VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
CIVIL DIVISION
BUILDING AND PROPERTY LIST	
vcat reference No. BP935/2022	
CATCHWORDS	
Dispute between co-owners of real estate  – section 233(1) of the Property Law Act 1958 –applicants’ claim for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998.	

FIRST APPLICANT	Peter William Gribbin	
SECOND APPLICANT	Kim Michelle Bramwell	
RESPONDENT	Tanya Gaye Bramwell	
WHERE HELD	Melbourne	
BEFORE	Deputy President I Lulham	
HEARING TYPE	Hearing	
DATE OF HEARING	24 February 2025	
DATE OF ORDER	4 March 2025	
CITATION	Gribbin v Bramwell (Building and Property) [2025] VCAT 195	

Order
1	The sum of $374,517.08, which is held by the parties’ conveyancer as the balance of the proceeds of sale of the property at 10 Rochester Street Braybrook shall be distributed as follows:
(a)	First, by paying the first applicant $182,395.90
(b)	Secondly, by paying the second applicant $170,724.55
(c)	Thirdly, by paying the respondent $21,396.63.
2	The conveyancer is authorised to release the funds referred to in paragraph 1, in the manner set out in that paragraph.

I Lulham
Deputy President			

APPEARANCES:		
For Applicants	Mr L Hogan of Counsel	
For Respondent	No appearance	

Reasons
The calculation
1	I begin these Reasons by setting out how the amounts set out in this Order were calculated:
(a)	On 28 June 2024, the net settlement proceeds of the sale of the property at 10 Rochester Street Braybrook, held by the parties’ conveyancer, was $685,954.08;
(b)	Since 28 June 2024 and pursuant to an Order of the Tribunal made that day, $311,437.00 has been paid out to the parties, leaving the balance on 24 February 2025 of $374,517.08. Apart from $11,437.00 which was paid to the first applicant as reimbursement of outgoings that he had paid, each of the parties received an interim distribution of $100,000.00;
(c)	For the Reasons that follow the Tribunal finds that out of that $374,517.08, the first applicant must be paid $6,616.53 and the second applicant must be paid $1,809.00. That will take the balance for distribution down to a pool of $366,091.55. As the three parties are tenants in common in equal shares, if they were each paid one-third of that pool, each would receive $122,030.51. As the pool is not divisible by 3, I consider it best for the respondent’s share to be $122,030.51 and each applicant’s share to be $122,030.52.
(d)	For the Reasons that follow the Tribunal finds that the respondent must also pay from her share of $122,030.51:
(i)	the first applicant two other amounts, of $1,863.85 and $5,000.00, a total of $6,835.85;
(ii)	both applicants, an amount equivalent to rent of $47,200.00, which is equal to each applicant being paid $23,600.00; and
(iii)	both applicants’ costs of this proceeding, assessed on a standard basis under the County Court Scale, at $46,570.06, which is equal to each applicant being paid costs of $23,285.03.
(e)	It follows from (c) and (d) that the $374,517.08 shall be distributed as follows:
(i)	First, by paying the first applicant  $182,395.90 [calculated as $6,616.53 + $122,030.52 + $6,863.85 + $23,600.00 + $23,285.00 = $182,395.90]
(ii)	Secondly, by paying the second applicant $170,724.55 [calculated as $1,809.00 + $122,030.52 + $23,600.00 + $23,285.03 = $170,724.55]
(iii)	Thirdly, by paying the respondent $21,396.63 [calculated as $122,030.51 - $6,863.85 - $47,200.00 - $46,570.63 = $23,396.63].
The proceeding
2	The respondent did not appear at the hearing on 24 February 2025, and did not file any material pursuant to the directions made by the Tribunal. In the hearing on 24 February 2025 the applicants were represented by Counsel, and his instructing solicitor Mr Skeels and the two applicants were present.
3	I heard the submissions made on behalf of the applicants, and in respect of which an outline dated 18 February 2025 had been filed along with a draft of the orders sought by the applicants.
4	I also read affidavits filed by each of the applicants during the proceeding, and their written witness statements which had been filed under paragraph 6 of the Order made 28 June 2024. The first applicant gave evidence orally under oath, and verified the truth of his witness statement and adopted its contents. The second applicant gave evidence orally under affirmation, and verified the truth of her witness statement and adopted its contents. Mr Skeels, legal practitioner for the applicants, had made a written witness statement dated 14 August 2024 mainly directed to the respondent’s conduct and omissions during the proceeding, and the applicants’ claim for legal costs in the proceeding. Attached to Mr Skeels’ statement was an assessment by a costs consultant under the County Court Scale. Mr Skeels made a further witness statement on 4 February 2025 in which he set out the updated assessment of the applicants’ costs. In the hearing Mr Skeels gave evidence on oath in which he verified the truth of those witness statements and adopted their contents, adding only for clarification the express statement that the assessment of the applicants’ costs was made on a standard basis under the County Court Scale.
