3 The dispute arose out of a difference between landlord and tenant as to the proper operation of the rent fixing provision of a series of leases dating back as long as 1987. That line of leases, if all existing options to renew are exercised, will stretch into the future until as late as the 30th of June 2022. Until recently the tenants which conduct a community supermarket on the demised premises have been charged rent according to a process of indexation of an original rental amount set many years before by reference to the All Groups Consumer Price Index for Melbourne. The landlord applicant became concerned that a very wide discrepancy was emerging between what the landlord company regarded as the proper retail rent and what the process of indexation by reference to consumer prices in the manner which I have described was yielding. According to valuation evidence called by the landlord, the discrepancy for a year commencing the 1st of July 2002 exceeded $47,000 per annum. According to other valuation evidence called by the tenant, the divergence was of the order of $10,000 to $14,000. Ultimately the precise figures in that valuation evidence do not matter. It was the case put by the applicant landlord that either as a matter of construction or by the application of the unconscionability provisions set out in Section 8A of the Fair Trading Act 1999 and the unconscionability provisions in Section 78 of the Retail Leases Act 2003 the landlord was entitled to have the rent reviewed to market and to the extent necessary for the tenant's obligations to be amended, rectified, however one wishes to characterise it accordingly.

4 The affect of my adjudication was to reject the landlord's contentions and uphold the tenant's contention that they were entitled to hold these premises during the current term of the lease and if necessary during renewed terms, based solely upon a process of indexation by reference to the Consumer Price Index All Groups Melbourne. It is in the wake of that victory that Mr Flynn, Counsel for the tenants, makes the present application. He relies upon Section 109 of the Victorian Civil and Administrative Tribunal Act 1998.

5 In the Retail Tenancies List costs are now governed by Section 92 of the Retail Leases Act 2003. That statute took effect from the 1st of May 2003 and was in force when this proceeding was argued and determined. However, by virtue of Section 119 of the Retail Leases Act 2003 the Retail Tenancies Reform Act 1998 governs these proceedings. That statute refers the question of costs in a retail tenancies dispute to Section 109 of the Victorian Civil and Administrative Tribunal Act 1998. I pause to note that the Tribunal's power to award costs under Section 92 of the 2003 Act is far more constrained than is its power under Section 109 of the Victorian Civil and Administrative Tribunal Act. Under Section 92 the only occasions in which awards of costs is between party and party may be made are where a party refuses to participate in alternative dispute resolution processes, withdraws from them or conducts a proceeding in a vexatious manner. I note Section 92 however purely for the purposes of comparison and to explain why it should be put to one side.

6 Turning then to Section 109. It provides, inter alia as follows:

(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 sub-section (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--

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) 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);

(v) attempting to deceive another party or the Tribunal;

(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;

(e) any other matter the Tribunal considers relevant.

7 Mr Flynn bases the present application upon some three sub-provisions within the Section. First, he submits that in the circumstances the applicant landlord vexatiously conducted the proceeding. He referred to a definition of vexation to be found in the judgment of the High Court of Australia in Oceanic Sun Line Special Shipping Company Inc. v Fay [1988] HCA 32; (1988) 165 CLR 197, 247 as:

Productive of serious and unjustified trouble and harassment; seriously and unfairly burdensome, prejudicial, or damaging.

8 Secondly, he said that a consideration of the relative strengths of the claims made by each of the parties showed that the claims made by the landlord applicant were weak and the defences relied upon by his client were correspondingly strong and that that in itself was a reason why his client should have the costs order which they seek.

9 Finally, he said that the nature and complexity of the proceeding in accordance with Section 109(3)(d) was a ground for making the order. He said that these were complex proceedings and in the nature of commercial litigation. He referred to a number of Tribunal determinations which have made cost orders as between party and party in retail tenancy matters in reliance upon that paragraph.

10 I will deal with these three grounds upon which the application was based, successively.

11 Turning first to the allegation that the proceeding was conducted vexatiously. Mr Flynn focussed upon that portion of the case made by the applicant landlord which said that if upon the true construction of a lease for the supermarket premises the tenant was entitled to insist upon fixation of rent by reference to the Consumer Price Index (already described) resist review of rental to market, then the tenant's insistence upon that entitlement constituted unconscionable conduct.

