VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
CIVIL CLAIMS LIST                               	      VCAT REFERENCE NO. C5850/2019
CATCHWORDS	
Costs – cross applications for costs - whether presumption against order for costs is displaced – whether fair to order costs – whether indemnity costs should be ordered – sections 109 and 112-114 of the Victorian Civil and Administrative Tribunal Act 1998.	

APPLICANT 	Sophie Than (ABN: 25 616 458 505)	
RESPONDENT 	Brightest Australia Pty Ltd (ACN: 140 926 101) trading as Elegant Media	
WHERE HELD	In Chambers	
BEFORE	N Campbell, Member	
HEARING TYPE	Costs application on the papers	
DATE OF ORDER	12 October 2021	
date of written reasons	12 October 2021	
CITATION	Than v Brightest Australia Pty Ltd (Costs) (Civil Claims) [2021] VCAT 1182	

Order
The Tribunal orders that:
1	Pursuant to section 112 of the Victorian Civil and Administrative Tribunal Act 1998 Sophie Than must pay Brightest Australia Pty Ltd ACN 160 238 335 trading as Elegant Media costs of the proceeding from 28 October 2020 with the costs to be assessed by the Costs Court, in default of agreement, on a standard basis on the County Court Scale of Costs.
2	The stay in Order 2 of the orders made on 9 August 2021 is extended until further order. 
3	The proceeding is to be listed for an administrative mention on 25 March 2022, by which time the parties shall advise the Tribunal in writing of the progress of the costs assessment or agreement as to costs. There is no need for the parties to attend a hearing on that date.
4	Liberty to apply to the parties to finalise any necessary set off order after the costs assessment by the Costs Court or agreement as to the quantum of costs. 

N Campbell
Member			

APPEARANCES:		
For Applicant	By written submissions 	
For Respondent	By written submissions 	

Reasons
The proceeding
1	Ms Sophie Than (“the Applicant” or “Ms Than”) and Brightest Australia Pty Ltd trading as Elegant Media (“the Respondent” or “Elegant Media”) each seek orders, pursuant to the orders made in Than v Brightest Australia Pty Ltd (Civil Claims) [2021] VCAT 881 (the reasons in the claim), for their costs in the proceeding to be paid by the opposing party pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act). Elegant Media also relies on section 112 of the VCAT Act.
Background
2	On 7 August 2019, Ms Than lodged a claim in the Tribunal against Elegant Media for $67,995.63 in damages for breach of contract and compensation for breaches of the ACL. The contract between Ms Than and Elegant Media was for the development and maintenance of an application for mobile devices.
3	Elegant Media filed points of defence on 4 September 2020.
4	The matter was heard by me over eight days, being 9 to 12 November 2020, 17 to 19 March 2021 and 18 June 2021. 
5	On 9 August 2021, I made orders and gave written reasons in the proceeding. The orders made on 9 August 2021 were as follows:
The Tribunal orders that:
1.	Brightest Australia Pty Ltd ACN 160 238 335 must pay Sophie Than the sum of $18,830.58.
2.	Order 1 is stayed until further order. 
3.	Any application for costs under section 109 of the Victorian Civil and Administrative Tribunal Act 1998 must be made in writing to the Tribunal within 21 days of the date of this order, as follows: 
(a)	The applying party must set out in full the submissions of the party on costs and the submissions must be served on the other party at the time of filing with the Tribunal.
(b)	The responding party shall within 14 days of receiving the costs’ application, file with the Tribunal and serve on the other party any submissions on costs.
(c)	The Tribunal intends to make any decision regarding costs on the papers. 
4.	If no application for costs is made to the Tribunal pursuant to order 3 within 21 days of the date of this order, the Tribunal directs the principal registrar to refer the file to Member Campbell for the lifting of the stay order.

6	Pursuant to Order 3 of the orders made on 9 August 2021, Elegant Media filed an application for costs with accompanying written submissions in support dated 30 August 2020. Ms Than filed an application for costs and written submissions in support dated 29 August 2021.
7	The parties each filed reply submissions on costs. 
The law in relation to VCAT ordering costs 
8	The power for VCAT to award the costs of a party to a proceeding is contained in s109 and s112 of the VCAT Act. Section 109 relevantly provides:
Power to award costs
(1)	Subject to this Division, each party is to bear their own costs in the proceeding.
