13 On 26 July 2006 his Honour declined to make orders for costs connected with two earlier hearings in circumstances where Arrow was "certainly not successful to the degree that would attract an order for costs." The conclusions I draw from the manner in which Judge Bowman has dealt with costs in this proceeding is that although interlocutory proceedings are likely to attract an order for costs, it cannot be assumed this will be so in every contested appearance before the Tribunal.

Quantum meruit and misleading and deceptive conduct claims abandoned

14 I find that both these heads of claim are substantial and that their withdrawal or abandonment is a significant change to the pleadings.

15 It is possible that there will not be substantial costs - Mr Miller of Counsel submitted on behalf of Arrow that Perpetual could not have incurred much by way of costs thrown away, as the defence to the claim for misleading conduct was no more than half a page of denials. My response during the hearing was that the issue is entitlement rather than the amount to which a party might be entitled. Mr Noble also remarked that Mr Miller did not deny the entitlement, other than to say that it would be "minimal".

16 I note that unlike the circumstances of the orders of 17 August 2005 and 6 July 2006, the claims which have been withdrawn are not particularly discrete from the remainder of the dispute between the parties, and delineating their extent could be the subject of substantial argument. For example, on 24 February 2005 Judge Bowman included in his reasons for decisions dismissing an application under s78, the fact that Arrow had pleaded misleading and deceptive conduct.

17 Mr Miller submitted that withdrawal of these issues was not because they lacked merit, but to "clarify and reduce" the scale of the hearing. While taking steps to rationalise proceedings is admirable, the earlier it is done, the less it will cost all parties.

18 I find that Arrow's amendment of pleadings in this manner is, in the words of s109(3)(a) to conduct "the proceeding in a way that unnecessarily disadvantage[s] another party." It might or might not amount to vexatious conduct; that was not argued before me. However I note that sub-sub-sub-sections (i) to (vi) of s109(3)(a) are examples of matters to be taken into account, not an exhaustive list.

19 I am satisfied it is fair that Arrow be ordered to pay the costs (if any) of Indevelco, Perpetual and Mr Zervos thrown away, and I so order.

20 Had the directions hearing been limited to the scope of the meeting of experts it is possible that there would have been no order for costs between Arrow and Indevelco. However I accept the submission of Mr Noble that attendance at the Directions Hearing was necessary to consider the costs consequences of withdrawal by Arrow of the heads of claim discussed above. In the circumstances I find it is fair that Indevelco, Perpetual and Mr Zervos be awarded their costs of the day, and I so order.

21 Mr Noble sought costs on the Supreme Court Scale because of the magnitude of the dispute. In circumstances where costs in this proceeding have previously been awarded on County Court Scale D I consider it is appropriate to maintain consistency.

22 On 22 March 2007 Arrow's solicitors wrote to the Tribunal, enclosing further submissions from Mr Miller. They had neither sought nor been granted leave to make any further submissions. In fact, during the directions hearing at which costs were discussed, I said that I was not inviting written submissions.

23 It is clear that the Tribunal cannot have regard to such submissions in the absence of exceptional circumstances that were not apparent at the hearing date - see Stockdale v Alesios & Ors (1999) 3VL 169, M Hill and G P Williams v Rural City of Wangaratta & Ors [2000] VCAT 2593 and Wharington v Vero Insurance No 3 [2006] VCAT 639. In circumstances where leave of the Tribunal has neither been sought nor granted, there is no indication that the consent of the other parties has been sought and there is no indication that there are exceptional circumstances, I have neither read the further submissions, nor had their contents communicated to me.