Applicant v Respondent

1. Mr Ioannis Xenidis owns two units in a development. Owners Corporation Plan No PS318104R ('the Owners Corporation') brought a claim against Mr Xenidis in the Victorian Civil and Administrative Tribunal ('the Tribunal') for unpaid body corporate fees. Mr Xenidis denied liability on bases including that he had entered into an arrangement with the Owners Corporation whereby he or a company associated with him would provide services to the Owners Corporation and that the value of those services would be set off against his body corporate fees, or whereby he could set off amounts he had paid repairing water ingress damage on his lot against his body corporate fees. On 23 November 2023, after a hearing lasting four days, on the last of which Mr Xenidis did not attend, the Tribunal ordered that Mr Xenidis pay $33,035.99 to the Owners Corporation. The Tribunal's reasons, which were partly recorded on the transcript of the final day of the hearing but were also set out in written findings, make it clear that the Tribunal accepted evidence led by the Owners Corporation as to the level of outstanding fees and rejected Mr Xenidis' contention that he was able to set off against the amounts owing by him the value of any work performed by him or a company related to him or expenses incurred by him. The Tribunal's final sentence in the written findings was:

On the evidence before the Tribunal, the Tribunal is unable to find that an "agreement" was formed between [Mr Xenidis] and the [Owners Corporation] as asserted by [Mr Xenidis].

1. The Tribunal made orders for the filing and service of written material relating to costs and made provision for costs then to be decided on the papers. On 4 July 2024, the Tribunal ordered Mr Xenidis pay the Owners Corporation's costs of the proceeding from 5 October 2022 to 9 February 2024, to be taxed on the standard basis at the County Court Scale.
2. Mr Xenidis, who was and is self-represented, now seeks leave, pursuant to s 148 of the Victorian Civil and Administrative Tribunal Act 1998, to appeal against the costs order. Any appeal, if leave is granted, is limited to an appeal on a question of law. Mr Xenidis is out of time to apply for leave to appeal against the substantive order.[1]

1. By the time the application for leave to appeal came on for hearing on 24 July 2025, Mr Xenidis had filed:

(a) Five affidavits: one on 9 September 2024, one on 28 February 2025, one on 21 July 2025, and two on 23 July 2025; and

(b) Three written submissions: one on 28 March 2025, one on 11 May 2025, and one on 23 July 2025.

1. The documents filed on 23 July 2025 (the day before the hearing) were well outside the times ordered by which Mr Xenidis was to file and serve his material. Over objection from the Owners Corporation, I allowed Mr Xenidis to rely on those documents, but indicated to the Owners Corporation that if in the presentation of Mr Xenidis' argument it formed the view that it needed more time to respond, I would likely give it time to do so. The Owners Corporation did not, ultimately, seek more time to respond.
2. As further developed below, one of Mr Xenidis' central arguments was that the Tribunal had failed to consider submissions relevant to costs that he had emailed to it. In his 9 September 2024 affidavit, he said:

My emails and submissions sent to VCAT objecting to costs on 25/2/2024 (2 emails), 13/6/2024 and 17/6/2024 were not acknowledged by the Tribunal as being part of the hearing.

1. Despite filing, as noted, five affidavits, Mr Xenidis had not produced any of these emails. I told Mr Xenidis that unless he produced the emails that he said he sent to the Tribunal and to which he said the Tribunal wrongly failed to have regard, it would be very difficult for me to accept that his prospects of success on this point were sufficient to justify the grant of leave. I stood the matter down so that he could endeavour to locate and to produce them. They were then produced and, again over objection of the Owners Corporation, I accepted them in evidence but, again, indicated to the Owners Corporation that if it formed the view that it needed more time to respond on the same terms as referred to above, then I would likely give it time to do so. I note that the emails were copied, at the time they were sent, to those representing the Owners Corporation.
2. The Owners Corporation did not, ultimately, seek more time to respond to the late-filed affidavits or to the emails produced during the course of the application.