5	I accept the uncontradicted evidence of the applicants and of Mr Skeels. Accordingly, I find as facts the following matters:
(a)	The two applicants and the respondent were the beneficiaries under the Will of Shirley Gribbin deceased, who died on 7 August 2019. Under that Will, the deceased left the residential property at 10 Rochester Street Braybrook to the three parties as tenants-in-common in equal shares.
(b)	The respondent occupied the property from at least 7 August 2019, without paying any rent.
(c)	The applicants issued this proceeding on 1 July 2022 seeking orders that the property be sold and the proceeds of sale be divided in accordance with the parties’ respective interests in the property, or alternatively in such proportions as the Tribunal considered just and equitable having regard to the respondent’s rent-free occupation of the property since 7 August 2019.
(d)	The VCAT documents were served on the respondent, but the respondent took no action in the proceeding. She did not appear at directions hearings, and did not file any documents required by the directions made in those hearings.
(e)	The case was heard on 13 July 2023, in the absence of the respondent, and the Tribunal made Orders to bring about the sale of the property with vacant possession, and – under paragraph 15 – for the Tribunal to determine how the proceeds would be divided between the parties. The Order reserved the applicants’ costs.
(f)	The respondent did not comply with the Order made 13 July 2023, necessitating the applicants issuing a warrant of possession. The respondent lived in the property between at least 7 August 2019 and 14 February 2024, when that warrant was executed.
(g)	The respondent excluded the applicants from occupation of the property during that period between 7 August 2019 and 14 February 2024. The respondent did not pay any rent, despite herself obtaining payments of rent from her two children. The respondent failed to look after the property and allowed it to become significantly damaged.
(h)	Settlement of the sale of the property occurred on 21 June 2024. The net proceeds of sale held by the conveyancer, at 28 June 2024, was $685,954.08. A directions hearing was held on 28 June 2024, at which the applicants were represented by their legal practitioner Mr Skeels, and the respondent appeared in person. The Tribunal ordered, in paragraphs 1 and 2 of its Order dated 28 June 2024, that the conveyancer was authorised to release $100,000.00 to each of the parties plus $11,437.00 to the first applicant as reimbursement of outgoings which he had paid up to 26 April 2023.
(i)	The conveyancer released those payments, and at 24 February 2025 the conveyancer was holding $374,517.08 in trust pending the determination of this proceeding.
(j)	In recital B to the Order made 28 June 2024 the Tribunal noted that the remaining matters for determination in the proceeding related to distribution of the proceeds of sale, and that issues for consideration included the applicants’ claim for rent; the applicants’ claim for damages of $20,000.00 which was described in the Order as being a claim for diminution of value to the property because of the respondent’s conduct; and the applicants’ claim for legal costs.
(k)	In paragraphs 3 – 7 of the Order made 28 June 2024 the Tribunal ordered the applicants to file and serve an affidavit setting out any amounts paid by them for outgoings such as rates, insurance and water since 26 April 2023; the respondent to notify the Tribunal and the applicants in writing if she objected to the reimbursement of the further outgoings from the net proceeds of sale of the property; for the applicants to file and serve witness statements and the respondent to file and serve a witness statement in reply; and for the parties to attend a full day mediation. In paragraph 12 the Tribunal also listed this proceeding for hearing on 24 February 2025.
(l)	The applicants filed and served the documents required of them by the Order made 28 June 2024. The respondent did not notify the Tribunal or the applicants of any objection to the reimbursement of the further outgoings. The respondent did not appear at the mediation.
(m)	On the basis of paragraph 3 of the affidavit of the second applicant sworn 6 July 2024, I find that the first applicant is entitled to be paid a further $6,616.53 as reimbursement of outgoings, after taking into account the $11,437.00 that was paid to him by the conveyancer under the Order made 28 June 2024. The calculation of the outgoings of $6,616.43 included water rates, but excluded water usage charges of $1,863.05. Paragraph 5(o) below contains my finding in respect of water usage charges.
(n)	On the basis of paragraphs 4 and 8 of the affidavit of the second applicant sworn 6 July 2024, I find that the second applicant is entitled to be paid $1,000.00 as reimbursement of the retainer that she paid to the conveyancer on behalf of the parties, and $809.00 as reimbursement of the amount that she paid to hire a skip to assist in the removal of the respondent’s disposable chattels from the property.
(o)	On the basis of paragraphs 2 and 9 of the affidavit of the second applicant sworn 6 July 2024, I find that the first applicant is entitled to be paid $1,863.05 as reimbursement of the water usage charge which the first applicant paid and which solely benefitted the respondent as she was in exclusive possession of the property; and as repayment of a loan of $5,000.00 which the first applicant advanced to the respondent to assist her in her vacation of the property, which loan was repayable on demand.
