3 The respondent must pay 55% of the applicant's costs of this proceeding including the counterclaim, all reserved costs and the costs of mediation to be taxed in default of agreement in accordance with County Court Scale `D'.

4 The Tribunal certifies for counsel in relation to the preparation of pleadings, affidavits, witness statements, witness submissions and reasonable preparation.

Mr John Arthur of Counsel, instructed by RB Legal Pty Ltd

Mr Ragu Appudurai of Counsel, instructed by Comito & Co, Solicitors.

1 On 27 April 2004 I published what were intended to be final reasons in this proceeding the hearing of which commenced 12 August 2002 and concluded on 18 March 2004. Since the proceeding included a claim and counterclaim with elaborate clause for relief and since my reasons did not entail the unqualified acceptance of the case made by either side, I directed the parties to bring me short minutes to give effect to my reasons. I adjourned the matter for further hearing on 18 May to pronounce further orders and hear arguments on costs. That hearing date was postponed by agreement of the parties until 8 June 2004.

2 The issues between the parties are fully explained in my principal reasons. For present purposes it is sufficient to note that Kameel Pty Ltd (`Kameel'), the landlord of a medical clinic including a number of consulting rooms, one of which was leased to the applicant A.K. Freund Pty Ltd (`Freund'), alleged that by reason of wrongful acts and omissions by Freund it had lost rent on the other five consulting rooms in the clinic complex and on an adjacent pharmacy. I concluded in my reasons that the counterclaim should fail in toto excluding for a variety of reasons, each of the alleged acts and omissions of Freund which were said to be wrongful and causative of damage to Kameel. One of the allegations was that Freund prevented Millennium Management Pty Ltd (`Millennium'), a company associated with Professor Geoffrey Edelstein from taking up its tenancy of the other five consulting rooms in the clinic for a period of months by preventing Millennium from having access to the reception desk for the medical centre. I rejected this limb of the counterclaim because I accepted submissions by Mr Arthur, counsel for Freund, that in the events that have occurred:

(b) That by reason of Section 28(2) of the Landlord and Tenant Act 1958 property in the reception desk was vested in Freund; therefore

(c) Freund was entitled to exclude both Kameel and Millennium from use of the reception desk.

Freund said that the medical centre rules which were incorporated in its lease and which the landlord Kameel agreed by that lease to incorporate in the leases of any other consulting rooms in the centre, required the tenants of three other rooms to reimburse Freund a one-sixth share of Freund's costs in fitting out the premises. Freund took the position, until it withdrew its objection to use of the desk by Millennium by a statement in the Tribunal on 14 August through its counsel, that Millennium should not be allowed to use the desk until it paid its share, at least of the cost of the desk, being five-sixths of the cost of the desk, viz. $7,500.

3 When the matter came before me again on 8 June, Mr Appudurai noted that Section 28 of the Landlord and Tenant Act had been raised by the applicant for the first time in its counsel's submissions in reply late on the afternoon of the final day of the hearing. He had supported his reliance on the sub-section by reference to a decision of the Court of Appeal which had been handed down only a few weeks before Vopak Terminals Australia v Commissioner of State Revenue [2004] VSCA 10 where Ormiston JA conducted an exhaustive historical analysis of the sub-section. Mr Appudurai noted that since the argument in this proceeding and the publication of my determination, a further decision of the Court of Appeal had been handed down in Commissioner of State Revenue v Uniqema Pty Ltd [2004] VSCA 82 (published 18 May 2004). That second decision, according to Mr Appudurai on behalf of Kameel, highlighted a phrase in Section 28(2) which in his submission excluded its operation in the present fact situation. He submitted therefore that I should re-open my determination upon this basis.

4 Mr Arthur, counsel for Freund, which according to my reasons had had a complete success in having the counterclaim against it dismissed, submitted that it was not now competent to re-open the reasons which I had given. The sole remedy if the point raised by Mr Appudurai was a good one, was to raise it on appeal.

5 I ruled that I would hear the point which Mr Appudurai sought to raise. I noted that since no final orders had been authenticated the Tribunal was not functus officio. I referred to the decision of Gillard J in Re XL Petroleum Pty Ltd [1971] VicRp 67; [1971] VR 560. To enable counsel for Freund, Mr Arthur to prepare his response I adjourned the matter to 23 June.

6 Upon the matter being called on 23 June, Mr Arthur renewed his submission, though he did not entertain the application to re-argue part of the case. He relied upon the decision of the High Court of Australia in Auto Desk Incorporated v Dyason (No. 2) [1993] HCA 6; (1993) 176 CLR 300, 303 per Mason CJ and the decision of Finkelstein J in Community and Public Sector Union v Telstra Corporation Ltd [2000] FCA 872; (2000) 101 FCR 45.