12 Reliance was placed, as I have noted, on Section 8A of the Fair Trading Act 1999 and Section 78 of the Retail Leases Act 2003. I rejected that contention for a number of reasons. First, in so far as the contention appeared to require the Tribunal in effect to mend the bargain which the landlord's predecessor had made, I felt that it went beyond what the provisions relied upon and their analogue in the Trade Practices Act 1974 of the Commonwealth, namely as Section 51AC contemplated. Those provisions I felt with regard to contractual entitlements focus rather upon conduct surrounding the formation of a contract more than upon the exercise of rights in accordance with the terms of a contract. I said that to go too far in the other direction, would, so far as the Federal Court of Australia was concerned, the Court primarily responsible for the enforcement of the pregenital of these provisions in the Trade Practices Act take the Court beyond the proper realms judicial power contrary to the Commonwealth Constitution. Hence, the provision was likely to be read down in the Federal Court and by analogy in the State legislation.

13 Perhaps more pertinently, I said, that if there were no such objection, viewed objectively, the tenants had been guilty of no unconscionable conduct.

14 Mr Flynn noted that late on the second day of the proceeding in closing address, Mr Redfern, Solicitor for the applicant, said that he did not place major reliance on the unconscionability contentions. Mr Flynn said that his clients had gone to considerable trouble and expense to prepare a resistance to the case made on the basis of unconscionability and major extension to discovery which was intrusive to the respondents' financial confidentiality was forced upon the respondents based solely upon these unconscionable unconscionability contentions. To subject the tenant respondents to all this in circumstances where the argument was ultimately soft pedalled was in Mr Flynn's submission vexatious or productive of vexation in accordance with the sense given to that term in the Oceanic Sun Line case.

15 I reject that submission. In my view, the remark which Mr Redfern made on the second day was that his client placed primary reliance upon other elements of its case, not that it abandoned the unconscionability argument in any way. He told me in the course of today's application that the remark which he made was a judgment in advocacy based upon a view that his submissions on the issues of unconscionability were not going down well with me as presiding member. Certainly the determination which I ultimately gave, in no way invalidated Mr Redfern's perception at the time. However, to see that a particular part of one's case is not going well and to try and re-adjust footwork in light of that is not in itself vexatious. The grounds of unconscionability under the provisions which I have described are largely unexplored by authoritative decisions of the Federal Court or other superior courts of record in this country. Therefore, it cannot be said that there was a lack of substance in the claim which was being pressed. It was unsuccessful, but I believe that it was brought bona fide. It was not brought irresponsibly. I do not believe that that part of the case brought by the applicant landlord or for that matter any other part of the case was vexatious or that the pressing of any part of that case constituted vexation.

16 Next, I turn to the contention that a consideration of the relative strengths of the plans made by each of the parties would show it fair for there to be a costs order as between them.

17 Mr Flynn took me in some detail to the various arguments which were pressed by the applicant landlord, through its representative Mr Redfern, how in my determination I rejected each and every one of them. However, the fact that the process of that rejection spreads over one no less than 104 paragraphs shows to my mind, that none of these matters was as clear as burning day. I have already explained why the ultimately unsuccessful unconscionability claims were not manifestly weak in light of the fact that they were brought in a largely unexplored area. As to the balance, one was working with a set of lease documents that contained serious anomalies. There were references or hints at market reviews without provision for such market reviews to be carried out; false cross-references and apparent inconsistencies between the boilerplate substance of the lease and the schedule. At one point during the process of renewal, an entire line seems to have been omitted in the transcription of the terms of the boilerplate from one lease to another. There was a further document called `Notice to Vary Lease' whose provenance affect and nature remained unclear throughout. All in all this was a difficult and obscure matter to determine and there was a very long and complex documentary and commercial history which brought the parties to their present position.

18 In a number of places Mr Redfern in his characterisation of my disposition described particular steps as `matters for judgment', that is, they were matters upon which I came down one way rather than the other, being persuaded of the correctness of the view that I came down upon, but in circumstances where the matters were scarcely clear. Accordingly, in my view, this was not an open and shut case or one which should attract the operation of Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act. Every contested hearing in the Tribunal leads to determination in which one party wins and the other party looses but that fact in itself does not affect the operation of Section 109(3)(c).

19 This brings me to the final consideration relied upon by Mr Flynn, namely the nature and complexity of the proceedings. He took me to my own costs determination in Maltall Pty Ltd v Bevendale Pty Ltd (No. 2) (1998) V ConvR 58-527. In that case I said in reliance upon Section 109(3)(e) that proceedings in the Retail Tenancies List will generally be found to be of a nature and complexity which will justify the award of costs under Section 109(3)(d). Proceedings here, because they are between commercial parties are in the nature of commercial litigation. They arise out of a complex area of law in which an ancient law of landlord and tenant developed in England and Australia over a period of hundreds of years be built upon and glossed by special retail tenancies legislation from which ambiguities and difficulties are scarcely absent. I concluded from all these matters that generally in the Retail Tenancies List a victorious party would expect to receive a costs order in accordance with Section 109(3)(d). This was a matter of generality of course and the expectation of the victorious party of receiving a costs order in its favour could not be as confident as would be the expectation that a similar party in court, where the firm rule is that costs follow the event applies.

