Austech Applications Pty Ltd v Oz Wide Trading Group Pty Ltd (Costs) (Civil Claims) [2021] VCAT 806 (26 July 2021)

1. Austech Applications Pty Ltd ("the applicant" or "Austech") seeks an order, pursuant to orders made in Austech Applications Pty Ltd v Oz Wide Trading Group Pty Ltd (Civil Claims) [2021] VCAT 345 (the reasons in the claim), for its costs in the proceeding to be paid by Oz Wide Trading Group Pty Ltd ("the respondent" or "Oz Wide") pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (the VCAT Act).

1. Guidance as to the application of section 109 of the VCAT Act is provided in the decision of Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117 at [20-23], which states:
   1. In approaching the question of any application for costs pursuant to s.109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows -

1. Austech argues that Oz Wide failed to comply with an order or direction of the Tribunal without reasonable excuse which unnecessarily caused Austech to incur costs, prolong the hearing and waste the Tribunal resources, see [3.16(a)] of Austech's costs submissions. This appears to be a reference to the orders made on 21 August 2019, which provided for any expert report relied upon by Oz Wide to be filed and served by 25 October 2019.
2. Oz Wide's submissions on this point are that the expert report was not able to be obtained by the required date, as Oz Wide did not obtain access to a working version of the software until after further orders were made by the Tribunal on 13 January 2000 and that no objection was made to any documents sought to be tendered by Oz Wide at final hearing. Oz Wide also submitted that for a factor in section 109(3)(a) to be engaged, the Tribunal must be persuaded that there was unreasonable conduct and that Austech was unnecessarily disadvantaged by that unreasonable conduct.
3. The decision of this Tribunal in Princess Chloe Pty Ltd v Ballaveau Pty Ltd (Costs) (No2) (Civil Claims) [2020] VCAT 106 at [13] states as follows: