1. Pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic), the Building and Plumbing Commission must pay Hayden Browne's costs of the stay application from 25 August 2025 up to and including 30 September 2025, with the costs to be assessed by the Costs Court, in default of agreement, on a standard basis on the County Court Scale of Costs as in force at 31 December 2024.

1. Mr Hayden Browne (the 'applicant' or 'Mr Browne') seek an order that the Building and Plumbing Commission ('Commission'), pay his costs of the successful stay application pursuant to section 109 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (the 'VCAT Act'). Mr Browne also relies on section 112 of the VCAT Act.

1. Mr Browne has applied to this Tribunal for a review of disciplinary decision by the Building and Plumbing Commission dated 11 July 2025. As part of his application, Mr Browne sought a temporary stay of the decision made on 11 July 2025 under section 50 of the VCAT Act, until the hearing and determination of the review.
2. The stay application was heard and determined by me on 30 September 2025. The Commission opposed a stay of the decision.
3. On 30 September 2025, I made orders and gave oral reasons in the proceeding. The orders made on 30 September 2025, included the following:

1. Under s 50 of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('VCAT Act'), VCAT stays the respondent's decision made on 10 July 2025, until the hearing and determination of this proceeding or further order.
2. The applicant's application for costs of the stay application must be made in writing to the Tribunal by 14 October 2025 as follows:

(a) The applicant must set out in full the submissions of the party on costs, including a copy of any costs offer and response, and the submissions must be served on the respondent at the time of filing with the Tribunal. The submissions must indicate the statutory basis for the costs application, i.e. section 109 and/or sections 112**-**4 of the VCAT Act;

(b) The respondent must by 29 October 2025, file with the Tribunal and serve on the applicant any submissions on costs;

(c) The applicant may by 5 November 2025 file with the Tribunal and serve on the other party a reply to the respondent's costs submissions;

(d) Each written submission shall be no more than three pages;

(e) The Tribunal intends to make any decision regarding costs on the papers;

(f) After 6 November 2025, the matter should be referred to Member Campbell to make a decision on the application for costs

1. The parties filed submissions on costs in accordance with the Tribunal's orders. The Tribunal decided the costs application on the papers. The following are the Tribunal's reasons.

1. The power for VCAT to award the costs of a party to a proceeding is contained in sections 109 and 112 of the VCAT Act. Section 109 relevantly provides:

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 -

(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);

(iv) causing an adjournment;

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

(vi) 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.

(4) If the Tribunal considers that the representative of a party, rather than the party, is responsible for conduct described in subsection (3)(a) or (b), the Tribunal may order that the representative in his or her own capacity compensate another party for any costs incurred unnecessarily.

(5) Before making an order under subsection (4), the Tribunal must give the representative a reasonable opportunity to be heard.

(6) If the Tribunal makes an order for costs before the end of a proceeding, the Tribunal may require that the order be complied with before it continues with the proceeding.

(7) A power of the Tribunal under this section is exercisable by any member.

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 -

(i) The prima facie rule is that each party should bear their own costs of the proceeding. > > (ii) 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. > > (iii) 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. Whilst it is appropriate for the Tribunal to consider each of the specified matters in s.109(3) and express a view as to the weight that should be attached to the particular matters relied upon, in the end it is important that the Tribunal consider all the matters together and determine whether it is fair to make an order for costs. When dealt with in isolation, each of the matters may lead to the conclusion that it is not fair to make an order for costs, but when taken together, the Tribunal may be satisfied that it is fair to do so. It is the totality of all relevant matters under s.109(3) that must be considered in the context of the prima facie rule.
2. Some of the matters specified in s.109(3) provide guidance to the Tribunal as to what orders should be made. For example, findings based on s.109(3)(a) and (b) would lead to an order being made against the party guilty of the conduct identified. Section 109(3)(c) provides some guidance in that if the party makes a claim that has no tenable basis in fact or law, then that party should pay costs. On the other hand, s.109(3)(d) does not provide any guidance as to how a finding in relation to the nature and complexity of the proceeding should result in an order for costs. In this sense the paragraph is neutral, and in considering and having regard to the nature and complexity of a proceeding, the Tribunal may in all the circumstances conclude that a costs order should be made, or it may conclude that by reason of the nature and complexity of the proceeding no costs order should be made. But it must be steadily borne in mind that whatever findings may be made, having considered the matters set out in s.109(3), an order can only be made if the Tribunal is "satisfied that it is fair to do so".
3. In relation to costs and offers of settlement, sections 112 to 114 of the VCAT Act provide as follows:

112 Presumption of order for costs if settlement offer is rejected

(1) This section applies if -

(a) a party to a proceeding (other than a proceeding for review of a decision) gives another party an offer in writing to settle the proceeding; and

(b) the other party does not accept the offer within the time the offer is open; and

(c) the offer complies with sections 113 and 114; and

(d) in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.