20 In response, Mr Redfern on behalf of the respondent to the present application took me to some criticisms of the approach which I adopted in the Maltall case, notably the decision of Davey J in Stelridge Pty Ltd v Handbags International Pty Ltd, a decision given in 1999 where His Honour said it was inappropriate to adopt a list-wide approach. What Section 109 required was an analysis of each particular proceeding and the circumstances surrounding it. What I said on costs in Maltall has scarcely escaped criticism. The relevant Committee of the Law Institute wrote to the Minister administering the Retail Tenancies Reform Act 1998 seeking an immediate amendment to the statute to reverse the effect of what I had done. Nevertheless, when Judge Davey came to make a determination of costs in the matter of Ensabella Pty Ltd v Players on Downunder Pty Ltd he made a costs award in favour of the victorious party and his determination in that regard was upheld by the Court of Appeal in a principal judgment delivered by Phillips JA. His Honour said that there was no evidence of any error of law in the approach which His Honour adopted. In Cannon Real Estate Pty Ltd v Diesband Pty Ltd (2000) V ConvR 58-555 Judge Davey referred to my determination in Maltall and Illiopolous as to costs without any apparent disapproval and perhaps with apparent approval.

21 Nevertheless, Mr Redfern referred to Section 35 of the Interpretation of Legislation Act 1984 which authorises a court and by extension a tribunal to consider what might be described as extraneous material to illuminate the proper construction of a statute. He referred me to a passage from the judgment of the Victorian Court of Criminal Appeal in R v Boucher [1995] VicRp 7; [1995] 1 VR 110, 123 where the Court said, of Section 35:

It is however available to be used by way of confirming if confirmation is thought necessary that the interpretation otherwise determined upon from the words used does in fact accord with what was the apparent purpose or object as it emerged if it did clearly emerge from the debates in Parliament.

22 Mr Redfern invited me to prefer that approach to the use of extraneous material to the one which commands some support that extraneous material can only be referred to under a provision such as Section 35 if there is a patent ambiguity in the statute. Mr Redfern then referred me to the explanatory memorandum accompanying the Victorian Civil and Administrative Tribunal Act which says of the then Clause 109 of the Victorian Civil and Administrative Tribunal Bill that it:

Provides that usually each party is to bear their own costs to the proceeding.

However, at any time the Tribunal may order a party to pay all or any of another party's costs.

The paragraph continues to paraphrase the provisions of the section which I have already quoted.

23 This material and material to be found in the Second Reading Speech of the Minister introducing the Retail Tenancies Reform Act 1998 stressing the need for a low cost dispute resolution system, was not referred to the Maltall, Diesband or by the Court of Appeal in the Ensabella case. Therefore said Mr Redfern, the proper approach for Section 109(1) would give it greater weight than it appears that given in the authorities referred to and relied upon by Mr Flynn.

24 This is not in my view, the occasion to fight once again, the fight as to the appropriateness of the line that I adopted at the outset of this List's existence in the Maltall case. It was highly controversial and much criticised. When Parliament enacted the Retail Leases Act 2003 it repudiated the Maltall approach comprehensively, giving a much more restrictive power to order costs as between party and party. That repudiation was foreshadowed in the various public consultative documents generated by the Office of Regulation and Reform, preparatory to the formulation and enactment of the Retail Leases Bill which became the Retail Leases Act. I will accept for the purposes of the present costs determination that sub-section (1) of Section 109 creates a presumption against the award of costs in proceedings such as this. The question I now have to determine however, is whether that presumption should be departed from in light of Section 109(3)(d) of the Act. There, Mr Redfern's submission was that this proceeding is in no way out of the ordinary in the Retail Tenancies List. He referred to a string of determinations which I have published which raise a number of perplexing and difficult issues of fact and law and which have produced lengthy written determinations. On that basis as comparison and theft as Mr Redfern says this is just `Vanilla' it is not `Neapolitan'.