7 It is an extreme step to allow a proceeding or part of one to be re-argued after final reasons have been published. Had I included final orders with the reasons which I published in April, it is clear that the only remedy would, if Kameel's point is a good one, be an appeal to the Supreme Court. It would be intolerable if the convenient course of publishing reasons and directing that short minutes be brought in to give effect to those reasons were to be regarded as an invitation to the losing party or parties to re-argue the points on which they had lost. Nevertheless, the authorities relied upon by Mr Arthur as I read them, do not state an absolute rule that a court or tribunal cannot leave open its determination when no final orders have been authenticated. These cases leave open the possibility in exceptional circumstances that it may be proper to reopen the determination. It cannot be said that in any absolute sense Kameel has been deprived of an opportunity to be heard on the application of Section 28(2) of the Landlord and Tenant Act 1958. The matter was raised by counsel for Freund late on the last afternoon of the hearing in submissions in reply. Mr Appudurai candidly says that he failed to read the lengthy and complex sub-section with sufficient care on that day to enable him to raise the question which he now raises. A phrase in the sub-section to which he refers is given some prominence in a decision of the Court of Appeal referred to above published after the final argument in this proceeding and after I published my own determination. In my view it is in the interests of Justice that I deal with this discrete and short point. The point is a short one; nevertheless, it has the potential, if accepted, to yield a substantial success to Kameel upon its counterclaim if I find that Freund's admitted assertion of the right to exclude Millennium from use of the reception desk until the statement in open hearing on 14 August 2002 was:

(b) prevented Millennium from taking up its tenancy, thereby causing a loss of rent from Millennium and prolonging the period for which the adjacent pharmacy was on half rent.

8 I set out the text of Section 28(2) at paragraph 81 of my principal reasons. For clarity and ease of reference I set it out again:

(2) If any tenant holding lands by virtue of any lease or agreement executed or made after the twenty-fourth day of September One thousand nine hundred and seven at his own cost and expense erects any building either detached or otherwise or erects or puts in any building fence engine machinery or fixtures for any purpose whatever (which are not erected or put in in pursuance of some obligation in that behalf) then, unless there is a provision to the contrary in the lease or agreement constituting the tenancy, all such buildings fences engines machinery or fixtures shall be the property of the tenant and shall be removable by him during his tenancy or during such further period of possession by him as he holds the premises but not afterwards; notwithstanding the same consist of separate buildings or that the same or any part thereof may be built in or permanently fixed to the soil; so as the tenant making any such removal does not in anywise injure the land or buildings belonging to the landlord or otherwise puts the same in like plight and condition or in as good plight and condition as the same were in before the erection of anything so removed. (emphasis added)

9 Mr Appudurai's submission is that the general effect of the section, namely to reserve to a tenant who erects fixtures on leased premises on its own expense, is excluded in two circumstances. First, `where there is a provision to the contrary in the lease or agreement constituting the tenancy' - a matter which I considered in my principal reasons and excluded and secondly, where the underlined words are applicable with the effect that the tenant does not retain title to the goods if they are `erected or put in in pursuance of some obligation in that behalf'. At paragraph 85 of my principal reasons having referred to a special condition in Freund's lease of its consulting suite I observed `the desk was erected on that site by [Freund] in performance of its obligations under the lease'. Mr Appudurai submits that this finding which flowed inevitably from Special Condition 1 of the lease which is quoted at paragraph 83 of my principal reasons was sufficient to invoke the second exclusionary provision in Section 28(2) of the Landlord and Tenant Act. The effect he said was that the sub-section did not preserve title in favour of Freund. Therefore, he submitted in so far as I concluded that Freund was entitled to exclude Millennium from use of the desk by virtue of its ownership reserved by Section 28(2) my conclusion was incorrect.

It is submitted that the words within the brackets do not apply to exclude the operation of S.28(2) to the facts of this case. What the section applies to are fixtures put in by a tenant at his own cost and expense.

This is satisfied in the present case. There is no doubt that our client was to put the best in at its cost. Although it was obliged to do this, it was not a simple obligation to do so but on the basis that it be repaid the cost by the landlord and by later tenants. So the `obligation' was to put in items at its own cost and be reimbursed for the cost in full as provided. Therefore the obligation to put in subject to reimbursement by others was not an obligation to put in at his cost.

The tenant did put in at his cost so that the section applies but not in pursuance to an obligation in that behalf and the obligation was to put in at its cost and to be reimbursed.