(2) If this section applies and unless the Tribunal orders otherwise, a party who made an offer referred to in subsection (1)(a) is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made.

(3) In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal -

(a) must take into account any costs it would have ordered on the date the offer was made; and

(b) must disregard any interest or costs it ordered in respect of any period after the date the offer was received.

113 Provisions regarding settlement offers

(1) An offer may be made -

(a) with prejudice, meaning that any party may refer to the offer, or to any terms of the offer, at any time during the proceeding; or

(b) without prejudice, meaning that the Tribunal is not able to be told of the making of the offer until after it has made its orders in respect of the matters in dispute in the proceeding (other than orders in respect of costs).

(2) If an offer does not specify whether it is made with or without prejudice, it is to be treated as if it had been made without prejudice.

(3) A party may serve more than one offer.

(4) If an offer provides for the payment of money, the offer must specify when that money is to be paid.

114 Provisions concerning the acceptance of settlement offers

(1) An offer must be open for acceptance until immediately before the Tribunal makes its orders on the matters in dispute, or until the expiry of a specified period after the offer is made, whichever is the shorter period.

(2) The minimum period that can be specified is 14 days.

(3) An offer cannot be withdrawn while it is open for acceptance without the permission of the Tribunal.

(4) In deciding whether to give permission, the Tribunal may examine the offer, even if it was made without prejudice.

(5) If the offer was made without prejudice, a member of the tribunal who examines it for the purposes of subsection (4) can take no further part in the proceeding after determining whether or not to give permission.

(6) A party can only accept an offer by giving the party who made it a signed notice of acceptance.

(7) A party may accept an offer even though it has made a counter-offer.

1. Section 111 of the VCAT Act provides that if the Tribunal makes a costs order, the Tribunal may fix the amount of costs or may order that the costs be assessed, settled, taxed or reviewed by the Costs Court.

1. The Tribunal will first deal with Mr Browne's costs application under section 112 of the VCAT Act. Mr Browne seeks a costs order on the basis that the Commission failed to accept an offer of settlement which was as favourable as the orders made by the Tribunal. The Tribunal will then deal with Mr Browne's applications for costs under section 109 of the VCAT Act.

1. Section 112 of the VCAT Act provides circumstances where a failure to accept an offer of settlement by a party can displace the presumption against an order for costs contained in section 109(1) of the VCAT Act. For the presumption against costs to be displaced, the requirements of subsection 112(1) of the VCAT Act must be met.
2. Mr Browne relies upon a written offer to the Commission to settle the stay application on the basis of consent orders for a stay of the decision of 11 July 2025 and no order as to costs. The offer was contained in a letter dated 25 August 2025 (the '25 August 2025 offer'). Mr Browne also relies upon the Commission's failure to accept this offer. The Commission does not deny in its written submissions, that the 25 August 2025 offer was made by Mr Browne and not accepted. The Commission argues that it was not unreasonable to reject the offer, as it was no more than an offer to capitulate and the arguments put by Mr Browne in his 18 August 2025 submissions were not the factors considered critical by the Tribunal at the stay hearing.
3. Section 112 of the VCAT Act provides that the section only applies if the requirements of section 113 and 114 are met. One of the requirements of section 114 of the VCAT Act, is that the offer must be open for a minimum period of 14 days. Mr Browne's offer was dated 25 August 2025 and stated to expire at 4.00pm on 1 September 2025. The offer was therefore only open for a potential maximum period of one week, depending on the date of service on the Commission of the offer. As the requirement of section 114 of the VCAT has not be met, section 112 of the VCAT Act cannot be applied to the 25 August 2025 offer. Mr Browne's application for costs under section 112 of the VCAT Act cannot succeed.

Mr Browne also applied for an order for costs under section 109 of the VCAT Act. I will deal with each factors referred to in subsection 109(3) of the VCAT Act.

Whether the Commission conducted the proceeding in a way that unnecessarily disadvantaged Mr Browne

1. Mr Browne did not make any submission that the Commission conducted the proceeding in a way that unnecessarily disadvantaged Mr Browne. This factor is not relevant in the present application.

Whether the Commission unreasonably prolonged the proceeding

1. Mr Browne did not make any submission that the Commission conducted the proceeding in a way that unreasonably prolonged the proceeding. This factor is not relevant in the present application.

Relative strengths of the claims made by each party

1. Mr Browne made the following submissions regarding the issue of relative strengths of the parties' claims:

1. At the hearing on 30 September 2025, the Tribunal found in favour of granting a stay on each of the following grounds cited by the Applicant:

(a) Serious issue to be tried - this was patently obvious from the applicant's submission and affidavit material that raised a complete defence to the charges; > > (b) Prejudice to the Applicant - it was clear that without the stay, the money spent by the Applicant for the fine, costs and course cost would prejudice the Applicant; > > (c) Community and public interest - this is clearly outweighed by the prejudice suffered by the Applicant, and given the Applicant is licensed there is no threat to public safety and confidence. This is known by the Respondent. > > (d) Time until the hearing - this factor was already known to the Respondent from the directions hearing on 14 August.

