VICTORIAN CIVIL AND ADMINISTRATIVE TRIBUNAL
civil DIVISION
building and property LIST	
VCAT Reference: BP125/2019	

CATCHWORDS	
Building and Property List – Costs – Hearing date vacated – Respondent’s pleadings raised the issues of apportionment from alleged concurrent wrongdoers and claims for contribution against joined parties - Inadequate particularisation of documents – Default by respondent in complying with previous orders – Hearing date refixed with new timetable for interlocutory steps – Respondent responsible for additional costs incurred by other parties – Costs orders made against Respondent - s109 Victorian Civil and Administrative Tribunal Act 1998 (Vic).	

APPLICANTs	Owners Corporation 1 Plan No. PS707553K, Andrew Michael Markovics, Robert Charles Barker, Karen Adrienne Barker, Tamara Briggs, Corvette 64 Pty Ltd (ACN 156 004 241), Suzanne Godfrey, Bindy Aviva Cohen, Leon Britbart, Leonard Harold Swidler, Jack Gutman, Tracy Majman	
RESPONDENT	Shangri-La Construction Pty Ltd (ACN 130 534 244)	
SECOND JOINED PARTY:	Nicholson Wright Pty Ltd (ACN 072 393 741)	
THE THIRD JOINED PARTY:	Jim Tsaganis	
THE FOURTH JOINED PARTY:	Integrated Fire Srvices Pty Ltd (ACN 006 017 723)	
THE FIFTH JOINED PARTY:	Paul Verheijden	
THE SEVENTH JOINED PARTY:	Reza Shefaie	
THE NINTH JOINED PARTY:	AGHG Pty Ltd (ACN 603 803 925)	
THE TENTH JOINED PARTY:	Gulnar Sultan	
WHERE HELD	Melbourne	
BEFORE	His Honour Judge Anderson, Vice President	
HEARING TYPE	Hearing	
DATE OF HEARING	21 April 2022 	
DATE OF ORDER	26 April 2022	
CITATION	Owners Corporation 1 Plan No. PS707553K v Shangri-La Construction Pty Ltd (Costs) (Building and Property) [2022] VCAT 451

	

Orders
	
1.	The applicants’ costs of the second and third parties’ summons dated 29 March 2022, including the hearings on 30 March 2022, 13 April 2022 and 21 April 2022 and of preparing their own and perusing the other parties’ written submissions, shall be costs in the cause as between themselves and the respondent;
2.	The respondent must pay the second and third joined parties’ costs of their summons dated 29 March 2022 on a standard basis including:
a.	The hearings on 30 March 2022, 13 April 2022, and 21 April 2022;
b.	Of preparing their own and perusing the other parties’ written submissions, and;
c.	The pre-summons correspondence between its solicitors and the respondent’s solicitors commencing on 3 March 2022,
To be payable forthwith and to be assessed in default of agreement;
3.	The question of whether the fourth and fifth joined parties should be recompensed for the fifth joined party’s attendance at the hearings on 30 March 2022, 13 April 2022, and 21 April 2022 to represent himself and the fourth joined party, is reserved.
4.	The respondent must pay the ninth and tenth joined parties’ costs of the second and third joined parties’ summons dated 29 March 2022 on a standard basis including:
a.	The hearings on 30 March 2022, 12 April 2022 and 21 April 2022;
b.	Of preparing their own and perusing the other parties’ written submissions; and 
c.	Those costs thrown away by reasons of the respondents’ proposed delivery of amended points of claim against them, to be payable forthwith and to be assessed in default of agreement.

His Honour Judge Anderson
Vice President			

APPEARANCES:		
For the Applicants:	Mr N Phillpott, counsel	
For the Respondent:	Mr L Stanistreet, counsel
	
For the Second and Third Joined Parties:	Mr T Sedal, counsel	
For the Fourth and Fifth Joined Parties:	Mr P Verheijden, self-represented	
For the Seventh Joined Party:	No appearance	
For the Ninth and Tenth Joined Parties:	Ms C Lee, solicitor	