11 I am unable to accept Mr Arthur's submission on this point. The Special Condition in the Freund lease provides for reimbursement to Freund of one-sixth of the cost upon completion. The right to reimbursement from further tenants comes from the rules. If Millennium is under such an obligation it derives from the fact that the rules have been inserted in Millennium's leases. The Freund lease stood alone when the fit-out took place and provided for only a one-sixth reimbursement by the landlord. Moreover, according to the very words of the special condition the fit-out was to be `at its [that is Freund's] expense'. In my view, it is a quite proper use of language as the draftsman of the lease has employed it, to say that someone who outlays money to pay for something does that thing `at his own expense', even although he is given a right of reimbursement. The distinction between doing something at somebody else's expense and doing it at one's own expense subject to a right of reimbursement is painfully obvious in the present dispute. Freund has yet to be reimbursed by either Kameel or Millennium. In my view the interpretation urged for the sub-section by Mr Appudurai is the more natural and obvious one.

12 The effect then is that whilst Freund might be a creditor of Kameel and Millennium for the cost of the fit-out in general and of the reception desk in particular, it has no proprietary right or lien which has been identified and which can be sustained to justify it excluding Millennium from use of the reception desk as part of the common property. It acted wrongly in asserting such a right and to the extent that the assertion of that right prevented Millennium from using this part of the common property, Freund was acting wrongfully.

13 Mr Arthur urged me to revisit the findings which I had made in my principal reasons that the reception desk was a fixture. He referred me to passages from Halsbury's Laws of Australia. I regard it as inappropriate to reopen that finding. First, because I do not believe the special circumstances which attend the proper meaning of Section 28(2) of the Landlord and Tenant Act and the circumstances in which that matter was argued exist with regard to the finding as to fixtures. Secondly, because in finding that the desk was a fixture and affected by Section 28(2) of the Landlord and Tenant Act I was accepting a submission by Mr Arthur himself and thirdly, because in any event, I am not persuaded that the finding which I made is incorrect despite the additional material placed before me.

14 Professor Edelstein complained that we were not allowed to even go behind the desk' (T/S 470B ll 14-15). How then does this fit in with the counterclaim as formulated? I described the way the counterclaim is pleaded in paragraph 55 of my principal reasons. First, in paragraph 9(a) of the second further amended counterclaim Kameel says it `suffered loss of rent by reason of Freund's actions in preventing access by Millennium to the medical centre ...'. It also alleged that Freund breached a term referred to in paragraph 4(e) of the further amended points of defence which asserted that the rules attached to the lease obliged Freund `not to take any steps whatsoever to hinder the occupation of the premises in the remaining consulting rooms, in accordance with Rules, by other tenants'.

15 Mr Arthur submitted that Freund's position taken with regard to the reception desk could not establish the pleaded cause of action unless it rendered it wholly impossible for Millennium to take up its tenancy. This, said Mr Arthur, was the proper meaning of the verb `to prevent'. Mr Arthur said that Kameel and/or Millennium could simply have forced the issue by installing a Millennium receptionist at the reception desk or could have used some alternate arrangements to operate in the premises from a temporary reception desk.

16 I admit that the matters alleged do not create an absolute impossibility for Millennium to take up its tenancy. This however takes too narrow a view of the counterclaim. The essence of this counterclaim is that Millennium was put off becoming a tenant for months. In that context I believe `prevent' has a much wider meaning than Mr Arthur allows. It extends to my mind to actions which would deter an ordinary tenant or potential tenant in Millennium's position. The reception desk is the focal point of the clinic or medical centre. It is the gateway for patients. No ordinary tenant or potential tenant would wish to go on with a tenancy where it was deprived of the use of the reception desk. Mr Arthur cross-examined Professor Edelstein on this point, putting it to him that Millennium could have established a temporary reception desk. The Professor said this would have been impractical. A temporary reception desk would not have had access to telephone lines and computer connections. Of course one has to accept that the establishment for instance of a separate and temporary reception desk would not have been impossible. Anything is possible if the necessity is great enough. For instance, a Millennium receptionist could have set himself or herself up at a card table without access to telephone, electricity or computer links using a manual typewriter and an old fashioned card index system. A mobile phone could have been used for communications - but is this realistic or is any variant of it realistic? There was according to orthodox rules an obligation on Kameel to mitigate its damage if it claimed to be suffering damage by reason of a breach of contract by Freund. Millennium was in no such position. As against Freund it owed no obligation to mitigate its damage, it could consult its own interests and a reasonable tenant would not wish to take up multiple tenancies in a medical centre without access to the reception desk.

17 In addition, Mr Arthur's submission fails to take account of the second limb of Kameel's counterclaim, viz. the allegation that Freund should not take any steps whatsoever to hinder the occupation of the premises by further tenants. Excluding a tenant to the other five consulting rooms from the use of the reception desk or even asserting a right to do so, would to my mind constitute `hindering' that tenant.

18 Logically I must now consider whether on the evidence it is established that the position taken by Freund with regard to the reception desk caused Kameel to lose rent as alleged in the counterclaim. Mr Appudurai submitted I should conclude it did. Mr Arthur submitted that there was no loss of rent caused by Freund's stand as to the reception desk.