6	In order to do justice between the parties, I find that:
(i)	the sums of $6,616.43 and $1,809.00 referred to above should be paid to the first applicant and the second applicant respectively from the balance currently held by the conveyancer of $374,517.08; and
(ii)	the sum of $6,863.85 referred to above should be paid to the first applicant from the respondent’s share of the net proceeds.
7	As I said above, recital B of the Order of 28 June 2024 noted that issues for determination included certain matters. It did not exhaustively list the issues. In their documents filed and served under that Order, the applicants made a claim for rent. By serving their documents the applicants put the respondent on notice of that claim. The respondent did not notify the applicants or the Tribunal that the claim was opposed. The respondent did not submit any evidence on that claim, such as an opinion from a valuer or estate agent as to the market rent that could have been charged by the owners of the property.
8	I find that the respondent is obliged to pay rent in respect of her exclusive occupation of the property, to the exclusion of the applicants, between 7 August 2019 and 14 February 2024. The duration of that occupation is approximately 236 weeks. As the parties were owners of the property as tenants-in-common in equal shares, each of them was entitled to one-third of the rent which was payable by the respondent for that occupation. On the basis of paragraph 9 of the witness statement of the second applicant dated 26 April 2023, and the letter from Barry Plant Real Estate dated 3 February 2023 which is attached to that statement and also alluded to in paragraph 11 of her affidavit sworn 14 August 2024, I find that rent of $300.00 per week could have been obtained for the property from an arm’s length tenant had the property not been occupied by the respondent. Arithmetically, 236 weeks x $300.00 per week would amount to $70,800.00, and if that sum was divided equally between the three parties, each would receive $23,600.00.
9	Section 233(1) of the Property Law Act 1958 (Vic) empowers the Tribunal to order that compensation or reimbursement be paid or made by a co-owner to other co-owners, and also that an adjustment be made to a co-owner’s interest in land to take account of amounts payable by co-owners to each other during the period of co-ownership. Section 233(3) provides that the Tribunal must not make an order requiring a co-owner who has occupied property to pay an amount equivalent to rent to other co-owners who did not occupy the property unless the co-owner claiming an amount equivalent to rent has been excluded from occupation of the property or that co-owner has suffered a detriment because it was not practicable for that co-owner to occupy the land with the co-owner who was in possession.
10	I am satisfied, and I find as a fact that, the respondent excluded the applicants from occupation of the property for the entire period of 236 weeks, and also that the applicants suffered a detriment because it was not practicable for either of them to occupy the property with the respondent. I find that it is appropriate to order that the respondent pay an amount equivalent to rent to the applicants. I find that the amount to be paid to each applicant is one-third of $70,800.00, being $23,600.00. The total, payable to the two applicants, is $47,200.00. That respects the respondent’s entitlement to the other third of the rent.
11	I note that in the alternative the applicants claimed an adjustment of the division of the proceeds of sale under section 228(1) of the Property Law Act 1958 (Vic), on the basis that the respondent has engaged in delay disruption and obstruction in respect of the property since 2019. The applicants’ submission, supported by the events set out without contradiction in the applicants’ witness statements and affidavits, was that an adjustment by which each applicant’s interest in the total net proceeds of $685,954.08 – which for the purposes of that calculation would involve the Tribunal “adding back” the $311,437.00 paid out to the parties pursuant to paragraphs 1 and 2 of the Order made 28 June 2024 – would largely achieve the same outcome. However, as I am satisfied that it is appropriate to make an order that the respondent pay an amount equivalent to rent, I need not explore this alternative claim any further.
12	Turning now to the applicants’ claim for costs, I note that the claim is made under section 109 of the Victorian Civil and Administrative Tribunal Act 1998. It is not made on the basis that the applicants made a formal offer of settlement under section 112 or that the applicants had made a Calderbank offer which was relevant given the outcome of the proceeding. That said, I find as a fact that the applicants, through their legal practitioners, had written to the respondent on 30 January 2023, in terms which explained to the respondent the basis of the applicants’ claim, enabled the respondent to cooperate in the prompt resolution of the parties’ dispute, and put the respondent on notice – in the last few paragraphs of that letter – that the applicants would seek their costs of the proceeding if the respondent continued to fail to respond or cooperate in the proceeding.
