1. The power to award costs is contained in s 109 of the Act, which relevantly provides as follows:
   1. 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-

1. failing to comply with an order or direction of the Tribunal without reasonable excuse;
2. 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);

1. causing an adjournment;
2. attempting to deceive another party or the Tribunal;
3. 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.

8 The approach of the Tribunal to the question of costs was summarised by Gillard J in the case of Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [20]:

The prima facie rule is that each party should bear their own costs of the proceeding.

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.

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.

1. The preliminary requirement is that the costs order be fair, which has been said to require that the order be 'just and appropriate in the circumstances'.[3] Furthermore, the power under s 109 has been recognised as a very powerful one, justifying a broad scope of costs orders, including orders against successful parties and against parties joined against their will.[4]

1. Zaid and Sadiq argue that Laith claiming that the funds were a gift from his father was 'fantastical' and 'self-serving'. Furthermore, that there was no tenable basis in fact or in law. They also argue that they are entitled to have their costs of the proceeding paid by Laith pursuant to s 109(3) of the Act.
2. Sadiq and Zaid state that they incurred a total of $90,522.84 in legal fees and hearing fees.
3. Alternatively, they argue, that if the Tribunal is not prepared to award Zaid and Sadiq the entirety of their legal costs, they seek an order that the costs of the hearing being unnecessarily extended from 3 to 6 hearing days be paid by the respondent.

1. Zaid and Sadiq submit that Laith made a claim that has no tenable basis in law or fact. They argue that the Tribunal is to consider the relative strengths of the claims of the parties, including whether a party has advanced an untenable claim. They refer to Brown v Mornington Peninsula SC [5] to show that s 109(3)(c) can support or justify a costs order even if the higher test of untenability is not established.
2. Zaid and Sadiq submit that Laith pressed a clearly implausible, manifestly weak or uncredible case. Furthermore, that there was a substantial disparity between the strength of the claims of Zaid and Sadiq on the one hand, and the false claim by Laith on the other. The false claim being that Sadiq transferred the funds as a gift to Laith and that Sadiq had no interest in the property.

1. Zaid and Sadiq submit that the dispute involved a substantial sum of money and involved serious evidentiary issues. All parties gave differing evidence and there were a number of complex factual and legalistic concepts. Due to the complex and sustained nature of the dispute and the conduct of the proceeding, Zaid and Sadiq argue they are entitled to their costs under s 109(3)(d) or 109(3)(e).
2. Zaid and Sadiq further argue that they have suffered substantial hardship, both financial and emotional as the dispute was between family members, emotions ran high and the financial stakes were significant; all of these factors are to be considered on the question of costs.[6]
3. Zaid and Sadiq submit that the manner in which Laith conducted the proceeding should be a matter that is taken into consideration. They argue that Laith was responsible for unreasonably prolonging the time it took to finalise the proceeding, namely:

(a) the night before the hearing scheduled for 24 March 2022, Laith provided an additional 2,405 pages to the Tribunal Book to VCAT. This caused an adjournment for the day;

(b) prolonging the proceeding on 8 February 2023 by not producing physical copies of his supplementary Tribunal Book, causing Laith to print his documents, wasting half of the hearing day;

(c) instructing both of Laith's experts to not take into account the relative entitlements of each party to the proceeds of sale, requiring the Tribunal to cross-examine and re-examine the evidence and having Mr Mudie recalculate his figures on the basis of a more realistic scenario;

(d) falsely alleging that Zaid had stolen $20,000 from a particular joint account with Laith, however this allegation was found false.

1. With respect to these events, Zaid and Sadiq argue that the hearing time was lost or delayed, and what should have been a 3-4 day hearing was unnecessarily extended to 6 sitting days. Therefore, Zaid and Sadiq should have their costs of those extra days paid by Laith.

1. Laith states that he has incurred $107,608.04 in legal fees. He seeks an order for his costs to be paid by Zaid and Sadiq.
2. The Tribunal notes that Laith provided substantive submissions that focus on revisiting the substantive decision rather than being in support of his application for costs.

1. Laith argues that Zaid and Sadiq conducted the proceeding in a way that 'unnecessarily disadvantaged another party by failing to comply with an order or direction of the Tribunal without reasonable excuse.' Laith submits that Zaid did not include multiple documents that were emailed to him on 1 March 2022 in his initial 743-page Tribunal Book which was his responsibility to produce. As a result, this caused unnecessary delays, legal and printing costs, further causing stress on Laith. He asserts that to avoid further 'meddling', he submitted a 3-volume supplementary Tribunal Book.
2. Laith further argues that he requested copies of both Zaid and Hani's bank statements on multiple occasions. However, a subpoena needed to be issued by his counsel in order to get the statements. Laith incurred further unnecessary legal costs and delays to the proceeding. He further argues that he had to submit a 1436 paged supplementary Tribunal book because the applicants did not include all relevant and up-to-date materials.