19 My principal reasons demonstrate that we are dealing here with a fraught triangular relationship between three strong personalities and their companies. The facts are complex. What Millennium did and did not do and when it did it is obviously very largely influenced, apart from purely external factors such as Freund's position on the reception desk, by the motivation, plans and objectives of its principal, Professor Edelstein. What he and his company were seeking to achieve and what he and his company objected to or accepted in the relevant period is central to the question I now have to determine.

20 It is appropriate if I turn first to some general principles as to the operation of causation in law. Causation in law is said ultimately to be an application of common sense. March v E. & N. H. Stramare Pty Ltd [1991] HCA 12; (1991) 171 CLR 506. The `but for' test is frequently taken as a starting point. This test is that the second event is caused by the first event if the second event would not have occurred `but for' the first one. The High Court in March v Stramare rejected this as an all inclusive test of causation, deciding instead to say that causation is ultimately a matter of common sense. Mason CJ said:

... the "but for" test, applied as a negative criterion of causation, has an important role to play in the resolution of the question.

[1991] HCA 12; (1991) 171 CLR 506, 515-6

If the damage would have occurred notwithstanding the negligent act or omission, the act or omission is not a cause of the damage and there is no legal liability for it. [1991] HCA 12; (1991) 171 CLR 506, 530

All this however is subject to the overall application of a commonsense test. To conclude for legal purposes that one event caused the other it is not necessary to be satisfied that the alleged cause or event is the sole cause or even the predominant cause of the second event. It is sufficient that the first event is a cause of the second event Medlin v The State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1. In conformity with these principles the appropriate question to ask is `would Millennium have commenced its tenancy and its payment of rent at an earlier date but for the position taken by Freund with respect to Millennium's use of the reception desk?' To put it another way, what would have happened if Freund had raised no objection to Millennium's use of the reception desk? Such an analysis is described as `counter factual'. Pledge v Roads and Traffic Authority [2004] HCA 13; (2004) 78 ALJR 572, 575 [15] per Hayne J.

21 At paragraph [59] of my principal reasons I referred to Professor Edelstein's evidence to the effect that once Millennium was committed to a project and ready to go, some four weeks were necessary before the clinic would be `up and running'. Mr Appudurai submitted that in accordance with the finding which I made in the same paragraph that Millennium was not committed to proceed with the project prior to March 2002, I should conclude that had it not been for Freund's position relative to the reception desk Millennium would have commenced trading and paying rent in April 2002.

22 An initial embarrassment to this interpretation of events is that Millennium commenced trading some two months after the statement of position withdrawing objection to the use by Millennium of the reception desk by Mr Arthur, namely on a letter of October 2002 (principal reasons paragraph [32]). It was not fully operational until 19 November 2002. In evidence in chief Professor Edelstein was referred to counsel's statement in August 2003. His reply was `well, that wasn't true' (T/S 485B ll 26-27). He explained:

`We still in August were not allowed to use the desk, the receptionist I had placed there, had to sit out the back. We weren't allowed to install the phones so - and there were still objections to any signage, so it just wasn't true, and I was being threatened by legal action if I started advertising bulk billing.' (T/S 485B -6B ll 31, 1-5)

He described Mrs Freund and Dr Freund mounting personal attacks upon him, calling him a liar and `screaming at me' (T/S 486B ll 13-17). Whilst this evidence was called as part of Kameel's case Mr Appudurai did not as I understand him seek to make a case that Millennium was deprived of the use of the reception desk after Mr Arthur's statement. Indeed in his submissions Mr Appudurai drew a contrast between the several confrontations which took place in the months of March and April between the parties and the lack of any such incidents after Mr Arthur's statement in August. It is obvious that there is business rivalry between Millennium and Freund and personal enmity between their principals. I do not believe that I should take Professor Edelstein's evidence to which I have just referred, as amounting to more than an assertion that even after August he and his company were made most unwelcome, a matter which is not, in those general terms, part of the counterclaim.

23 Upon Kameel's view of the significance of the reception desk incident one would have expected Millennium to have commenced trading in four weeks, indeed, in a substantially lesser period because prior to August Millennium had had a receptionist, Ms Hargrave in attendance carrying out preliminary administrative work. Millennium had had its own telephone system installed in June 2002 (principal reasons paragraph [88]). Millennium had started moving furniture in late May or early June 2002 (T/S 523B ll 24-28).

24 What delayed Millennium moving even after the reception desk issue was resolved? Mr Arthur submitted that difficulties in attracting doctors to work at Berwick played a part. He called evidence as to the limited coverage achieved by Millennium in its early days and cross-examined Professor Edelstein at some length on this point. This evidence was ultimately inconclusive. It certainly raises a suspicion that staffing difficulties may have delayed Millennium's opening; but I would not be prepared to make a specific finding based upon it.