(2)	At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.
(3)	The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to—
(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.
(4)	If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.
(5)	Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.
(6)	If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.
(7)	A power of the Tribunal under this section is exercisable by any member.
9	Guidance as to the application of section 109 of the VCAT Act is provided in the decision of Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [20-23], which states:
20	In approaching the question of any application for costs pursuant to s.109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows –
(i)	The prima facie rule is that each party should bear their own costs of the proceeding.
(ii)	The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.
(iii)	In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s.109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.
...
22	Whilst it is appropriate for the Tribunal to consider each of the specified matters in s.109(3) and express a view as to the weight that should be attached to the particular matters relied upon, in the end it is important that the Tribunal consider all the matters together and determine whether it is fair to make an order for costs. When dealt with in isolation, each of the matters may lead to the conclusion that it is not fair to make an order for costs, but when taken together, the Tribunal may be satisfied that it is fair to do so. It is the totality of all relevant matters under s.109(3) that must be considered in the context of the prima facie rule.
23	Some of the matters specified in s.109(3) provide guidance to the Tribunal as to what orders should be made. For example, findings based on s.109(3)(a) and (b) would lead to an order being made against the party guilty of the conduct identified. Section 109(3)(c) provides some guidance in that if the party makes a claim that has no tenable basis in fact or law, then that party should pay costs. On the other hand, s.109(3)(d) does not provide any guidance as to how a finding in relation to the nature and complexity of the proceeding should result in an order for costs. In this sense the paragraph is neutral, and in considering and having regard to the nature and complexity of a proceeding, the Tribunal may in all the circumstances conclude that a costs order should be made, or it may conclude that by reason of the nature and complexity of the proceeding no costs order should be made. But it must be steadily borne in mind that whatever findings may be made, having considered the matters set out in s.109(3), an order can only be made if the Tribunal is "satisfied that it is fair to do so".
10	The decision of this Tribunal in Princess Chloe Pty Ltd v Ballaveau Pty Ltd (Costs) (No2) (Civil Claims) [2020] VCAT 106 at [13] states as follows:
Section 109(3)(a) of the VCAT Act sets out six examples of conduct that may create unnecessary disadvantage for a party. That list of examples is not exhaustive. Further, the tests to be applied in relation to the factors set out in s 109(3)(a) of the VCAT Act are twofold. I must consider both whether there was unreasonable conduct and, if so, whether … (the innocent party)… was “unnecessarily disadvantaged” by that unreasonable conduct. [footnotes omitted] 
11	In relation to costs and offers of settlement, sections 112 to 114 of the VCAT Act provide as follows:
Presumption of order for costs if settlement offer is rejected
112 (1)	This section applies if—
(a)	a party to a proceeding (other than a proceeding for review of a decision) gives another party an offer in writing to settle the proceeding; and
(b)	the other party does not accept the offer within the time the offer is open; and
(c)	 the offer complies with sections 113 and 114; and
(d)	in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.
(2)	If this section applies and unless the Tribunal orders otherwise, a party who made an offer referred to in subsection (1)(a) is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made.
(3)	In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal—
(a)	must take into account any costs it would have ordered on the date the offer was made; and
(b)	must disregard any interest or costs it ordered in respect of any period after the date the offer was received.

Provisions regarding settlement offers
113 	(1)	An offer may be made—
(a)		with prejudice, meaning that any party may refer to the offer, or to any terms of the offer, at any time during the proceeding; or
(b)	without prejudice, meaning that the Tribunal is not able to be told of the making of the offer until after it has made its orders in respect of the matters in dispute in the proceeding (other than orders in respect of costs).
(2)	If an offer does not specify whether it is made with or without prejudice, it is to be treated as if it had been made without prejudice.
(3)	A party may serve more than one offer.
(4)	If an offer provides for the payment of money, the offer must specify when that money is to be paid.
Provisions concerning the acceptance of settlement offers
114 (1)	An offer must be open for acceptance until immediately before the Tribunal makes its orders on the matters in dispute, or until the expiry of a specified period after the offer is made, whichever is the shorter period.
(2)	The minimum period that can be specified is 14 days.
(3)	An offer cannot be withdrawn while it is open for acceptance without the permission of the Tribunal.