C The proposed grounds of appeal and the four sets of submissions

1. Mr Xenidis' proposed notice of appeal poses five asserted questions of law. They are as follows:
   1. Was VCAT correct to make orders only under sections 109(3)a, 109(3)b, 19(3)c, 109(e) and sections 115B and 115C of the VCAT Act 1998?
   2. Was VCAT correct to make costs orders and are they proportionate to satisfy s80(i), s97, s98(1)(a), s100, s102(1)(c) of the VCAT Act 1998?
   3. Was VCAT correct to reject the method of payment agreed upon to pay lot owner levies, fees and other charges despite section 4(f), section 5 and section 6 of the owners corporation act 2006?
   4. Was VCAT correct to make orders and not consider promissory estoppel under VCAT Act 1998 section 97 and section 98(1) (a) (c)[?]
   5. Was VCAT correct to make orders and did it fully consider section 144 and 145 (3), 167(a) (b) (c) (d) of the Owners Corporation Act 2006?
2. None of these formulations properly identifies a question of law. Accordingly, it is appropriate to turn to the proposed eight grounds of appeal, as set out in the proposed notice of appeal. Most of them either do not raise a question of law or are directed at the substantive orders and so may be put to one side. These are:

(a) Proposed ground two, which is that the Tribunal 'did not fully and properly consider' the failure of the Owners Corporation to keep financial records;

(b) Proposed ground three, which is that an Owners Corporation must act 'in good faith';

(c) Proposed ground four, which is that 'to agree to agree is an agreement as an act or a fact of agreeing';

(d) Proposed ground five, which states 'promissory estoppel relied upon for a method of payment';

(e) Part of the first proposed ground six, which asserts that the amounts claimed were 'not fully disclosed' and were adjusted 'without leave';

(f) The second proposed ground six, which asserts discrimination by the Tribunal in denying Mr Xenidis' request to attend the hearing or part of it by teleconference;

(g) Proposed ground seven, which states that Mr Xenidis was 'excluded from a variety of benefits and services such as a payment plan, loan refund, fee deferral arrangements and the waiving of penalty interest'; and

(h) Proposed ground eight, which is that it was an 'abuse of process' and a breach of duty to use the Owners Corporation Act 2006 'as an instrument to cause financial distress'.

1. Two grounds of appeal require further consideration. They are:

(a) Proposed ground one, which asserts a 'lack of procedural fairness and lack of natural justice'. As anticipated above, it asserts that the Tribunal failed to consider submissions relating to costs contained in two emails dated 25 February 2024 and emails dated 13 June 2024 and 17 June 2024; and

(b) Part of proposed ground six, which states;

The detail and reasons given in the 4 July 2024 order for costs not proportionate.

1. The four sets of submissions, one on each of 28 March 2025 (dated 27 March 2025), 11 May 2025 (dated 23 May 2025), 30 May 2025 and 23 July 2025 do not easily correlate with the proposed grounds of appeal. For the most part, the submissions do not identify or address questions of law relating to the costs order, but instead address the findings that underlie the substantive orders made. For example, in his 23 July 2025 submission, Mr Xenidis submits that the Tribunal when finding that he was liable to the Owners Corporation failed to consider: the Australian Consumer Law; the legal principles of set-off that meant he was not liable to the Owners Corporation; failures by the Owners Corporation to comply with the Owners Corporations Act 2006 which meant he was not liable to pay the body corporate fees; and the principles of promissory estoppel. He also submitted that:

(a) The Tribunal's determination that he was liable to pay the amounts lacked 'a lawful foundation';

(b) The Tribunal acted as 'an enabler rather than an impartial adjudicator';

(c) The Owners Corporation's acts were ultra vires;

(d) The Owners Corporation had been 'unjustly enriched'; and

(e) The Tribunal misapplied the law of contract and mischaracterised his defence.