25 One other matter is the issue of bulk billing. I had asked Professor Edelstein if it was his objective to force Freund out because in his scheme there was no place for an autonomous Freund practice. He agreed that it was fair and added in a passage which I quoted at paragraph [75] of my principal reasons and which I will for ease of reference repeat here:

To be fair I have got to add that only became a problem when he said, we are not bulk billing, you can't bulk bill in here. See these rules? You mustn't bulk bill and I'm going to sue you if you do. So that became a big sticking point. (T/S 563B ll 14-24)

26 As noted in my principal reasons the bulk billing issue was resolved when the Australian Competition and Consumer Commission moved to seek relief against Freund under the Trade Practices Act on 18 November 2002. The rules restricting bulk billing were ultimately determined to be void and illegal by consent orders made by Sundberg J in the Federal Court. Professor Edelstein said that he first approached the ACCC in `approximately May 2002' (T/S 405B l 10). Interestingly it was on 20 May 2002 that Millennium executed the first set of leases but lacking a commencement date. No explanation emerged in the evidence as to why there was a lapse of approximately two months from Kameel's instructions to its solicitors to draw up the leases (principal reasons paragraph [59]) until their execution by Millennium on 20 May. During cross-examination Mr Arthur put to Professor Edelstein that he was unable to negotiate with people. The Professor said:

But I also am pragmatic commercially, and I wanted to enter an agreement, and you will have correspondence before you of many, many efforts trying to reach agreement where I compromised in every way to try and get Dr Freund to agree to a joint operation.

And the one issue which burned, which they were concerned about, you knew it was, the payment of the reception desk, you wouldn't account to them? That paled into insignificance and wasn't raised during all of this time.

It wasn't raised? ... the main thing was bulk billing. (T/S 569B ll 19-43)

27 When the Professor was asked why he did not commence operations, the first thing that he mentioned was `the threat that we would be sued if we tried to advertise a bulk billing practice ...' (quoted in full at paragraph [64] of the principal reasons). Professor Edelstein was not cross-examined about his communications with the ACCC. It is tempting however to consider that Millennium moved to sign leases on 20 May because of a preliminary indication that it had been given by the ACCC as to its attitude to the rules of the centre insisted upon by Freund outlawing bulk billing. It is also tempting to think that the reason Millennium moved in October was because it was aware that ACCC would move against Freund shortly as indeed it did the following month. These matters were not specifically explored with Professor Edelstein in cross-examination so it is perhaps unwise to make too much of them.

28 There is one other very important matter which deterred Millennium from commencing operations. The present arrangement in which Freund's practice operates independently from the central reception desk is far from acceptable to Millennium. The only circumstances in which the Professor willingly contemplated an independent Freund practice in the clinic was one in which it would be confined to one-sixth of common areas. This was the third option put by the Professor to Freund in a letter of 18 February 2002 (quoted at [76] of the principal reasons). This was the only one of the three options that allowed for the continuation of an autonomous Freund practice at their expense. The proposal which Professor Edelstein was putting in 2002 was as follows:

What would have happened is that the staff room could have been deleted and divided that to be the Freund's area, and we would have the whole treatment room, and we would partition a small area for the staff. So it was possible to do this. (T/S 598B ll 32-42)

Mr Arthur said that Freund would have a `little area on the right hand side when you come in the front door, at the right hand side of the reception area and the play room, that is their waiting room?' The Professor agreed. (T/S 598B ll 48-54). He said that he did not now advocate this solution.

29 Nevertheless, the Professor said he was thoroughly dissatisfied with the present arrangements. He said It is hopeless at the moment' (T/S 599 ll 10-12) The Professor complained that under the existing arrangements Freund occupied

'60 to 40% of the reception desk' and `the place they occupied dead centre of the pathway, it is where patients come first. Our staff are to the side of the line of view.' (T/S 580B ll 48-54)

`There should be specific space for the patients of each centre because we have totally different ideas of the amenity that should be provided for patients ...' (T/S 557B ll 18-21).

`It's a real hotchpotch. I mean there is no uniform design, and you've got two competing practices, this was not envisaged. And then the rules were put there, for percentages to be paid, no-one's thought that there was going to be this competitive environment where everyone is at each other's throat.' (T/S 546B ll 10-15)

I remember the Professor speaking with some passion as he held up a photograph of the existing interior of the centre. He said:

`You have a look here. Here we will have stylish leather comfortable seating with a couple of upright chairs, and then Dr Freund has broken-down chair' (T/S 545B ll 28-30).

Mr Arthur asked the Professor about a coffee table depicted in the photograph and he replied `that's Dr Freund's, and I wouldn't touch it' (T/S 546B l1). Describing the objective behind the options that his company put to Freund in February 2002, he said:

`My final position is that it needed one operator to operate it in a particular manner, and to have two different operators it was just not conducive to a well run clinic' (T/S 561B ll 32-38) `and the one operator should be Millennium' (T/S 562B l4).

