Applicant submitted that the Respondent would have spent “no more than one hour” in attendance at the Tribunal for the hearing on 26 July 2021. 
8	In the alternative, the Applicant submitted that if “the Tribunal is minded to award costs” then any such costs should be based on the County Court Scale of Costs, which the Applicant notes is based on an amount of 80% of the costs set out in Appendix A of the Supreme Court Scale of Costs. In the absence of any order to the contrary, the default scale of costs applied in Tribunal proceedings is the County Court Scale of Costs.  
9	The Applicant refers to Item 1(a)(ii) of Appendix A, which reads as follows:
(a) 	Attendances requiring legal skill or knowledge by a legal practitioner—
(ii) 	where a legal practitioner attends the Supreme Court for the purposes of instructing (including conferences with counsel or others on the day of the hearing before or after the Supreme Court sits) per hour or part thereof; 									$425.00

10	It is submitted that 80% of $425.00 is $340.00, and that the Tribunal should award this sum in favour of the Respondent.
Discussion
11	Item 1(a)(ii) of Appendix A relates to a solicitor attending court to instruct counsel. On 26 July 2021 Mr Cohen appeared before the Tribunal as counsel representing the Respondent. He did not attend for the purpose of instructing counsel.
12	I am not satisfied that the sum of $340.00 as submitted by the Applicant is the appropriate amount of costs to award taking into account that Mr Cohen appeared at the Tribunal on 26 July 2021 as counsel and not as instructing solicitor.
13	The Respondent has submitted that the appropriate amount of costs to award under the County Court Scale of Costs is $1,184.08, however in its written submissions has not identified the source of that figure (other than to submit it is 80% of $1,480.10 allowable under the Supreme Court Scale of Costs).
14	Based on my experience as a solicitor prior to my appointment as a Member of the Tribunal and based on my 20 plus years’ experience as a Tribunal Member, I do not accept that $1,184.08 is the appropriate amount of costs to award in favour of the Respondent.
15	Based on my experience as a solicitor and Member, it is reasonable to assume that upon receiving the Notice of Hearing from the Tribunal on 26 July 2021 of the injunction application listed for hearing that afternoon that Mr Cohen would have spent time consulting with his client, receiving instructions and preparing for the injunction hearing and then appearing on behalf of his client at the hearing.
16	The total amount of time spent by Mr Cohen in relation to this matter on 26 July 2021 without question would have in my experience exceeded the one hour as submitted by the Applicant.
17	As a result of the hearing on 26 July 2021 having been adjourned to the following day, not all of the legal work undertaken by Mr Cohen on behalf of the Respondent on 26 July 2021 would have been “wasted”.
18	Taking into account the duration of the hearing on 26 July 2021, and based on my experience as both a solicitor and as a Member, after taking into account the nature of and seriousness of the application being made to the Tribunal and the urgency with which the application was listed for hearing (the urgency having arisen by the request for an urgent hearing from the Applicant’s solicitor), I am of the view that the appropriate amount of costs to be paid by the Applicant to the Respondent pursuant to the orders made on 6 October 2022 is the sum of $650.00.
19	Accordingly, pursuant to section 111(a) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) I fix the amount of costs now payable by the Applicant to the Respondent in relation to the hearing on 26 July 2021 in the sum of $650.00.

L Warren
Deputy President