25 In my view however, there is a clear answer to that submission. I was taken to it by Mr Flynn. In Ensabella v Players on Downunder Pty Ltd (2000) V ConvR 54-626 the Court of Appeal determined amongst other things an appeal against the costs award made by Judge Davey. At paragraph [43] of his judgment, Phillips JA said of this:

In delivering reasons for ordering otherwise, [that is, for ordering that one party pay the other's costs] the Vice-President relied upon "the nature and complexity of the proceeding", a factor specifically mentioned in s109; but this was said to be error in that all proceedings concerning lease of "retail premises" tend to be complex in their nature. That argument overlooks, of course, the proceedings affecting the lease of "retail premises" are but a part of the jurisdiction of the Tribunal so that, if complex, that might well provide a basis for regarding the general discretion to make an order for costs as opened. As at present advised, I see no error (and in particular no error of law) in what was said below in justification of the conclusion that the general discretion as to costs was called into play, provided only that s109 was relevant at all.

26 What His Honour is there saying, as I read him, is, that in comparing the nature and complexity of a particular proceeding for the purposes of adjudicating upon a costs application, one considers it in comparison not, to other proceedings in this List but to the entire range of proceedings in the Tribunal. I respectfully adopt His Honour's approach. Mr Redfern said that this was mere dictum because His Honour also placed reliance as justifying the costs order made by Judge Davey upon a covenant in the lease in question which provided for the tenant to pay the landlord's costs incurred by reason of the tenant's default. It is a matter of principle that where a court determines a matter upon two grounds, both grounds constitute part of the court's ratio decidendi see the decision of the House of Lords in Jacobs v London County Council [1950] AC 361. As their Lordships there remarked if it were otherwise any case determined on more than one ground would produce no ratio at all because it would be said as to any one ground that the Court really decided on one or more other grounds mentioned in its judgment. Even if I were wrong and the passage quoted from His Honour is mere dictum, it is dictum from the highest court of the State and I accept it.

27 It seems to me therefore that I must judge the nature and complexity of this proceeding on a Tribunal-wide basis. The number of retail tenancy proceedings in the Tribunal at the time the Ensabella case was determined ran at about 200 to 230 per annum. They were a mere flea bite compared to the totality of the Tribunal's jurisdiction which runs into the thousands of determinations in proceedings per annum. It was for this reason that I felt emboldened in Maltall to assert a general rule, obviously a rule not without exceptions in the Retail Tenancies List. Considering then what the nature of this proceeding is, it is clearly a proceeding by way of commercial litigation. What I have already said indicates to my mind that these were very complex proceedings indeed.

28 Mr Flynn has noted that the submissions made by Mr Golvan QC and himself included reference to no less than 50 authorities. Certainly the submissions were lengthy and the proceeding was not without factual dispute. Mr Redfern said that in the end there was little research for me as the Presiding Member to do. I do not believe that the determination which I gave proceeded entirely from the authorities referred to by Counsel. There were two important aspects, whatever their merit derived from my own research. In my view however, that is beside the point; or it might be thought to be a point in favour of Mr Flynn's costs application because the very extensive range of authority referred to in my determination came from the parties, including the present costs applicant, indicating the extensive work and therefore expense which was necessary in the preparation of the proceeding for trial.

29 Mr Redfern also noted that the reasons were published within 21 days of the conclusion of the proceeding. That is true; but that reflects more upon the Tribunal's efficiency than upon the inherent complexity of the matter. Having written the determination, I can say that I certainly found it a complex and a difficult matter to determine. It is perhaps paradoxical that we find the parties to some degree in reverse roles in their submissions with regard to Section 109(3)(c) in comparison to the submissions that they made with regard to Section 109(3)(d). Mr Redfern it will be recalled said, this was not an open and shut case. There were many difficult matters to determine which were matters for judgment. Mr Flynn said `no, it was an open and shut case, the landlord's case was doomed from the start and had no merit'. When we move sub-section (d) however, Mr Redfern's submission is `no, this was quite a straight forward case' and Mr Flynn says `no, it was a difficult and complex case'. In my view, this was a difficult and complex case. It was in the nature of commercial litigation, the figures that I have mentioned and the duration of occupancy that potentially arises here indicate that the proceeding was one in which a lot of money was at stake. In my view therefore, Section 109(3)(d) justifies a departure from the general rule that costs lie where they fall and in my view a costs order should be made in favour of Mr Flynn's client.