(4)	In deciding whether to give permission, the Tribunal may examine the offer, even if it was made without prejudice.
(5)	 If the offer was made without prejudice, a member of the tribunal who examines it for the purposes of subsection (4) can take no further part in the proceeding after determining whether or not to give permission.
(6)	A party can only accept an offer by giving the party who made it a signed notice of acceptance.
(7)	A party may accept an offer even though it has made a counter-offer.
12	Section 111 of the VCAT Act provides that if the Tribunal makes a costs order, the Tribunal may fix the amount of costs or may order that the costs be assessed, settled, taxed or reviewed by the Costs Court.
Consideration
13	The Tribunal will deal firstly with Elegant Media’s costs application under section 112 of the VCAT Act. Elegant Media seeks a costs order on the basis that Ms Than failed to accept an offer of settlement which was more favourable than the order made by the Tribunal. I will then deal with Ms Than’s and Elegant Media’s applications for costs under section 109 of the VCAT Act.
Application under section 112
14	Section 112 of the VCAT Act provides circumstances where a failure to accept an offer of settlement by a party can displace the presumption against an order for costs contained in section 109(1) of the VCAT, with a presumption in favour of an order for costs. For the presumption against costs to be displaced all the requirements in subsection 112(1) of the VCAT Act must be met.
15	Elegant Media relies upon a written offer to Ms Than to settle the proceeding for the payment by Elegant Media to Ms Than of the amount of $25,000. The offer was contained in a letter dated 28 October 2020 (the 28 October 2020 offer). Elegant Media also relies upon Ms Than’s written rejection of this offer by email dated 28 October 2020. Ms Than accepts in her written submissions that the 28 October 2020 offer was made by Elegant Media and rejected. Ms Than criticises Elegant Media for not offering to resolve the matter at an earlier stage of the proceeding.
16	I find that the 28 October 2020 offer was from one party in the proceeding to another. Ms Than did not accept the offer within the time the offer was open. The offer was open for a period of 14 days. The offer specified when the settlement sum offered would be paid. The 28 October 2020 offer therefore complied with the requirements of section 112(1) (a) to (c). 
17	Subsection 112(1) (d) of the VCAT Act requires that the orders made by the Tribunal in the proceeding must be not more favourable to the other party than the relevant offer. Subsection 112(3) of the VCAT Act requires that when determining whether orders are not more favourable to a party than an offer, the Tribunal must take into account any costs it would have ordered on the date the offer was made. 
18	The costs incurred by Ms Than to the date the offer was made were for the preparation of Points of Claim and consultation fees in the amount of $2,945.69, legal advice in the amount of $590.00, VCAT filing fee in the amount of $487.30. The other amounts claimed by Ms Than in her written submissions were incurred before the proceeding was commenced, being the Consultation and Letter of Demand, after the offer was made, being the transcript fees, or for an expert report which the Tribunal found was not relevant to the issues in dispute. These costs could not have been awarded at the date of the offer.
19	Ms Than has also claimed as ‘costs’ the damages and compensation which she was unsuccessful in recovering in the substantive proceeding. These amounts are not legal costs and those claims have been dismissed by the Tribunal.

20	Therefore, on the date the 28 October 2020 offer was made to Ms Than, the highest amount of costs which could have been ordered in Ms Than’s favour was $4,022.99. Elegant Media was ordered to pay Ms Than the amount of $18,830.58. The amount ordered and the amount which could have been awarded in costs at the date of the 28 October 2020 offer was a total amount of $22,853.57. I therefore find that the amount ordered by the Tribunal, taking into account any amount which could have been recovered for costs at the date of the 28 October 2020 offer, was not more favourable to Ms Than than the amount of the 28 October 2020 offer. 
21	In those circumstances, I find that the presumption against an order for costs is replaced by a presumption of an order for costs in favour of Elegant Media.
22	Despite the presumption in favour of an order for costs, the Tribunal retains a discretion as to whether an order for costs should be made. I have considered in particular that Ms Than was self-represented and has no legal or business training. I have also considered that this was a commercial dispute between two parties in a business setting and the unrealistic expectations which Ms Than appeared to have for the potential outcome of the proceeding. 