I jokingly suggested this was like the lines in the old western movies `this town is not big enough for both of us' (T/S 561B ll 46-48). The Professor did not dissent.

30 There was no question that Millennium wanted to leap into a full operation at the centre as soon as Freund withdrew its objection to Millennium's using the reception desk. Millennium commenced under the present arrangements only very reluctantly. The Professor said:

`I certainly started doing things in October, so we were ready to open in November, but I would just go over the same thing. Up until that time I still was trying to explore a way that we could do things together.' (T/S 573B ll 48-56). (emphasis added)

Millennium commenced business in the centre only very reluctantly in light of the passionately held beliefs of Professor Edelstein as to the unsatisfactory nature of the present arrangement.

31 In light of the very lengthy delay in Millennium's commencing trading after Freund's withdrawal of objection to its use of the reception desk (Professor Edelstein conceded that the Millennium practice did not really get underway until 19 November 2002 - the day after the ACCC acted (T/S 573B ll 38-52)) and the significant other factors which appear to have acted upon Millennium's decision of when to commence trading I do not believe it is established on the balance of probabilities that but for Freund's objection to Millennium's use of the reception desk, Millennium would have commenced operation in April or any date earlier than it in fact commenced its practice.

32 I should also note a submission by Mr Appudurai that a number of incidents described at paragraphs [111] - [121] and described generally as `confrontations', were instances of Kameel and Millennium seeking to force the issue on the use of the reception desk. At paragraph [129] I noted that implicit in the various confrontations was a view on the part of Kameel that it and Millennium were entitled to use the reception desk and entitled to confine Freund to one-sixth of the common areas including one-sixth of the reception desk. In the view that I took in my principal reasons as to Section 28(2) of the Landlord and Tenant Act both of those underlying assumptions made by Kameel and Millennium were wrong. In light of the further submissions I have heard as to Section 28(2) and the views that I have since expressed Kameel and Millennium were right in the view that they were entitled to the use of the reception desk. The findings in my principal reasons interpret these confrontations as attempts to put Freund away in the corner in accordance with the subdivision proposal that Professor Edelstein supported in 2002. Mr Appudurai submitted that I should regard these confrontations as attempts simply to install a Millennium receptionist at the reception desk. For the reasons which I gave in my principal reasons I adhere to the view that these confrontations were about an attempt to subdivide the common area. The consequence of such subdivision of course would be that a Millennium receptionist would take pride of place at the reception desk. Nevertheless, the proposed or threatened subdivision was unlawful and Freund was entitled to resist. During none of these confrontations did the representatives of Kameel and Millennium have a Millennium receptionist `in tow' to be seated, therefore none of these incidents to my mind supports the view that Freund's refusal until August to agree to Millennium using the reception desk delayed Millennium's arrival.

33 It follows that despite accepting Mr Appudurai's submissions as to the meaning and operation of Section 28(2) of the Landlord and Tenant Act 1958 my conclusion that the counterclaim fails must stand.

34 Acceptance of Mr Appudurai's submissions as to Section 28(2) however means that my conclusion that Kameel should be liable for $1,000 exemplary damages for trespass to the reception desk cannot be sustained.

35 Both parties made lengthy submissions as to costs. Both submissions resorted to a very fine grained analysis of the various twists and turns as the proceeding unfolded over a period of almost two years. Both counsel agreed that in the circumstances I should express whatever order I made by reference to percentages of the costs of the entire proceeding rather than attempting to distinguish between the costs of the claim and the costs of the counterclaim. Again, both counsel were agreed that in light of the nature and complexity of this proceeding and by way of commercial litigation, in accordance with Section 109(3)(d) of the Victorian Civil and Administrative Tribunal Act 1998 it was appropriate to make a cost order or orders as between the parties despite the presumption against awards of costs as between parties contained in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998.

36 Mr Arthur submitted that the applicant should have its costs either on County Court Scale `D" or Supreme Court Scale or alternatively on a full indemnity basis.

37 Mr Appudurai submitted that I should make the following orders:

(a) With respect to the period up to and including the 13 August 2002, that Freund pay Kameel's costs on a solicitor and client basis;

(b) With respect to the period between 14 August 2002 and 15 February 2002 (save for the costs associated with preparation for the hearing) that the parties bear their own costs; and

(c) With respect to the costs associated with the preparation for the hearing which commenced on 16 February 2004 and the hearing days that Freund pay Kameel's costs on a solicitor client basis.

38 Mr Appudurai's submission was based upon a number of `Calderbank' letters. In a facsimile transmission dated 22 March 2002 Comito & Co on behalf of Kameel made the following offers expressed to be without prejudice and pursuant to Section 112 of the Victorian Civil and Administrative Tribunal Act 1998 and to be open for 14 days:

1. The landlord releases your client from its obligations under the lease and your client vacates the demised premises and the medical centre within 30 days from the date hereof, your client pay rental and outgoings up to date.