1. This is not an exhaustive list. As noted above, in circumstances where the application is only for leave to appeal against the costs order, and the applicant is out of time to appeal against the substantive order, all these arguments may be put aside and the application for leave to appeal against the costs order must proceed on the basis that the substantive order stands. I note that, in any event, in circumstances where the evidence before the Tribunal is not before me, I would not be in a position to determine whether those arguments were sufficiently arguable to warrant a grant of leave.
2. That said:

(a) In paragraph 21 of his 27 March 2025 submission, Mr Xenidis stated:

VCAT did not select the correct documents for the costs orders hearing and the orders made are based on the factually incorrect, erroneous findings and copiously invalid.

This point was returned to in paragraph 29 of the same written submission under the heading 'VCAT used wrong documents' where he said:

VCAT made a significant legal error by failing to identify and select the correct documents provided as submissions of objections to costs making the orders made substantially irrelevant and unreliable. Procedural failure or general carelessness is not acceptable and no place for corporate dogma.

The point was also returned to in paragraphs 6 and 7 of his 23 July 2025 submission.

(b) In paragraph 40 of his 27 March 2025 submission, Mr Xenidis said:

VCAT did not make proportionate orders on 4 July 2024. It failed to record correct details, made erroneous assumptions, and factually incorrect statements to the extent it does not bear sufficient resemblance to the facts in the proceeding and as such the mixing with the details of a different file was a possibility.

(c) In paragraphs 53 and 54 of his 23 May 2025 submission (filed on 11 May 2025), Mr Xenidis said:

VCAT again made orders in favour of the [Owners Corporation] in July 2023 by selecting wrong documents and failing to take my submissions properly into account, disregarding and ignoring my submissions of an exemptions list, waiving of penalty interest, payment plans, financial favours and benefits to select owners.

VCAT made orders for submissions on costs and used a document made in the past before the orders were made. The judicial bias at VCAT is such that it cannot see the truth before it.

(d) In paragraph 54 of his 23 July 2025 submission, Mr Xenidis said:

Under s 109 of the VCAT Act 1998, a costs order must be just, taking into account the conduct of the parties and the nature of the proceeding. The Tribunal failed to assess that my resistance to payment was grounded in real and material concerns about inconsistency and selective enforcement, that other lot owners were relieved of the levy liabilities without sanction, I contributed services and works which remain unpaid and uncredited.

1. It emerges from the above that Mr Xenidis in effect wishes to raise two central propositions:

(a) First, that the Tribunal denied him procedural fairness because it failed to have regard to submissions on the question of costs that he had forwarded to the Tribunal for its consideration; and

(b) Second, the costs order made was not 'proportionate'.

1. Whether the Tribunal accorded procedural fairness is a question of law and, if it is established that it did not, an appeal under s 148 of the Victorian Civil and Administrative Tribunal Act 1998 may be upheld.[2]
2. I am prepared, for the purpose of the application for leave at least, to treat the second proposition as a proposition that no reasonable Tribunal, acting in accordance with the proper legal framework, could have arrived at that costs order and also that this, if established, would reveal an error of law. Accordingly, Mr Xenidis' material raises two, but only two, questions of law:

(a) Was he denied procedural fairness by the Tribunal failing to have regard to submissions on costs that he sent to it?; and

(b) Was the costs order not reasonably open?

1. Turning to the second of these questions, the Tribunal's reasons given for its costs order reveal that the Tribunal, with respect, correctly and carefully directed itself as to the principles that apply in an application for costs at the Tribunal. The Tribunal observed that the 'general rule' is that each party to a Tribunal proceeding bears their own costs, but that, pursuant to the power given by s 109 of the Victorian Civil and Administrative Tribunal Act 1998, the Tribunal may 'if satisfied that it is fair to do so' order a party to pay costs of another party in a proceeding. The Tribunal then turned its mind to some of the criteria set out in s 109(3) of the Victorian Civil and Administrative Tribunal Act 1998, such as whether a party had conducted the proceeding a way that 'unnecessarily disadvantaged' the other party, had unreasonably prolonged the time taken to complete the proceeding, and the 'relative strengths' of the claims made by each party.
2. In the course of its consideration, the Tribunal referred to Mr Xenidis' arguments that the Owners Corporation was itself responsible for the delays in the proceeding, had failed to make adequate and timely responses to his requests for discovery, and had itself caused its own costs to increase unnecessarily. The Tribunal then considered the history of the proceeding and the various adjournments that had been sought and granted. In the course of so doing, the Tribunal expressed the following views:

(a) Adjournments of the hearings listed for 5 October 2022, 8 November 2022, 18 April 2023, 18 July 2023 and 2 November 2023 were caused by Mr Xenidis;

(b) While there were 'inadequacies' on the Owners Corporation's part, Mr Xenidis 'did not conduct his defence in a businesslike manner';

(c) Although Mr Xenidis may have held a 'genuine belief that he had a good defence founded on an agreement' with the Owners Corporation, he failed to produce any 'cogent evidence establishing the formation of that agreement, or the specific works said to have been carried out', with the result that it was 'inevitable that his defence would fail' and that continuing to maintain the defence in those circumstances 'certainly prolonged the proceeding unnecessarily';

(d) Mr Xenidis presented 'voluminous submissions' to 'assert that lot owners or committee members were not financial at the time they voted in favour of the budget measures that formed the foundation of the levies that were the subject of this proceeding', but otherwise made 'no real attempt to particularise those allegations, and proceeded as though, simply by raising such an allegation, the [O]wners [C]orporation had the burden of disproving it'. Further, Mr Xenidis then 'made no attempt to engage with the details of the applicant's documentary evidence' and that, by 'raising such issues without supporting them with substantiating evidence', Mr Xenidis 'did indeed contribute to the prolongation of the proceeding'; and

(e) 'In the absence of persuasive evidence to support his defence', Mr Xenidis' defence 'was indeed without tenable basis in fact'.

1. The Tribunal then expressed its conclusion in the following terms:

Taking all of the circumstances of this proceeding into account, including the respondent's misconceived application for reopening, and having considered the submissions of the applicant and of the respondent, I consider that it is fair to order the respondent to pay the applicant's costs of the proceeding on a standard basis, from 5 October 2022 to 9 February 2024 both dates inclusive. Those costs are awarded on a standard basis at County Court scale as assessed by the Costs Court.

1. Mr Xenidis has not asserted, nor identified, any error of principle in the approach taken by the Tribunal. In light of the findings of fact made by the Tribunal, the costs order was, clearly, open. There is no prospect that an argument that the costs order was disproportionate or otherwise not open could succeed. Leave to appeal on this ground will be refused.

E Did the Tribunal fail to accord procedural fairness by failing to have regard to submissions on costs?

1. The first of the two questions of law that are raised is more problematic. By orders made 9 May 2024, the Tribunal referred to an application for costs made by the Owners Corporation in a document filed on 16 February 2024, and ordered that Mr Xenidis 'must send to the Tribunal and to the [Owners Corporation] his submissions in response to the costs application and proposed costs order' by 17 June 2024.
2. On the front page of its published reasons and orders on the application for costs alongside the heading 'Date of Hearing', the Tribunal expressly referred to (and remembering that a reference to the respondent is a reference to Mr Xenidis and a reference to the applicant is a reference to the Owners Corporation):

(a) 'Applicant's submissions as to costs dated 16 February 2024'; and

(b) 'Respondent's submissions in reply dated 19 February 2024'.[3]

1. In the body of its reasons, the Tribunal again referred to Mr Xenidis's 'Reply to the Applicant's Submissions', and said of them:

The respondent filed a Reply to the Applicant's Submissions, in which he canvassed in some detail the issues he had raised orally and in written submissions in the hearings, asserted failures of the applicant to comply with orders of the Tribunal, and criticised the procedure of the Tribunal. The respondent did not address, in his Reply, the provisions of the VCAT Act relied upon by the applicant.

... I am unable to give weight to that part of the respondent's submissions which seek to reagitate his defence. The substantive claims by the applicant against the respondent have been determined.