13	The quantum of the costs sought by the applicants is set out in the witness statement of Mr Skeels dated 14 August 2024, which sets out the respondent’s acts and omissions in the proceeding and exhibited a certificate of assessment of costs given by Castra Legal Costing on 13 August 2024 with an itemised statement of disbursements including Castra’s invoice for its services; and a supplementary witness statement dated 4 February 2025 which included an updated assessment of the costs by Ms Antonella Terranova of Castra Legal Costing. The Castra assessments say that they are made under the County Court Scale, and Mr Skells stated on oath that the assessments were made on a standard basis under the County Court Scale. Castra’s certificate of assessment of costs dated 4 February 2025 was $39,178.16 including GST, and I accept it as the best evidence available of the applicants’ recoverable costs. Once again, the applicants had served the Castra assessments on the respondent, and the respondent had not filed any material in opposition. The disbursements including Counsel’s fee for the hearing on 24 February 2025 was $5,857.41 and the two invoices of Castra, for its assessments were $1,210.00 and $324.50 respectively, both including GST. I am satisfied that all of the disbursements totalling $5,857.41 are properly claimable by the applicants on a standard basis, as apart from Counsel’s fee – which I find has been claimed at an appropriate rate – all of the disbursements are in the nature of Tribunal and Court filing fees, and fees paid to obtain a copy Certificate of Title of the property and to serve documents on the respondent. As reflected in the two amounts invoiced by Castra for its fees, the first is for the thorough assessment of the costs, and the second is for the smaller task of reviewing and updating the assessment. The total of these amounts is $46,570.07.
14	Costs do not follow the event in VCAT litigation. Section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 empowers the Tribunal to order a party to pay costs of another party. Section 109(3) provides that the Tribunal may only do so if it is satisfied that it is fair to do so having regard to criteria set out in subsections 109(3)(a) – (e).
15	I have concluded that it is fair to order the respondent to pay the applicants’ costs, having regard to these criteria under section 109(3):
(a)	Section 109(3)(d): the claim asserted by the applicants against the respondent was sufficiently complex to warrant them engaging legal practitioners. It could not sensibly be argued that the claim was so small or simple that the applicants “should have” represented themselves. The applicants’ claim relied on property legislation and a consideration of the parties’ family history.
(b)	Section 109(3)(a)(i): the respondent failed to comply with Orders of the Tribunal, as set out in the Reasons for the Order of 8 October 2024, and did not even seek to state any excuse or reason she may have had for those failures. In the absence of any explanation from the respondent, I conclude that the failures were without reasonable excuse. The slow progress in this litigation resulting from the respondent’s inactivity, obstruction in the sense of withholding cooperation, and failures to comply with the Tribunal’s Orders, has unnecessarily disadvantaged the applicants, particularly when it is seen that the applicants were compelled to engage legal practitioners to prepare for and appear at various hearings, which the applicants could only have assumed would be contested hearings, only to find that the respondent did not even appear on the day.
(c)	Section 109(3)(b): this overlaps with s109(3)(a)(i). I am satisfied that the respondent has been responsible for prolonging unreasonably the time taken to complete the proceeding.
(d)	Section 109(3)(c): the relative strengths of the positions of the applicants and the respondent respectively clearly lie with the former.
(e)	Section 109(3)(e): the letter of 30 January 2023 from the applicants’ legal practitioners to the respondent, which I have described above. The letter was sent around 6 months before the hearing on 13 July 2023. The practitioners noted the respondent’s refusal to respond to any communications about the proceeding, and advised that the applicants intended to pursue their claim to fruition whether or not the respondent cooperated. They wrote that it would save all parties time expense and upset if the respondent was to engage in the proceeding and assist in the orderly sale of the property. The practitioners summarised the outcome which the applicants sought to achieve, and invited the respondent to suggest any alternative proposals. The practitioners concluded by noting that an application for costs could be made. Whilst not expressly mentioning section 109, the practitioners did not suggest to the respondent that costs would follow the event, but rather drew her attention to the Tribunal having a discretion to order costs where, for example, a party fails to comply with Orders and causes costs to be incurred unnecessarily as a result of their conduct. The respondent did not reply to the letter.
16	Because the applicants obtained the assessment of their standard costs, under the County Court Scale, from a costs consultant and put the respondent on notice of the assessment, and because the respondent did not expressly oppose the awarding of costs or present any material challenging Castra’s assessment, I accept that assessment. I also find that the disbursements claimed by the applicants have been incurred, and further that the two invoices for Castra’s assessment are fair and reasonable and that they fall within the amount of costs which are properly to be awarded to the applicants in this proceeding. It follows that I will order the respondent to pay the applicants’ costs fixed at $46,570.07. Although in practice that amount will be paid directly to the applicants’ legal practitioners, as a matter of crafting the Order, one half of that sum will be payable to each applicant and so it is necessary to round that amount down to $46,570.06.
17	I began these Reasons by setting out the calculation of the sums which I ordered to be paid. The sums are all dealt with in the above Reasons.

I Lulham
Deputy President