2. The landlord reimburses your client for its reasonable expenses in fitting out the medical centre subject to the production of receipts within 30 days of the production of such receipts.

He also referred to an earlier letter headed `without prejudice save as to costs' from Kameel's solicitors similarly addressed and dated 18 March 2002 proposing that Kameel's notice of re-entry be withdrawn subject to:

(a) Your client providing our client with unimpeded access to the medical centre, other than Consulting Room 4. (For this purpose, our client will need to be provided with a key to the centre);

(b) The question of costs relating to the current proceedings and any possible cross-claim against your client for breaches of the lease, to be reserved by both parties for further discussion and/or determination by VCAT;

(c) The undertakings previously given by your client, on an interim basis, continuing full force and effect until further agreement in writing and until further notice.

39 Mr Appudurai noted that Freund had made an offer expressed to be pursuant to Section 112 of the Victorian Civil and Administrative Tribunal Act 1998. Mr Arthur disclaimed any reliance upon Freund's offer.

40 Mr Appudurai noted that Freund's claim for fit-out expenses was not part of the proceeding until the further amended points of claim dated 6 November 2002. Mr Appudurai submitted that it was only at the hearing in August 2002 that appropriate supporting material was provided to support the claim for reimbursement. Meanwhile, said Mr Appudurai, Kameel's solicitors had offered in a facsimile dated 5 June 2002 to place the sum of $9,000 in trust

To be disbursed by our firm in payment of the reception desk once we have received proper tax invoices for the cost of construction and installation of the desk and proof of payment.

We repeat though, your client must provide quiet access and quiet enjoyment to five/sixths of the common areas, storage and other rooms, shop front and signage to our client's tenant forthwith, failing which injunctive proceedings will be issued.

Freund's solicitors demanded unconditional payment of $9,000.

Expanded in an open offer in the Tribunal on 12 August 2002 to include the total claim in excess of $19,000 to be paid into Melton's Trust Account [that is the trust account of Freund's then solicitor] in return for allowing Millennium access to commence operations.

As will be recalled that led Freund through its counsel to state that Millennium would not be prevented from using the reception desk. Mr Appudurai noted that the offer to pay $9,000 into trust substantially exceeded the amount which I ultimately ordered, namely $2,983.91.

43 The claim originally mounted by Freund to enforce the restrictive provisions in the centre rules was abandoned in light of the determination by the Federal Court. Mr Appudurai said:

It is submitted that Freund's maintenance of a clearly untenable claim until 30 May 2003 was a matter relevant to costs.

44 Mr Appudurai noted that whilst Kameel's pleaded case sought to confine Freund to one-sixth of the common areas, I had found at paragraph [135] that the case as argued did not include this element. Mr Appudurai said it was

Submitted that Kameel should have its costs which relate to this aspect of the claim.

45 Mr Appudurai said there should be no costs order against Kameel with respect to the service of the Notice of Re-entry. He observed that I did not accept the evidence called on behalf of Freund as to the payment of rent and concluded that the alleged rental default existed when the notice was served. Even although Kameel advised that it would not assert an entitlement to possession of the property, Mr Appudurai submitted:

Given that Kameel's abandonment of the claim was occasioned by the payment of arrears by Freund, it is submitted that Kameel should have its costs related to that aspect of the proceeding.

46 Mr Appudurai resisted the application for costs of the hearing on 19 March 2004 on a full indemnity basis with regard to the amendments to the pleadings. Mr Appudurai also observed that Freund had taken the opportunity of putting in a late submission based on Section 28(2) of the Landlord and Tenant Act at that hearing and that the late making of that submission has played a part in the complicated course that the proceeding has taken since the publication of my principal reasons.

47 Both parties referred me to the judgment of Gillard J in MT Associates Pty Ltd v Aqua-Max Pty Ltd (No. 3) [2000] VSC 163 in which His Honour said that he regarded it as proper for a Court in fixing costs to consider all offers, proposals, exploratory discussions and the like as indicating the reasonableness or otherwise of the one party or the other in a question of costs, see paragraph [76]. In addition the provisions of Section 112 and following of the Victorian Civil and Administrative Tribunal Act 1998 create certain mandatory consequences where offers are made pursuant to the terms of those provisions.

48 In my view a wide and global approach is the appropriate one to the costs of this proceeding. I say this for a number of reasons. First, to order that a particular party have the costs of one issue and that there be no costs order with regard to another issue or that the other party has the costs of that other issue creates a difficult and potentially insoluble difficulty for the costs consultant charged with preparing any bill in taxable form and for the Tribunal's taxing officer, taxing that bill, should it be necessary. Secondly, the general presumption in Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 that there be no costs orders between the parties indicates to me that amongst other things the Tribunal should be predominately a no costs forum and even where costs are ordered, they should be on lower rather than higher scales. This tells against elaborate refinements in costs orders and has the further consequence that costs on special high scales such as solicitor client, solicitor own client or full indemnity should be rarer in the Tribunal than they are in Court.