In summary, as far as is relevant to the costs application, the respondent's Reply asserts that the applicant itself caused delay in the conduct of the proceeding, that the applicant failed to make adequate and timely response to the respondent's requests for discovery, and by that conduct, the applicant thereby caused its own costs to increase unnecessarily.[4]

1. Mr Xenidis produced a document he sent to the Tribunal. It is headed 'Respondent's reply to the Applicant's submissions dated 9 February 2024', but is dated 19 February 2024 at its end above his name. It consists of 40 paragraphs. I am satisfied, from comparing that document with the Tribunal's reasons, which not only describe the document in the way noted but also identify certain paragraphs, that that is the document that was considered by the Tribunal. To the extent that Mr Xenidis submits that the Tribunal did not have regard to the submissions contained in that document, I reject them.
2. I am also satisfied that the document referred to by the Tribunal was in fact a reply by Mr Xenidis to submissions made by the Owners Corporation, dated 9 February 2024, that were filed in opposition to an application made by Mr Xenidis under s 120 of the Victorian Civil and Administrative Tribunal Act 1998 to reopen the hearing on the grounds that he was not present on the final day. Although that document was critical of the way the Owners Corporation had conducted the proceeding, and in that sense addressed matters that might well also be relevant to costs, it was not, in fact, a submission directed at the question of costs. The Owners Corporation's submission on costs was, according to the Tribunal's reasons, dated 16 February 2024, not 9 February 2024. Further, the document was emailed by Mr Xenidis to the Tribunal on 20 February 2024 and the covering email stated, among other things: 'I have not yet determined the Applicant's recent document seeking costs'.
3. On the other hand, Mr Xenidis:

(a) Sent an email at 10.16pm on 25 February 2024 to the Tribunal that started with the sentence: 'I strongly object to the Applicant being awarded costs against me', and then asserted matters such as that the Owners Corporation had 'every opportunity since 2018 for mediation and to settle over its disputes on its failure to keep financial records as required' and had 'every opportunity to satisfy' him that 'the amounts are true and correct but has not done so';

(b) Sent an email at 11.59pm on 25 February 2024 to the Tribunal that was expressed to 'follow on' from the earlier email and which stated, among other things, that he 'strongly objects to a costs order as the bulk of the documents were the results of Orders and due to the evasive behaviour of the Applicant';

(c) Sent an email to the Tribunal on 13 June 2024 stating that he objected to the application for costs being determined entirely on the papers and setting out some reasons for which he took that position; and

(d) Sent an email to the Tribunal on 17 June 2024 that, although it contained a lot of irrelevant material, also contained some criticism of the Owners Corporation's conduct including that it allegedly failed to follow its internal procedures for dispute resolution and refused dispute settlement procedures and did not 'make an effort to discuss the arrears' with him and also stated that 'the amounts are from 2018 and should be not subject to legal costs'.

1. Particularly in circumstances where the order was that Mr Xenidis 'send' submissions (rather than, say, file and serve submissions), I consider that the emails referred to above constituted the submissions that Mr Xenidis sought to make on the question of costs and that it was those emails that the Tribunal was required to consider if it were to accord him procedural fairness. The Owners Corporation, sensibly in the circumstances, did not submit that an email containing argument in its body, rather than attaching a separate document constituting the submission, did not have to be considered.
2. None of these emails were referred to by the Tribunal in its carefully-expressed reasons for making the costs order it made. From this, I infer that the Tribunal did not consider those emails when it decided the question of costs. Because they were not considered, I conclude that Mr Xenidis was not accorded procedural fairness.
3. It must be difficult for a busy Tribunal, with many litigants in person appearing before it, to separate what truly are submissions from what are emails sent for other purposes. This difficulty will increase as the number of emails that a litigant sends increases. In this sense, the Tribunal's error here was well understandable. The Tribunal is required to conduct each proceeding 'with as little formality and technicality' as the enabling enactments and a proper consideration of the matters before it permits.[5] Even so, it would still be open to the Tribunal, in my view, to fashion its directions, should it wish to do so, so as to require litigants who send numerous emails to file a single document that encompasses their submissions and to make it clear that it will consider only the submissions referred to in that document.
4. There is some overlap between what was set out in the submissions that the Tribunal did consider and what is set out in the emails and it may well be that the Tribunal would have arrived at the same result had it considered these emails. However, a breach of procedural fairness constitutes jurisdictional error (or amounts to an error of law) if there is a 'realistic possibility' that the outcome could have been different.[6] This requirement is 'undemanding' or 'not onerous'.[7] As Gageler J, as his Honour then was, stated in Nathanson v Minister for Home Affairs:

The importance of ensuring that a person whose interests are affected by a decision be given an opportunity to be heard before the decision is made is never greater than in those cases where there is a danger of thinking that nothing the person would be able to say could make any difference to the decision.[8]

1. I am satisfied that there is a reasonable possibility that the Tribunal might have come to a different conclusion had it considered Mr Xenidis' emails. Accordingly, leave will be granted, and the appeal allowed, against the costs orders on that basis.

(a) Mr Xenidis be granted leave to appeal against the orders made by the Victorian Civil and Administrative Tribunal in proceeding number OC2551/2021 on 4 July 2024 on the ground that the Tribunal failed to accord him procedural fairness;

(b) The application for leave to appeal otherwise be dismissed;

(c) The appeal be allowed and the order made by the Victorian Civil and Administrative Tribunal in proceeding number OC2551/2021 on 4 July 2024 be set aside; and

(d) The Owners Corporation's application for costs be remitted to the Tribunal for redetermination.

1. Mr Xenidis succeeded in this application but failed on most of his arguments and only succeeded because I allowed him, on the day of the application, to provide further material. Had he not been granted that indulgence, his application and appeal would have failed. Notwithstanding that the Owners Corporation was copied in to the emails that I have considered in these reasons, and subject to hearing from the parties, my provisional view is that:

(a) Subject to any order by the Tribunal to the contrary, the application for costs should be remitted for redetermination by the same Senior Member who determined the application;

(b) There should be no order as to the costs of the application for leave to appeal and of the appeal; and

(c) The Owners Corporation should be granted a certificate under s 4 of the Appeal Costs Act 1998.

1. I note that the emails that I have referred to in these reasons also touch on whether the application for costs should be determined on the papers or whether there should be further oral argument. That is a question that the Tribunal will have to consider when it considers Mr Xenidis' emails.
2. I repeat that the failure by the Tribunal to consider the emails was, in my view, well understandable in the circumstances in which it found itself.
3. Further, for the avoidance of doubt, nothing in these reasons is intended to convey that:

(a) The Tribunal must or should redetermine the question of costs other than on the papers should it wish to do so;

(b) The Tribunal must or should allow any further submissions or material beyond those that were previously put before it; or

(c) The Tribunal, when it redetermines the question of costs, must or should come to some other decision. It may be that the Tribunal will reach the same decision. Whether or not it does so is, of course, a matter entirely for it.

[1] Under s 148(2) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), an application for leave to appeal must be made within 28 days after the day of the order of the Tribunal.

[2] See, eg, GLS v PLP [2013] VSCA 127, [7] (Ashley JA).

[3] The word 'reply' being used, clearly enough by the Tribunal and the parties, to refer to submissions in response.

[4] Owners Corporation Plan No PS318104R v Xenidis (Owners Corporations) (Costs) [2024] VCAT 625, [9]-[11], footnotes omitted.

[5] Victorian Civil and Administrative Tribunal Act 1998 (Vic), s 98(1)(d).

[6] Nathanson v Minister for Home Affairs [2022] HCA 26; (2022) 276 CLR 80, 92 [1], 103 [32] (Kiefel CJ, Keane and Gleeson JJ), 107 [45] (Gageler J).

[7] Ibid 103 [33] (Kiefel CJ, Keane and Gleeson JJ), 108 [47] (Gageler J).