23	Overall, I am satisfied that pursuant to section 112 an order should be made for Ms Than to pay Elegant Media’s costs on a standard basis from the date of the offer, being 28 October 2020. I am not satisfied that the order for costs should be on an indemnity basis under section 112.
24	As I have reached this conclusion, I do not need to consider each parties’ application for costs under section 109. However, in case I am wrong regarding the section 112 application, I have decided to consider these matters.
Applicant under section 109
25	Ms Than and Elegant Media each applied for an order for costs their favour. I will deal with each submission made by the parties regarding the factors referred to in subsection 109(3) of the VCAT Act. It is noted that Ms Than’s submissions have largely not engaged with the relevant factors in subsection 109(3). Ms Than’s principal submission as to Elegant Media’s claim for costs under section 109 appears to be that Elegant Media had its legal fees covered by insurance. 
Whether either party conducted the proceeding in a way that unnecessarily disadvantaged the other party
26	Elegant Media submits that Ms Than conducted the proceeding in a manner which unnecessarily disadvantaged Elegant Media. It is alleged that Ms Than failed to properly articulate her points of claim despite four opportunities, which it is said left Elegant Media guessing as to Ms Than’s case. Ms Than’s submissions do not respond to this submission. 
27	Ms Than’s submissions refer to Elegant Media making application to the Tribunal to add two respondents and then withdrawing this application and seeking an adjournment which results in orders for a new procedural timeframe for Elegant Media in the Orders made on 14 October 2020. Ms Than did not make submissions as to how these actions were unreasonable and caused Ms Than unnecessary disadvantage. I accept these actions may have caused some delay in the progress of the matter.
28	I find that Ms Than has taken a ‘scatter-gun’ approach to the claims she made in the proceeding. She relied upon a range of causes of action, all but one of which failed at the hearing. A mere failure to succeed does not cause the making of the claim to be unreasonable. Ms Than was unrepresented at the hearing, although she does claim that at least at some stage, she incurred legal costs for the purpose of drawing points of claim. I accept the variety of claims made and the quantum of the claim would have encouraged Elegant Media to incur legal costs which may not have otherwise been necessary.
29	I am satisfied that, even taking into account Ms Than being unrepresented and inexperienced in law and business, her ‘scatter-gun’ approach to her claims was unreasonable and unnecessarily disadvantaged Elegant Media.
Whether Ms Than or Respondent unreasonably prolonged the proceeding
30	Elegant Media argues that Ms Than was responsible for unreasonably prolonging the time taken to complete the proceeding. Elegant Media submits that the entirety of Ms Than’s expert evidence and most of the cross-examination of Elegant Media’s witnesses was wholly ‘irreferable’ to her Amended Points of Claim. Elegant Media submits that the cross-examination appeared to be designed to merely embarrass Elegant Media, particularly its CEO. It argued that the proceeding could have been completed at least one day earlier if not for Ms Than’s conduct.
31	Ms Than’s submissions have not engaged with Elegant Media’s argument.  Ms Than’s submission refers to Elegant Media failing to engage in genuine efforts to settle the proceeding, failing to respond to Ms Than’s offer to settle, and only making offers 14 and 12 days before the hearing. In light of the outcome of the proceeding and the offers of settlement I now have before me, Ms Than is unable to show that she engaged in genuine efforts to settle the proceeding, as her only offer was more than five times greater than the outcome she achieved from the Tribunal. 
32	It is difficult for an unrepresented party to conduct their own matter, particularly in a complex and long running hearing. I am not satisfied that Ms Than’s aim in cross-examination was to embarrass Elegant Media or its CEO. I find that Ms Than was trying to advance her case in the evidence she called and the cross-examination of witnesses. The case would have likely been much shorter if Ms Than was legally represented. I am not satisfied that such a finding is sufficient to conclude that an unrepresented party should be found to have unreasonably prolonged a proceeding, when they do not have the skills or knowledge to operate as efficiently as lawyers may. I am not satisfied that Ms Than unreasonably prolonged the hearing by her calling of irrelevant evidence and the lengthy cross-examination of Elegant Media’s witnesses.
Relative strengths of the claims made by each party 
33	Elegant Media submits that Ms Than made various claims which had no tenable basis in fact or law, including the Unfair Terms Claim, the Guarantee Representation Claim, the Contract Claim based on cl8 of the Service Terms and the IP Claims. Elegant Media also submits that the heads of damage claimed were almost entirely misconceived and Ms Than failed on all but one head.