30 The next question is, upon what scale should that costs order be made? Mr Flynn's primary submission as previously noted was that the order should be made upon a full indemnity basis. He referred me to the well known Federal Court authority Fountain Selected Meat Sales Pty Ltd v International Produce Merchants Pty Ltd [1988] FCA 202; (1988) 81 ALR 397, especially at pages 400 - 401 the judgment of Woodward J and Colgate Palmolive Co v Cussons Pty Ltd [1993] FCA 536; (1994) 118 ALR 248. It is unnecessary for me to express a view as to whether, if this matter had been heard in Court, it would have been an appropriate one for an order of costs on a full indemnity basis. What I have said already with regards to Mr Flynn's reliance upon Section 109(3)(c) of the Victorian Civil and Administrative Tribunal Act suggests that in Court this matter would not attract an order for indemnity costs. The issues were difficult and complex. This was not an open and shut case and none of the points pressed by the applicant was in my view so without substance nor pressed other than bona fide that an indemnity costs order would be justified in Court. What is more important however is what should the rule be in the Tribunal.

31 Mr Flynn's solution was that once one of the paragraphs of Section 109(3) of the Victorian Civil and Administrative Tribunal Act was engaged and a discretion to award costs was enlivened, one had passed Section 109(1) and it ceased to have any further significance. In my view, however, Section 109 continues to be relevant for this reason. It shows that the Tribunal is in intended to be a no costs jurisdiction most of the time. Implicitly therefore, it indicates that even where costs are allowed that it should be a low costs jurisdiction rather than a high costs jurisdiction. Therefore, even if, contrary to the view that I have already expressed this would have been a proper matter for the award of indemnity costs in Court, it is not an appropriate one in the Tribunal. Awards of indemnity costs are the exception rather than the rule in Court, though I accept such orders are becoming increasingly common now in comparison with the situation 20 or 25 years ago. Nevertheless, they are the exception rather than the rule and the existence of Section 109(1) shows that such orders are rarer birds still in the Tribunal. I reject the application for costs on an indemnity basis.

32 The next question is should I accede to the application made as a fall back solution for costs upon the Supreme Court Scale? I put to one side the issue as to whether I should certify for Senior Counsel for a moment. There is no clear rule in Section 109 as to what scales should be applied. Generally I have take the approach in this Tribunal (the Maltall case is an example of it) and I have carried on in that manner since, that the scales in the County Court are the appropriate scales to apply. I gave my reasons for adopting that line in Maltall. There is however precedent for adopting a different view. In the Ensabella case, Judge Davey made his award of costs on the Supreme Court Scale as did Senior Member Davis (as he now is) in the matter of Jacques Nominees v AXA Trustees Limited (unreported 23 October 2000). What has generally guided me and I believe other members in selecting, for instance, amongst County Court Scales is a consideration of what monetary amount is in dispute. Here, it is not entirely clear how much money is in dispute between the present parties.

33 Mr Flynn relied upon the discrepancy between the contractual rent as determined in my principal reasons and the claimed market rent which the landlord company was ultimately seeking to recover in excess of $47,000 per annum.

34 Mr Redfern however noted that I had tentatively expressed the view that the tenant's valuation evidence showing a discrepancy between contractual rent and market rent of approximately $14,000 was to be preferred. Mr Redfern submitted that I should pay no regard to the potential that these tenancy arrangements may reach out to the 30th of June 2002. However, since his submissions proceeded upon the opposite assumption with regard to some other matters, I do not find this last submission terribly persuasive. Obviously how much money has been won or lost by the determination that I have made is uncertain. I believe however that this is a matter which could have been brought before the Supreme Court absent the special provisions of the Retail Tenancies Reform Act 1998 which give these matters to the Tribunal's exclusive jurisdiction without costs penalty. The present tenant was faced with a demand for rent which initiated the present dispute, upping the annual rent by some $47,000, that is by about more than 40 percent. It is obviously a very threatening and important piece of commercial litigation for the tenant to be dragged unwillingly into. In my view, having regard to those factors and what was at stake, it is just that the costs should be fixed in accordance with the provisions of the Supreme Court Scales and I do that in following the precedent adopted by Judge Davey and Senior Member Davis.

