IN THE SUPREME COURT OF VICTORIA	Not Restricted	
AT MELBOURNE
Common Law Division
Judicial Review and Appeals List
S ECI 2023 01254

CONCRETE CONSTRUCTION SYSTEMS PTY LTD (ACN 156 347 107)	Applicant	
		
v 		
		
GIUSEPPE INGLESE	First Respondent	
		
And		
		
GWYNNETH INGLESE	Second Respondent	

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JUDGE:	Harris J	
WHERE HELD:	Melbourne	
DATE OF HEARING:	11 April 2024	
DATE OF JUDGMENT:	20 June 2024	
CASE MAY BE CITED AS:	Concrete Construction Systems Pty Ltd v Inglese (No 2)	
MEDIUM NEUTRAL CITATION:	[2024] VSC 335	

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COSTS – Costs of application in Supreme Court for leave to appeal orders of VCAT – Application for orders relating to costs of applications in VCAT – Alternative application for remittal of proceeding to VCAT for making of costs orders – Costs issues already determined by VCAT or reserved, with liberty to apply – Inappropriate to make orders as to costs in VCAT.
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APPEARANCES:
	Counsel	Solicitors	
For the Applicant	Mr J Gurr SC with 
Mr N Andreou	Robert James Lawyers	
			
For the Respondents	Mr B Reid	Lovegrove & Cotton	

HER HONOUR:
Introduction
1	On 24 May 2024, I published reasons for dismissing Concrete Construction Systems Pty Ltd’s applications for:
(a)	an extension of time to seek leave to appeal from order 1 of the orders of Senior Member Kirton made on 9 August 2021 in Victorian Civil and Administrative Appeals Tribunal proceeding BP1513/2017;
(b)	leave to appeal from order 1 of the orders made by Senior Member Farrelly on 14 March 2023 in Victorian Civil and Administrative Appeals Tribunal proceeding BP1513/2017.
2	I also ordered that the parties were to confer on the issue of costs of the proceeding in this Court and, absent agreement, to file submissions on that issue. The parties did not reach agreement and submissions have been filed by the parties. The respondents, the Ingleses, seek an order that their costs of the proceedings in this Court be paid by the applicant Concrete Construction, which is not opposed. The Ingleses also seek orders that Concrete Construction pay their costs of two applications in the Tribunal, which is opposed.
3	I will make the orders sought with respect to the costs of the proceedings in this Court, but I will not make orders relating to the costs of the applications in the Tribunal, for the following reasons. 
The proceeding below
4	The substantive issues in the Tribunal concerned contractual disputes between Concrete Construction, which is a builder, and the Ingleses, who are the developers who engaged them. Concrete Construction claimed damages for the costs of variations and other sums under the building contract. The Ingleses counterclaimed for damages for the costs of alleged defects and liquidated damages for delay. 
5	For the reasons given in Concrete Construction Systems Pty Ltd v Inglese, an order made on 9 August 2021 by Senior Member Kirton pursuant to s 78 of the Victorian Civil and Administrative Tribunal Act 1998 (VCAT Act) (s 78 Order) had the effect of determining, as to liability, both Concrete Construction’s claim and the Ingleses’ counterclaim. Senior Member Kirton ordered that the quantum of the counterclaim was to be assessed and this was the subject of a quantum hearing before Senior Member Farrelly, who on 20 October 2021 ordered that Concrete Constructions pay the Ingleses $1,399,135. Concrete Construction made an application pursuant to s 120 of the VCAT Act to reopen the s 78 Order on the basis that it had not been represented at the hearing. By an order made 14 March 2023 (s 120 Order), Senior Member Farrelly dismissed the application by Concrete Construction under s 120 of the VCAT Act to re-open the s 78 Order. 
Submissions on costs
6	In submissions on costs, the Ingleses sought orders that:
(a)	their costs of and incidental to the applications made by Concrete Construction in the proceeding in this Court, together with their application for costs, be paid by Concrete Construction on the standard basis, to be taxed immediately in default of agreement within 7 days; and
(b)	their costs of and incidental to the s 78 application and the s 120 application in the Tribunal be paid by Concrete Construction, to be taxed immediately on the standard basis in default of agreement within 7 days, or in the alternative, that there be orders remitting the issue of such costs to the Tribunal pursuant to s 148(7) of the VCAT Act.
7	The Ingleses submit that this Court should award costs in respect of the applications in the Tribunal that culminated in the s 78 Order and the s 120 Order for two reasons:
(a)	the remittal of the issue of costs to the Tribunal would cause unnecessary delay; and
(b)	there are no complicating factors or disputed factual matters which may prevent this Court from awarding the costs they seek. 
8	Concrete Construction submits that ‘the sole circumstance in which the Court may have jurisdiction to make an order as to costs in the Tribunal is if a cost order by the Tribunal is the subject of an appeal before it’. The s 78 Orders and s 120 Orders are not orders with respect to costs and, accordingly, this Court lacks jurisdiction to make the costs orders sought by the Ingleses. 
9	Concrete Construction also submits that ‘[e]ven if the Court were to find that it had jurisdiction to make costs orders in respect of the applications to the Tribunal, no such orders should be made as the Tribunal has already made orders dealing with costs and the Respondents have not shown a reason as to why the Tribunal’s orders should be departed from’. Senior Member Kirton made an order that Concrete Construction pay the Ingleses’ costs relating to the s 78 application and Senior Member Farrelly ordered that the costs relating to the s 120 Application be reserved with liberty to apply.
The costs of the proceeding in this Court
10	Absent special circumstances, the successful party in litigation is entitled to an order for costs in their favour.
11	The Ingleses submit that there are no special circumstances that would displace the ordinary rule on costs in this case and seek an order for the costs of the application in this Court. Concrete Construction does not oppose that order.
12	Concrete Construction was unsuccessful in their applications both for an extension of time to seek leave to appeal from the s 78 Order and leave to appeal from the s 120 Order. In determining to refuse leave I found that there was little prospect of success on the proposed appeal of the s 78 Order and no prospect of success on the s 120 Order. 
13	I agree that there are no special circumstances which would displace the usual rule that costs should follow the event, and will make an order that Concrete Construction pay the Ingleses’ costs of and incidental to the applications made by Concrete Construction in this Court.
Costs in the Tribunal
14	This Court has power to make orders as to the costs in Tribunal proceedings, pursuant to the broad powers to make orders in s 148(7) of the VCAT Act, including:
(b)	an order that the Tribunal could have made in the proceeding;
(c)	an order remitting the proceeding to be heard and decided again, either with or without the hearing of further evidence, by the Tribunal in accordance with the directions of the court;
(d)	any other order the court thinks appropriate.
15	Although s 148(7) would empower the making of orders as to costs of proceedings in the Tribunal, the circumstances in which it would be appropriate to do so will be limited. The Court must exercise its power under s 148(7) of the VCAT Act with restraint having regard to the limited nature of the appeal. The need for restraint in the exercise of the power under s 148(7) to make an order for costs in the Tribunal is particularly acute as ‘[q]uestions of costs are often both complex and subjective…’ and the Court on application for leave to appeal is at a disadvantage in determining costs of a hearing before the Tribunal. In this context, Cavanough J has observed that ‘[u]sually, this Court would remit the matter of costs incurred at VCAT to VCAT, to be dealt with as a matter of VCAT’s discretion under s 109 of the VCAT Act’.
16	In the present case, the Tribunal members hearing the relevant matters have already made orders on the issue of costs, either determining an application for costs or reserving the costs. In the orders made on the s 78 Application, Senior Member Kirton made the following order:
Under sections 78(2)(c) and 109(2) of the Victorian Civil and Administrative Tribunal Act 1998, considering it fair, the applicant must pay the respondents costs of and incidental to this application to be taxed by the Victorian Costs Court in default of agreement on the County Court scale on the standard basis.  
17	The submissions for the Ingleses do not address this order. They submit that a Calderbank offer was made by letters dated 26 November 2021 and 5 June 2023, which is relevant to the costs of the Tribunal proceedings; and say that they do not seek a special costs order in this Court, but would do so in the Tribunal. This may be intended to contend that the assessment of costs in this Court would be more straightforward or that Concrete Construction was unreasonable. In my view, the relevance of these offers if any to the costs of the s 78 Application is a matter for Senior Member Kirton, who also gave liberty to apply in her orders. 
18	In his orders of 14 March 2023 on the s 120 Application, Senior Member Farrelly also ordered:
Costs reserved with liberty to apply. I direct the principal registrar to forward any application for costs to Senior Member Farrelly to determine the future conduct of any such application.
19	It would be inappropriate for me to make costs orders of that application, where Senior Member Farrelly has reserved the issue and clearly identified that he will determine the application. Even if, contrary to that view, it would be appropriate for this Court to enter on the issue of costs where it remains reserved to a Tribunal member, I do not accept that there would be any saving of time or any efficiency in this Court making orders. There would be issues of fact to be addressed in considering whether costs orders were appropriate. Section 109(1) of the VCAT Act, in Division 8 dealing with Costs, provides that subject to that Division, each party is to bear their own costs of proceedings in the Tribunal. Section 109(2) provides that the Tribunal may order that a party pay all or a specified part of the costs of another party. Pursuant to s 109(3), that power may be exercised only if satisfied that it is fair to do so having regard to a number of criteria, including:
(a)	whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as—
(i)	failing to comply with an order or direction of the Tribunal without reasonable excuse;
(ii)	failing to comply with this Act, the regulations, the rules or an enabling enactment;
(iii)	asking for an adjournment as a result of (i) or (ii);
(iv)	causing an adjournment;
(v)	attempting to deceive another party or the Tribunal;
(vi)	vexatiously conducting the proceeding;
(b)	whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;
(c)	the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;
(d)	the nature and complexity of the proceeding;
(e)	any other matter the Tribunal considers relevant.
20	Senior Member Farrelly, having heard the s 120 Application, is in the best position to assess all of the above matters. It would be necessary in any event for further submissions to be made on the issues, whether in this Court or in the Tribunal. There would be no efficiency in that occurring in this Court rather than in the Tribunal.
21	Senior Member Farrelly also made orders as to costs in the quantum hearing of September 2021. Order 2 of his orders made 20 October 2021 was:
Costs reserved with liberty to apply.  I direct the principal registrar to refer any application for costs to Senior Member Farrelly whereupon orders will be made as to the future conduct of such application.
22	In these circumstances, it is plainly more efficient, as well as more appropriate, that any applications for costs of the matters before Senior Member Farrelly be determined by him.
23	As the costs of the applications in the Tribunal were expressly reserved in the orders of Senior Member Farrelly, with liberty to apply, there is no need for any order remitting the matter to the Tribunal. As submitted by Concrete Construction, the appropriate course is for the Ingleses to make an application for costs to the Tribunal pursuant to the liberty to apply.
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