1. In Ansell v Victorian Legal Services Board (Legal Practice) [2022] VCAT 1228, Senior Member Smither ordered costs of a stay application under s.109(3)(c) given the relative strengths of the parties' claims. 2. It is respectfully submitted that, having regard to the matters set out above, it is fair to order costs on the County Court scale on a standard basis.
2. The Commission's written submissions respond in detail, on this factor:
   1. The mere fact that the applicant succeeded in a stay application does not establish that the "relative strengths of the parties' claims" justify an award of costs. Ansell, relied upon by the applicant is illustrative of the extreme type of situation in which the Tribunal might award costs in a stay application. But Ansell was a very different case to the present. In Ansell, contrary to the applicant's submission, the Tribunal did not award costs merely "given the relative strength of the parties claims" Rather, it found at [66] that "when it came time for Mr Ansell to address the criteria applicable to a stay application, he made virtually no submissions relevant to that question..." such that he "should have waited until he was able to make a proper application." No such considerations arise here, where the respondent addressed each of the criteria relevant to the Tribunal's discretion as to whether to grant a stay, made proper concessions (such as accepting that there was a serious question to be tried) and did not advance any untenable position either in fact or law.
   2. That is, the applicant has not established that the relative strengths of the application warrant an order as to costs (let alone that the respondent's position was untenable).
   3. In this regard, given the broad discretion conferred on the Tribunal by s 50 of the VCAT Act, a decision on a stay application is necessarily one upon which reasonable minds can differ. That is particularly the case where an assessment of the public interest is required, an assessment which (in another context) has been described as a matter of "broad judgment and impression". In those circumstances, and where there is no suggestion (such as in Ansell) that the unsuccessful party to the stay application failed to present a proper case (such as by failing to address the relevant criteria), a stay application is not a suitable vehicle for the award of costs under s 109(3)(c). It is noteworthy that the applicant has not identified any case in which the Tribunal has ever awarded costs to a successful applicant for a stay.
   4. Indeed, the situation in respect of a stay application before the Tribunal is analogous to the position in the courts where an application is made for an interim injunction. Ordinarily, in the courts, the starting point is different to that in the Tribunal: a successful party is ordinarily entitled to its costs. However, even in the courts, the ordinary rule is that a successful applicant for an interim injunction will not be awarded its costs. Thus, the Supreme Court has said:

...it is common on the grant or dismissal of an application for an interlocutory injunction to order either that costs be in the proceeding, or reserved. That is in recognition of the fact that there may be various reasons why a party may fail at the interlocutory injunction stage, but nevertheless succeed at trial.

1. On the same basis, even absent s 109(1), the Tribunal ought not award costs. When s 109(1) is also considered, the position in the Tribunal strongly militates against an award of costs.

1. The Tribunal finds that the Commission had a weak case in opposing the stay application. The Tribunal would not go as far as to say its case was untenable. The relevant factors to be considered by the Tribunal all swayed the matter towards the granting of a stay. Mr Browne had indicated a factual case that, if he succeeded may have given him a complete defence to the disciplinary action. The immediate imposition of the fine, costs and the requirement to undertake an education course, would cause Mr Browne prejudice but a delay until the final hearing would cause the Commission little prejudice. If Mr Browne succeeded at the final hearing, he would be able to recover the fine and costs paid to the Commission but could not recover the lost time and expense of the education course. Mr Browne has continued to be licenced by the Commission, so there did not appear to be any issue of an immediate need to protect the public.
2. It might be expected that an experienced regulator would take these matters into account when deciding whether to oppose a stay of a decision. These factors weighed in favouring of granting an order for costs.
3. The Tribunal notes the Commission's submissions in relation to a stay being analogous to the position in the courts where there is an application for an interlocutory injunction. The Tribunal also accepts that at least in relation to a successful applicant for an interlocutory injunction, it is usual that any order for costs would be costs in the proceeding or costs reserved. There is not a direct analogy between a stay and an interlocutory injunction, due to the different nature of the proceedings, the subject matter of proceeding and the position of a regulator in a stay application having made the decision under review in contrast to a defendant who may have only recently turned their mind to the dispute encompassed by the litigation. However, the Tribunal does accept that the analogy is useful for the purpose of encouraging the Tribunal exercising caution in the use of the Tribunal's discretion under section 109 in relation to a stay application.

1. Neither party made direct submission as to the nature and complexity of the proceeding. The matters discussed above under the heading relative strengths of the claims made by each party, are relevant to this factor.