REASONS
1.	On 13 April, I delivered reasons for my decision that the hearing date of 16 May 2022 should be re-fixed. This followed a directions hearing on 30 March 2022 and receipt of written submission from the parties.
2.	On 21 April 2022, I re-fixed the hearing for 13 March 2023 and made timetabling orders, all of which were agreed by the parties. I also heard submissions about the issue of costs. I now give my decision on that issue and the reasons for it. 
3.	The following orders were sought:
a.	By the applicants, that “the respondent pay the applicants’ costs thrown away by reason of the adjournment to be assessed in default of agreement”;
b.	By the second and third joined parties, that “the respondent pay the second and third joined parties’ costs of and incidental to its application on 29 March 2022 (including their correspondence of 3 March 2022) payable forthwith, to be assessed in default of agreement”.
c.	By the fourth and fifth joined parties, that the question of any recompense for the fifth joined party’s attendance at the hearings on 30 March 2022, 13 April 2022 and 21 April 2022 to represent himself and the fourth joined party be reserved;
d.	By the ninth and tenth joined parties, that “the respondent pay the ninth and tenth joined parties’ costs thrown away by reason of the adjournment to be assessed in default of agreement”.
4.	The orders which I propose to make are as follows:
a.	The applicants’ costs of the second and third parties’ summons dated 29 March 2022, including the hearings on 30 March 2022, 13 April 2022 and 21 April 2022 and of preparing their own and perusing the other parties’ written submissions, shall be costs in the cause as between themselves and the respondent;
b.	The respondent must pay the second and third joined parties’ costs of their summons dated 29 March 2022 on a standard basis including:
i.	the hearings on 30 March 2022, 13 April 2022, and 21 April 2022;
ii.	of preparing their own and perusing the other parties’ written submissions, and;
iii.	the pre-summons correspondence between its solicitors and the respondent’s solicitors commencing on 3 March 2022,
To be payable forthwith and to be assessed in default of agreement;
c.	the question of whether the fourth and fifth joined parties should be recompensed for the fifth joined party’s attendance at the hearings on 30 March 2022, 13 April 2022 to represent himself and the fourth joined party, is reserved. 
d.	The respondent must pay the ninth and tenth joined parties’ costs of the second and third joined parties’ summons dated 29 March 2022 on a standard basis including:
i.	 the hearings on 30 March 2022, 12 April 2022 and 21 April 2022;
ii.	of preparing their own and perusing the other parties’ written submissions; and 
iii.	those costs thrown away by reasons of the respondents’ proposed delivery of amended points of claim against them, to be payable forthwith and to be assessed in default of agreement
5.	Although the applicants sought an order for the payment of their “costs thrown away by reason of the adjournment”, Mr Phillpott was unable to specify any such costs as might likely arise. I consider that, as between the applicants and the respondent, the costs that have arisen as a result of the adjournment of the hearing date should ultimately be borne by the respondent, but only if the applicants ultimately succeed against it. The respondent should bear its own costs of these matters, whatever the result of the proceeding. 
6.	The costs which have arisen include the costs incidental to the second and third joined parties’ summons dated 29 March 2022, including the three hearings and the written submissions. The applicants were the only parties who wished to proceed with the hearing on 16 May 2022. That date was only vacated because all parties conceded that to allow the respondent to seek to apportion the applicants’ claim and for the respondent to claim contribution from the remaining joined parties with properly particularised documents, a new interlocutory timetable was required. 
7.	Although the applicants might be criticised for breaching a direction for the filing of their witness statements, and because their contingent claims against the second to fifth joined parties had similar deficiencies as the respondent’s claims against those parties, I am not satisfied that those matters caused the hearing date to become unviable. These are, however, matters that I have considered in my decision to make a different order in respect of the applicants than for the second, third, ninth and tenth joined parties. 
8.	I consider that the second and third joined parties should be paid their costs of these hearings, the written submissions and their solicitors’ correspondence. If the respondent’s solicitors had taken heed of the matters raised in the correspondence from the second and third joined parties’ solicitors, it is likely that the summons and the resulting costs could have been avoided. 
9.	Respondent’s counsel, Mr Stanistreet submitted that, if the second and third parties had been represented at the hearing at VCAT on 9 December 2021, or their solicitors had been engaged earlier than in February 2022, the unviability of the hearing date of 16 May 2022 would have been obvious much earlier. 
10.	This submission, however, ignores the following matters:
a.	The hearing date of 16 May 2022 was fixed at a hearing at VCAT on 13 April 2021;
b.	The respondent defaulted in its responsibilities under that order requiring further hearings before VCAT on 7 July 2021, 26 October 2021 and 9 December 2021;
c.	The Tribunal in the order dated 7 July 2021 specifically noted the respondent’s failure, despite previous orders on 8 October 2020 and 9 March 2021, to file any application to join further parties;
d.	The lack of particularly of the respondent’s previous defence and claims was referred to in the orders of 26 October 2021 which provided that, when those documents were filed and served they must contain “full particulars”;
e.	When the second and third joined parties’ solicitors pointed out in their correspondence the deficiencies in the respondent’s documents and the consequential difficulty with maintaining the 16 May 2022 hearing date, these matters were not addressed by the respondent’s solicitors.
11.	The ninth and tenth joined parties are not alleged by the respondent to be concurrent wrongdoers. A claim for contribution is made against them by the respondent. Only one claim by the applicants against the respondent has been specifically alleged by the respondent as entitling it to contribution from the ninth and tenth joined parties. Those parties have incurred significant costs as a result of the hearing date being vacated. They bear no responsibility for that becoming necessary. They should be compensated for the additional costs by the respondent. 
12.	In making these costs orders, I have been governed and guided by the provisions of s109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic).

His Honour Judge Anderson
Vice President