35 The next question is whether the fees of Senior Counsel should be allowed. Mr Redfern's submission was that whilst it was reasonable and proper for the tenants, consulting their own interests, to have the most able legal representation, the requirements of justice would not oblige his client to shoulder the cost of that additional representation by senior counsel. Mr Flynn referred me to a decision of the Full Court of the Supreme Court in Oldaker v Currington [1987] VicRp 61; [1987] VR 712 where a Court consisting of Murray, McGarvie and Marks JJ delivered a joint judgment. They were considering an application for a certificate for senior counsel in a County Court personal injury proceeding in which liability had been admitted by the defendant and the only issue remaining for determination was the quantum of damages. Their Honours determined first, that no different approach should be adopted in the County Court to certifying for senior counsel as was adopted in the Supreme Court. It was a matter of the justice of the case rather than the position in the Court hierarchy in which the trial was taking place. I regard that incidentally as indicating that if all else shows it to be appropriate, the mere fact that this dispute is in the Tribunal does not render it inappropriate that senior counsel should be certified for if that is what justice requires.

The cases show that a wide variety of circumstances may be treated as warranting the engagement of senior counsel. A common circumstance is the weight of the case which may make a division of labour between counsel desirable. Another is the need for the special skills and experience to be found within the inner-bar.

[They then referred to Stanley v Phillips [1966] HCA 24; (1966) 115 CLR 470.]

In the present case Mr Riordan submitted that the retention of senior counsel was warranted because the case was technical and difficult with a nice analysis being required; it was a protracted case and the injuries were of some magnitude.

The Court ultimately determined that senior counsel should not be certified for because it was not just to pass that additional fee onto a defendant to enable a plaintiff to squeeze the last penny of damages out of the defendant.

37 In my view however, the present situation is different. One can readily imagine that failure in this proceeding would have threatened the financial viability of the tenants' business. Certainly it would have a very marked effect on any value for goodwill which the respondents might have been in a position to exact upon a sale. This was not a matter of extracting the last penny of damages. It was a matter, having regard to the sums of money involved, close to financial survival. Certainly this was not a case where there was a vast amount of factual material by way of viva voce evidence to be assimilated. The history of these tenancies was however quite complex and in my view the division of labour between counsel would be desirable in preparation. The weight of the case in that sense however would not justify the retention of senior counsel; however, in my view, the matters just mentioned combined with the special skills and experience to be found in the inner-bar do. Mr Golvan served as an arbitrator under the Retail Tenancies Act 1986 and has written and spoken widely on these matters. He is very highly regarded and would be an ideal person to present a case which, aside from the matters which I have referred, to turned also in large degree upon an analysis of the effect of the varying restrictions upon rental fixation applicable to retail tenancies from 1987 to the present. Moreover, even although the Court was not persuaded in Oldaker's case that these matters should justify a certificate for senior counsel in the words which their Honours quoted from Mr Riordan's submissions the case the case can properly be seen as technical and difficult and with a nice analysis required. In my view, therefore, the costs order should include to the extent necessary, certificates for senior and junior counsel in the drawing and settling of pleadings, witness statements and appearances. I should also note another submissions made by Mr Redfern. He said that the present dispute should be seen to some degree in the same light as an originating motion upon construction of a will or the determination of some difficult issue in the administration of a deceased or bankrupt estate. There, the costs of the proceedings are, save in unusual circumstances, taken out of the estate. Certainly the costs of the executor or trustee are taken out of the estate and the position of beneficiaries or creditors is pro tanto diminished. The reason that it is thought just to do so is because the beneficiaries or creditors have the benefit of the directions: not merely the executor or trustee. Here, said Mr Redfern both landlord and tenant have the advantage of these determinations and they save both of them, from future disputes as to the matters which have now been determined. As an instance of how these sorts of disputes can spring up to the disadvantage of original or assignee parties he referred me to a determination of the New South Wales Court of Appeal in Westpac Banking Corporation v Tanzon [2000] NSWCA 25. Inferentially Mr Redfern therefore submitted that in light of this consideration it was unjust to pass the entire cost of the proceedings, at least to the extent that a party party costs order does so, to his client.

38 Mr Flynn's response was to say that this proceeding was brought by the landlord not merely in a quest for clarity but also in a quest for cash. The gap as the landlord saw it between the contractual rent and the market rent was the motivation and this said Mr Flynn was the engine that set the proceeding in motion. The proceeding was pursued resolutely. In my view whilst there is an advantage to the tenants in having these matters determined in their favour, if given the choice they would have been happy to jog along on the same basis, namely the CPI indexation which appeared to be working for a number of years. They were dragged unwillingly into this very costly piece of litigation. I do not accept the analogy which Mr Redfern pressed upon me. I believe this was a simple case where the landlord for very understandable reasons sought more rent and brought this proceeding to secure that additional rent. The tenants out of their self interest resisted and have succeeded.

39 For all those reasons I believe a costs order should be made in favour of the respondent tenants in the terms which I have indicated.