1. Laith argues that Zaid and Sadiq's counsel, Mr Seifman, caused unnecessary delays due to interrupting the respondent on two occasions. The respondent argues that Mr Seifman falsely stated that a prior agreement was made without prejudice and to have the offer be reviewed by another member.[7]
2. Laith further argues that on the third day of the hearing, Sadiq required an interpreter, as none were available, it was adjourned. Therefore, he states it was impossible for the hearing to have been completed within the 3 days, as parties still needed to be cross-examined.
3. Laith submits that Zaid and Sadiq initially relied on an expert report prepared by Mr Kumar, who did not rely on sufficient evidence and had multiple flaws. Therefore, he argues because the evidence was discredited and did not serve the Tribunal or parties, he incurred unnecessary legal fees.
4. It should also be recorded that the expert report of Tony Natoli, prepared for and relied on by Laith was unable to be tested as Laith chose not to call Mr Natoli to give evidence.

Attempting to deceive another party or the Tribunal

1. Laith suggests that Zaid and Sadiq's 'core and central argument was based on their fictitious and incomprehensible fifths, quarters and thirds claim' agreement_._ And this agreement alleged by Zaid relating was illogical and never occurred. Therefore, claiming that Zaid and Sadiq had lied under oath.
2. He further argues that Zaid misled his expert witness, Mr Kumar, by not providing him with sufficient bank statements, receipts or invoices. He claims that Mr Kumar relied on verbal statements rather than tangible evidence. By not providing their bank statements, the applicants' expert report had flaws and despite this, the applicants still submitted this to the Tribunal. Laith argues that this was an attempt to deceive the Tribunal.
3. Laith alleges that Zaid lied under oath and claimed he never made an agreement with Laith regarding funds in a joint offset account. Additionally, the respondent claims that Zaid has a pattern of lying and includes alleged conduct from prior to the proceeding.
4. As noted above, much of these arguments are simply revisiting the substantive decision and not addressing the matters which I am required to consider in relation to an application under s 109 of the Act.

1. Laith argues that by Zaid scanning his witness statements upside down and having the bank statements out of order in his Tribunal Book, making it difficult to read, amounted to vexatious conduct.
2. He further alleges that Sadiq threatened him in Arabic while he was cross-examining Mr Kumar. Furthermore, Zaid yelled at Laith when he approached Zaid's counsel which Laith argues amounted vexatious conduct.
3. Laith further asserts that Zaid conducted the proceeding vexatiously when he declined granting an extension for him to fulfil an order due to medical reasons.

1. Laith argues that when Zaid and Sadiq applied to join Hani to the proceedings as a second joined party, there was insufficient evidence to support Hani having an interest in the property and its proceeds.

1. Laith argues that adding Hani as a joined party without sufficient evidence caused avoidable and unnecessary costs to be incurred in preparation and cross-examination.
2. With respect to his arguments relating to s 109(3)(c), (d) and (e) much of his argument revisits the substantive decision and he argues that Zaid and Sadiq never had a real case. This is despite the outcome of the hearing.

1. Laith submits that he was interrupted twice by Mr Seifman, this interruption notified the Tribunal that the mediation was protected by privilege. Therefore, Laith could not use the agreement to support his argument.
2. In this respect, I find that this section is not relevant.

1. The criteria of s 109(3)(a) requires a determination that the applicant conducted the proceeding in a way that has 'unnecessarily disadvantaged' another party. It is not enough to have been disadvantaged, but whether the disadvantage was 'unnecessary'.[8]
2. Laith argues that Zaid and Sadiq caused an adjournment because there was no interpreter available on the day. I find this aspect of Laith's claim is absurd; the adjournment was necessary as there was a mismatch with the interpreter. It was essential for the hearing to be adjourned to provide Sadiq the opportunity to present his case and ensure procedural fairness. The Tribunal's obligations under ss 97 and 98 of the Act are paramount. To have continued with the hearing in the absence of an appropriate interpreter for Sadiq would have been contrary to these obligations. This was not an adjournment caused by either party.
3. Whether s 109(3)(a) gives the Tribunal authority to consider matters that occurred prior to the proceeding is unsettled; however the current position is that prior conduct is 'irrelevant'.5 I agree. Laith sought to rely on Zaid's conduct prior to the proceeding, but I find that this conduct is not relevant.
4. Therefore, I find that Zaid and Sadiq did not conduct the proceeding in a way that unnecessarily disadvantaged Laith.
5. With respect to s 109(3)(b), this subsection is only relevant from the time the proceeding commenced to when it was completed; not in relation to anything that occurred beforehand.[9]
6. Laith relies on the absence of some documents from the Tribunal Book to support his argument that the proceeding was unnecessarily prolonged. In addition, he argues that the interruptions during the hearing by Zaid and Sadiq's lawyers resulted in the proceeding being unreasonably prolonged. Conversely, Zaid and Sadiq argue that Laith caused the proceeding to be unreasonably prolonged when he submitted a large supplementary Tribunal book the night before the hearing.
7. It is expected and normal for there to be some interruptions while parties are presenting their case. It is a stretch to argue that two interruptions would amount to unreasonably prolonging a proceeding.
8. With respect to the filing of materials and when they were submitted, both parties have contributed to delays that have prolonged the proceedings. That said, the filing of the supplementary Tribunal Book, without having hard copies for Zaid and Sadiq's legal representatives, did cause an adjournment of the hearing for the day. It is notable that many of those documents were not ultimately relied on or referred to by Laith or his witnesses during the hearing. They were more relevant to, and should have been provided to, the accounting experts.
9. With respect to s 109(3)(c), when assessing relative strengths of the claims made by each party, VCAT cannot prefer the claims of one party over another; otherwise, it would always be fair to award costs in favour of the successful party.[10] Relative strength must be considered regarding a 'substantial disparity between the strengths of one party's claim against the weakness of its competitors'.[11] However, substantially succeeding due to the weakness of another party's claim does not guarantee s 109(3)(c) is invoked.
10. No tenable basis in fact or law is considered where a party had a reasonably weak or untenable claim and proceeded despite having no prospects of success.[12] Furthermore, where the claim is 'incapable of being maintained against argument'.[13] The criteria of no tenable basis in fact or law are not held to refer to cases where it is merely insubstantial or weak, opposed by a strong case, or where there is a firm comprehensive conclusion reached by VCAT.[14]
11. Here, I note that Laith claimed Sadiq transferred his life savings as a gift to him. I found that the funds were not a gift, as Sadiq would not put himself in a position to render himself penniless when moving to a new country. I found Laith's argument to be weak and with no basis. While I decided in favour of Zaid and Sadiq and they had a stronger case, it does not necessarily mean costs are to be awarded in their favour.
12. Furthermore, I note that a substantial amount of Laith's affidavit and submissions for costs are disputing evidence and facts in my previous decision. Most of which I do not find relevant in awarding costs under s 109(3)(e).
13. As in Jorgensen,[15] I reject the materials that are completely irrelevant to the costs application. This is a decision on costs and not substantive evidence. An application for costs does not give any party the opportunity to reignite a proceeding that has already been dealt with. If any party disagreed with the decision, they had the opportunity to appeal.
14. In Firkin v Pease,[16] the Supreme Court stated that there is an emphasis on the analysis of the reasonableness of the parties' conduct, rather than relying upon the mere fact that a party may have achieved 'practical success'. Therefore, while the applicants were successful in this case, I must consider the conduct of both parties in considering an order for costs.
15. I find that there were faults on both sides in conducting the proceeding. Between both parties, there were issues with their interactions, submitting all materials and doing so in a timely manner. Furthermore, the evidence that each party relied on failed to consider crucial information such as that in both the parties' expert reports.
16. As this was a dispute between family members, there was already a lot of tension between the parties. Each side alleges the other had conducted themselves in a way that unreasonably prolonged the proceeding. However, considering the conduct of both parties and what is reasonable, I find that it would be fair to not award costs to any party.

1. Having regard to all the relevant considerations under s 109(3) in their totality rather than isolation. I find that it is not fair to award costs to either party in the circumstances. I have taken into account the reasonableness of the parties' conduct and find that both parties should not be entitled to costs.
2. Under s 109 of the Act, the general rule is that each party is to bear their own costs unless the Tribunal finds that it is fair to order otherwise. In these circumstances, I am not satisfied that it is fair to depart from the position that each party bears their own costs under s 109.
3. I therefore dismiss each of the applications for costs under s 109(3) made by Zaid, Sadiq and Laith and will make orders accordingly. The consequence of which is that each party shall bear their own costs.

[1] (Building and Property) [2025] VCAT 74.

[3] Filippou Management Pty Ltd v MREEF Project Company No 11 Pty Ltd [2010] VCAT 1261 at [20].

[4] See Emrys Nekvapil, Pizer 's Annotated VCAT Act, (Thomson Reuters, 2022, 7th Edition), p. 587-588.

[5] [2004] VCAT 1140.

[6] JFS Corporation Pty Ltd v Basyle Enterprise Pty Ltd [2004] VCAT 931 at [12].

[7] During the first 3 day hearing the respondent sought to rely on documents which the applicant and joined party argued were privileged documents. As the respondent insisted on producing those documents to the court, a preliminary hearing had to be conducted by a different Tribunal member to ascertain the admissibility of the documents the respondent wanted to rely on. Some were found to be privileged and some found not to be privileged.

[8] See Falconbridge Pty Ltd v Yarra CC [2005] VCAT 2449 at [18].

[9] Colac-Otway SC v Tenth Cemalux Pty Ltd & Anor [2003] VCAT 280 at [54]; Johnstone v Mansfield SC [2009] VCAT 287 at [13].

[10] Beasley v Department of Education and Training [2006] VCAT 2044 at [20].

[12] Balogh v Municipal Electoral Tribunal (General) [2007] VCAT 2398 at [5]- [6].

[13] Charter Hall Group v Whitehorse CC No. 2 [2008] VCAT 1536 at [7].

[14] unChain St Kilda Inc. v Port Phillip CC & Ano [2009] VCAT 2509 at [7].

[15] Jorgensen v Wilson (No 2) [2023] ACTCA 50, at [4].

[16] [2020] VSC 539 at [33] (citations omitted).