34	Ms Than again in her submissions has not engaged with Elegant Media’s submissions.
35	Ms Than had one potentially strong claim and a couple of weaker but arguable claims. A considerable amount of time was spent on claims and remedies which were misconceived. For example, Ms Than’s claim for the costs incurred for the failed development of the app prior to any involvement of Elegant Media was entirely misconceived. There was no logical basis upon which Elegant Media could be responsible for these costs, let alone legally responsible. Similarly, Ms Than’s view that Elegant Media should be responsible for the provision of a free app.
36	While Ms Than did succeed in recovering $18,830.58, in the context of having previously been offered $25,000 as a settlement, any claims likely to have led to recovery of more than $25,000 were very weak.
The nature and complexity of the proceeding 
37	Elegant Media submitted that Ms Than’s advancement of untenable claims had unnecessarily added to the complexity of the proceeding. Elegant Media argues that the complexity was out of the ordinary for the Civil Claims list of VCAT and that the claim could have been limited to the Time Guarantee Claim and the Contract Claim. Elegant Media submits that it faced at least 23 separate claims in the proceeding and at least six heads of damage. It is submitted that the breadth of issues raised by Ms Than is a factor supporting an order for costs.
38	Ms Than’s submissions do not engage with these submissions by Elegant Media. 
39	I accept that the proceeding was legally and factually complex. I accept that this complexity would have encouraged Elegant Media to engage lawyers for the purpose of the proceeding. 
Any other matters the Tribunal considers relevant
40	Elegant Media submits that a further matter for the Tribunal to consider under section 109 of the VCAT is the Calderbank offers made by Elegant Media to settle the matter. Elegant Media argues that if the 28 October 2020 offer does not meet the requirements of section 112, this offer and the earlier written offer of settlement of $20,000 made on 26 October 2020 (the 26 October 2020 offer) should be given weight when determining whether it is fair to make an order for costs against Ms Than.
41	I am satisfied that an offer to settle made by a party to another party is a relevant matter in determining whether it is fair to make an order for costs. In this case the 26 October 2020 offer was slightly more than the amount which Ms Than obtained orders for from the Tribunal. It was less than the amount Ms Than obtained orders for plus any potentially recoverable legal costs. The 28 October 2020 offer was greater than the amount Ms Than obtained orders for and also greater than the amount Ms Than obtained orders for plus any potentially recoverable costs. 
42	I consider the circumstances of these offers and the ultimate outcome of the litigation support an order for costs being made in favour of Elegant Media.
43	Elegant Media submits that it has clean hands in terms of its conduct of the proceeding. It argues that it exhausted all efforts to avoid the hearing entirely and pursued the Tribunal’s invitation to settle the proceeding on the first day of hearing.
44	Ms Than argues that Elegant Media did not respond to Ms Than’s letter of demand dated 16 April 2019. This offer was for more than Ms Than achieved in the proceeding, so does not assist Ms Than. Ms Than seeks to rely upon matters occurring in the compulsory conference of this matter on 18 February 2020, in [7-9] of Ms Than’s costs submissions, and without prejudice discussions on the first day of the hearing, in [18-19] of Ms Than’s costs submissions. I have not taken into account [7-9] of Ms Than’s written submissions, as the matters occurring in compulsory conferences in VCAT are privileged from production in the hearing of a matter at VCAT including on the question of costs, see section 85 VCAT Act. I have also not taken into account [18-19] of the Ms Than written submissions regarding the without prejudice discussions on the first day of hearing.
45	Ms Than relied upon an email to Elegant Media dated 16 October 2020 in which Ms Than offered to settle the proceeding for $104,846.53.  Ms Than obtained an order for $18,830.58. Ms Than’s offer does not assist her argument for an order for costs in her favour.
46	Ms Than noted that the 26 October 2020 offer and the 28 October 2020 offer, were for less than the amount she had paid Elegant Media and the amounts she had incurred in the conduct of the proceeding to that time (including the cost of the expert report, which the Tribunal found to be wholly irrelevant to the matters in issue). 
47	Ms Than also argues that the proceedings had been on foot for 14 months by the time the final hearing commenced and the two offers by Elegant Media were made 12 and 14 days prior to the first day of hearing. 