Any other matters the Tribunal considers relevant

1. As discussed above, Mr Browne relied upon the 25 August 2025 offer in relation to his application for costs. If an offer does not comply with the requirements of section 112 of the VCAT Act, it may still be considered as a factor under section 109 of the VCAT Act.
2. Mr Browne's submissions were that substantial costs were incurred by the applicant in the preparation of submissions, perusal of the Commission's submissions and preparation and attendance at the stay hearing. It was submitted that Mr Browne obtained orders from the Tribunal at least as favourable as the 25 August 2025 offer.
3. The Commission's submissions in relation to the 25 August 2025 offer, were as follows:
   1. The applicant also relies on its 25 August 2025 letter of offer as justifying an award of costs (and/or indemnity costs). While the basis for the applicant's reliance on that letter is not entirely clear, it is apparent that the applicant may contend that the respondent's failure to accept the offer was unreasonable and that this justifies an award of costs. Any such suggestion should be rejected. The offer was no more than an offer to capitulate, which it was not unreasonable to reject.
   2. In any event, many of the matters principally relied upon by the applicant in his 18 August 2025 submissions in support of a stay were not the factors considered critical by the Tribunal.
   3. In this regard, the applicant devoted considerable attention to an asserted denial of procedural fairness during the proceeding below (submissions, [45] - [57]) and primarily relied upon the prejudice said to be faced by publication of the decision (submissions, [58 - [60]], neither of which were considered by the Tribunal (the alleged procedural fairness being irrelevant to a merits review proceeding and the Tribunal not accepting that a stay could have any effect on publication). Nor did the Tribunal make any finding in its determination of the applicant's stay application to the effect (as asserted by the applicant in its letter) that the respondent had "no prospect of preventing a stay" or "no proper basis to justify its opposition". The respondent has a proper basis to justify its opposition, and the fact that the Tribunal determined in the exercise of its discretion to grant a stay does not establish anything unreasonable in the respondent's approach.

1. Mr Browne's submission was that the 25 August 2025 offer was not accepted. The Commission did not indicate that there had been any response to Mr Browne regarding the offer. As suggested by the Commission many of the arguments put forward by Mr Browne in the letter which included the offer were not the grounds on which the Tribunal granted the stay. The letter did also refer to the discussion at the directions hearing that the Commission's position on the stay in the circumstances of the case was 'uncommon', and this might have led to reflection by an experienced regulator of the factors relevant to the determination of a stay.
2. While the 25 August 2025 offer was as described by the Commission, a proposal to 'capitulate', the resolution of a stay application of such a decision has limited potential outcomes. Such an application often has not middle ground. The Commission could have responded to the offer with a compromise or with reasons why the offer was unreasonable. There is no evidence that it did so.
3. I consider the circumstances of this offer, there being no evidence of any response from the Commission and the ultimate outcome of the stay application, to provide some level of support for an order for costs being made in favour of Mr Browne.

Conclusion as to whether it is fair and reasonable to make an order for costs

1. The starting point in an application for costs under section 109 of the VCAT is the presumption that each party bears their own costs.
2. In this case, there are some matters which would support no departure from the usual position of there being no order for costs, such as the Commission's case not being in the category of no proper basis to justify opposition, the respondent's offer of settlement did not generally rely upon the matters relevant to the Tribunal's ultimate finding on the stay and the offer was a proposal for a capitulation by the Commission on the issue of a stay and that in the somewhat analogous situation of an application for an interlocutory injunction in the courts, a successful applicant would commonly not obtain an order for costs at the time of obtaining the interlocutory injunction.
3. Other matters weigh in favour of an order for costs against the Commission, including:
   1. the relative strengths of the claims and particularly the Commission's weak case in opposing the stay, and the relevant factors in the stay application each to some extent favouring the granting of a stay; and
   2. the Commission's approach in opposing the stay in the circumstances of the application, it being knowingly 'uncommon' to oppose the stay in the circumstances combined with the Commission's role as an experienced regulator and Mr Browne's offer to resolve the matter for which there was no evidence of a response and the offer being the same outcome as achieved before the Tribunal.
4. Having considered the totality of all relevant matters under section 109(3) of the VCAT Act, I am satisfied that it would have been fair to make an order under section 109 for costs of the stay application in favour of Mr Browne from 25 August 2025 up to and including 30 September 2025. The 25 August 2025 date is appropriate due to it being the date of the 25 August 2025 offer.
5. I am not satisfied that it would have been fair to make an order for costs on an indemnity basis.

1. I will order pursuant to section 109 of the VCAT Act that the Commission must pay Mr Browne his costs of the proceeding from 25 August 2025 up to and including 30 September 2025, with the costs to be assessed by the Costs Court, in default of agreement, on a standard basis on the County Court Scale of Costs as in force at 31 December 2024. Each party must otherwise bear their own costs of the stay application.