49 Without expressing any view as to what the situation might have been in Court, I am not persuaded that any party is entitled to any order on any uplifted scale. There were only two offers made strictly in accordance with Section 112 of the Victorian Civil and Administrative Tribunal Act 1998, one by Kameel and one by Freund. Freund places no reliance upon its offer and the offer made by Kameel in March 2002 entailed Freund paying up its rent and departing, being paid the cost of the fit-out which it had funded. Freund has clearly done better than that.

50 Again, I believe the concession made by both counsel in oral argument that having regard to the nature and complexity of this proceeding is an appropriate one to make costs orders as between parties, Section 109(3)(d) of the Victorian Civil and Administrative Tribunal Act 1998.

51 In my view in broad terms Freund has been the victor in this dispute. It has secured the complete dismissal of the counterclaim against it. Nevertheless, it has failed on many points. It failed on the restrictive provisions in the rules. It failed on the claim for exemplary damages. It failed on the claim for repayment of part of the outgoings paid. It failed on most of its claim for reimbursement of the fit-out. Whilst it succeeded upon the question of possession of the premises, it did so on a point of waiver. Its evidence on the crucial point as to the payment of rent was rejected. Nevertheless, the largest part of the lengthy hearing were devoted to the counterclaim rather than to the points on which Freund failed. These considerations would lead to the view that Freund should recover a majority of its costs, yet by no means the whole. This conclusion entails a `netting' of costs which on one view might be regarded as appropriately payable to Kameel with regard to the issues upon which it succeeded.

52 Do any of the proposals or offers upon which Mr Appudurai relies change this? I have already dealt with Kameel's offer under Section 112 of the Victorian Civil and Administrative Tribunal Act and for the reasons already given I believe this does not affect the tentative conclusion I have just indicated. More difficult issues arise with regard to the `Calderbank' letter dated 18 March 2002. Acceptance of that offer would most likely have averted most of the disputation in this proceeding. As Mr Appudurai observed the claim for the fit-out reimbursement had not yet been made and it is unlikely that the counterclaim which has taken so much time to dispose of would have been made. The claim for `unimpeded access to the medical centre, other than Consulting Room 4' was legally justified. On the face of it it is difficult to understand why this proposal was not accepted by Freund. A letter from its solicitors dated 19 March 2002 said:

We refer to your letter of 18 March 2002 and advise that our client rejects your client's proposal.

This refusal however must be read in light of a facsimile transmission the previous day which presumably crossed with the `Calderbank' letter with a response to a letter dated 15 March 2003 from Kameel's solicitors stating that when the matter came on for directions before the Tribunal

We will seek an order that the applicant grants access to the respondent to the medical centre to the further and proper conduct of the case.

We advise that we have ample evidence of your client's further breaches and deny access to the medical centre to our client and in fact has taken possession of the whole of the centre without our client's consent.

The letter said that if a cross-application `for loss and damage and other relief' would be filed. The letter from Freund's solicitors of 18 March 2002 stated:

Our client has never prevented or refused access to the respondent to the medical centre.

Nevertheless the respondent's right of access to the medical centre does not entitle it to interfere with our clients' entitlement to quiet possession of this lease. In spite of this your client however due to its conduct and in breach of its undertakings has now placed our client in an invidious position where our client's safety has been compromised by your client. Our client reserves its right to seek intervention orders.

I do not believe therefore that the rejection of the `Calderbank' letter should be regarded as a denial of access to Kameel for the common areas. The confrontations which took place, as I have found, involved attempting to move Freund into one-sixth of the common area. All in all I regard the situation and the correspondence between the parties as attended by such uncertainty at the time that it would be inappropriate to make a finding that Freund acted unreasonably in the circumstances, particularly in light of the terms of its open letter of 15 March. Freund was asserting a right to exclusive possession of the desk as against Millennium and continued to assert that right until August. I have found nevertheless that that was not causative of damage to Kameel. The offers by Kameel to pay various sums into trust are not the equivalent of an offer to pay over those amounts to Freund. As Mr Arthur said Freund has never perceived a credit risk in dealing with Kameel. Paying money into trust settles nothing.

53 In the circumstances therefore I believe that I should give effect to my provisional view that Freund should have 55% of its costs of this proceeding. Those costs should in accordance with the usual practice of the Tribunal in these matters be on the appropriate County Court Scale, namely County Court Scale `D'. Whilst I have rejected submissions that costs should be allowed on any higher scale, I accept that it is appropriate to grant the various certificates sought by Mr Arthur.