48	After excluding from my consideration the material from the compulsory conference and without prejudice discussions, I am left with only Ms Than’s offer made on 16 October 2020 and Elegant Media’s 26 October 2020 offer and 28 October 2020 offer, as the only evidence of attempts to settle the proceeding. All of these offers were at a late stage of the proceeding. While the Tribunal would encourage resolution of a proceeding at any time, Elegant Media’s argument that it comes with clean hands would have more force if the offers to settle had been made at a much earlier stage of the proceeding. It is often the case that as a proceeding progresses, the parties incur greater costs and their resolve hardens.  I have given Elegant Media’s offers appropriate weight elsewhere and I am not satisfied that these offers establish a basis for finding Elegant Media did all it could at the earliest possible time to resolve the matter.
49	While not raised directly, a further matter I have considered is the nature of the dispute itself. 
50	I find that the nature of the dispute was between two commercial parties who entered into the contract on a commercial or business basis. This was not a domestic consumer dispute. The correspondence which has now been provided to me indicates that the parties in their ‘without prejudice save for costs’ negotiations were aware of the costs issues in this matter.  Although Ms Than was inexperienced in law and business, she was engaged in the development of an app which she no doubt hoped would develop into a successful business. I find that the nature of the dispute was between litigants involved in a commercial dispute. This weighs in favour of an order for costs.  
51	Ms Than has raised the issues that Elegant Media is not paying its own costs, as they were covered by insurance and Elegant Media could have settled as far back as when they received Ms Than letter of demand dated 16 April 2019. Ms Than’s costs submissions also seek to re-litigate issues determined in the substantive matter. She is not able to re-open these matters. The recovery of some or all costs incurred from an insurer is not a basis for refusing a party’s application for costs. I will take into account the timing of offers in deciding the relevant period of any costs order for a costs order which may be made.
52	Ms Than has also raised the conduct of the proceeding by Elegant Media, including filing an application to join two further respondents and then withdrawing the application, seeking an adjournment which required an extension of time for Elegant Media to file further material and filing an application to seek to dismiss the proceeding five days before the final hearing commenced. I have taken these matters into account.
Conclusion as to whether it is fair and reasonable to make an order for costs
53	There are some matters which would support no departure from the usual position of there being no order for costs, such as Ms Than attempted to progress the hearing as best she could as an unrepresented litigant, Ms Than, having at least one strong claim and succeeding on that claim, offers of settlement that were only made at a late stage of the proceedings and that Ms Than and Elegant Media each succeeded on some matters.  
54	Other matters weigh in favour of an order for costs against Ms Than, including the complexity of the dispute causing Elegant Media to engage lawyers, the relative strengths of the claims in excess of the amount of the 28 October 2020 offer, Ms Than’s scattergun approach to the claims made and her unrealistic expectations of the outcome if she succeeded, the nature of the dispute being essentially commercial - not a consumer dispute and Elegant Media’s offers of settlement which were not accepted by Ms Than and which she failed to exceed at the hearing. 
55	There are a few matters which support an order for costs in Ms Than’s favour, including the two incidents where Elegant Media’s conduct caused procedural delay and additional work for Ms Than to pursue her claim.
56	Having considered the totality of all relevant matters under section 109(3) of the VCAT Act, I am satisfied that, if I had not made an order under section 112 of the VCAT Act, it would have been fair to make an order under section 109 for costs in favour of Elegant Media from 28 October 2020. The 28 October 2020 date is appropriate due to it being the date of the 28 October 2020 offer.
57	I am not satisfied that it would have been fair to make an order for costs on an indemnity basis. 
Conclusion
58	As I have reached the same conclusion as to costs under 109 and 112 of the VCAT Act, I will order pursuant to section 112 of the VCAT Act that Sophie Than must pay Brightest Australia Pty Ltd ACN 160 238 335 its costs of the proceeding from 28 October 2020, with the costs to be assessed by the Costs Court, in default of agreement, on a standard basis on the County Court Scale of Costs. Each party must otherwise bear their own costs of the proceeding. In relation Order 2 of the orders made on 9 August 2020, I will extend this stay order and the parties should return to the Tribunal for a set off order following the costs assessment or an agreement as to costs. 

N Campbell 
Member