RESPONDENT'S SUBMISSIONS IN DEFENCE TO THE COSTS CLAIM

1. The Respondent made the following submissions in response to the costs claim:

(a) The Applicant has not satisfied the requirement of a just or reasonable basis in which the BAB may make an order for costs in favour of the Applicant and depart from the usual position on costs.

(b) The Applicant's failure to inform herself of the new fee waiver position is not a basis to award costs against the Respondent.

(c) The disparities between the financial resources of each party is not a basis to award costs.

(d) The prior proceedings are not relevant to a question of costs.

(e) Although the BAB quashed the Respondent's Form 9 Determination, something more is required for an order for costs other than being a successful party.

(f) The Applicant has not identified a conduct issue on behalf of the Respondent and nor did the BAB make findings of this nature against the Respondent.

(g) The BAB made its determination with material that was not before the Respondent at the time of making his Form 9 Determination.

1. The Interested Party made the following submissions in response to the Applicant's cost claim made against her:

(a) The Applicant made many immaterial claims against the other parties to the proceeding and has not provided evidence that the conduct of those parties would make it just in the circumstances to award costs of the proceeding against the Interested Party.

(b) The Applicant reiterated claims that were dismissed during the proceedings and speculated on the income of the other parties to the proceedings which bears no relevance to the question of costs.

(c) The BAB's Determination made no findings of inappropriate conduct by the Respondent in relation to the Form 9 Determination.

(d) The Interested Party undertook all reasonable measures to productively engage the Applicant in the protection work to avoid delays associated with litigation.

(e) The concerns raised by the Applicant's engineer were addressed on provision of additional material.

(f) The BAB made findings in relation to temporary stormwater management, waterproofing of the party wall and outstanding concerns with deflection caused by bracing of the upper walls. The Applicant's expert however found no issues with these items in his report dated 17 July 2024.

(g) Given the level of consultation and expert evidence, it is reasonable to conclude the Interested Party has not engaged in misconduct and the Determination that was made had a reasonable basis in law and expert evidence at the time it was made. The BAB was also able to consider material which was not before the Respondent at the time of making his decision.

(h) The appeal was against the Form 9 Determination and outside the control of the Interested Party. This would not ordinarily support a claim for costs of the proceeding against the Interested Party who has no control over the subject of the appeal.

(i) The Applicant has not established that it would be just in the circumstances to award costs against either the Respondent or the Interested Party.

1. We will review the factors which may indicate it is just in the circumstances to award costs prior to considering the claim for waiver and the claim for costs of the hearing.

Factors which may indicate it is just in the circumstances to award costs

1. The BAB has previously had regard to other jurisdictions which are 'bear own costs' jurisdictions, in n particular the Victorian Civil and Administrative Tribunal (VCAT). Under s 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 that tribunal may exercise a discretion to award costs after giving consideration 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; and

(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; and

(e) any other matter the Tribunal considers relevant.

1. Whilst the BAB is not bound by these considerations, we take the view they are relevant considerations and may be guided by them in determining whether it would be 'just' to exercise a discretion to award costs. This is applicable in circumstances where there is little other legislative or common law guidance provided to the BAB on when it may be 'just' to exercise the discretion.
2. The BAB has previously considered and accepted the usefulness of the Supreme Court of Victoria decision of Re Munro (Costs)[3] in considering costs. In the Re Munro (Costs) case, the Court provided an outline of general costs principles and when costs should be awarded. The Supreme Court possesses a wide discretion in relation to awarding costs which may also provide guidance here. The following general principles identified by the Court we believe have some general application to applicants for costs before the BAB, although we stress that we must distinguish this jurisdiction from the Supreme Court's in so far as it is a 'bear own' costs jurisdiction. We further note that the Supreme Court was considering costs over and above the ordinary order for costs.

(f) ... An award [for] costs over and above the ordinary is reserved for cases where the losing party[4] has engaged in unmeritorious, or deliberate or high-minded or other improper conduct such as to warrant the Court showing its disapproval and at the same time preventing the successful party being left out-of-pocket; and

(g) encompassed in unmeritorious or improper conduct is the unsuccessful party proceeding where, properly advised, they should have known that they had no real prospect of success, or allegations were made which ought never to have been made or the undue prolongation of a case by groundless contentions. In such cases, the action must be presumed to have been commenced or continued for some ulterior motive, or because of some wilful disregard of the known facts or the clearly established law.[5]

1. The Applicant has made application for a waiver of the prescribed fees.
2. Regulation 274A of the Building Regulations 2018 (Regulations) states that:

(1) A person is exempt from having to pay the whole or part of a fee payable to the Building Appeals Board, which is prescribed under this Part, if any of the persons referred to in subregulation (2) is satisfied that payment of the whole or part of the fee will cause the person to suffer financial hardship.

(2) For the purposes of subregulation (1), any of the following persons may decide that a person will suffer financial hardship if the person is required to pay the whole or part of a fee payable to the Building Appeals Board under this Part -

(a) the chairperson of the Building Appeals Board;

(b) the deputy chairperson of the Building Appeals Board;

(c) the Registrar of the Building Appeals Board.

1. Accordingly, Chairperson Reigler, Deputy Chairperson Lodge and Registrar Finlay are the only members of the BAB who may provide a waiver of a fee in whole or in part if satisfied that payment of the fee in whole or part would cause the person to suffer financial hardship.
2. We are aware that the matter of waiver has previously been decided by the Registrar of the BAB in the decision in Re Browne[6] [2025] VBAB 12 on 3 February 2025 by Registrar Finlay who is duly authorised under the Regulations.
3. The Registrar determined the waiver could not be applied on the basis that the fee had already been paid.
4. The BAB members currently empanelled to hear the costs proceeding are unable to grant a waiver under the Regulations. However, this fee can be considered as part of costs of the hearing pursuant to cl 16 Schedule 3 of the Act.

1. There are two claims for the costs of the proceeding, the first is against the Respondent and the second is against the Interested Party. We will have regard to both claims.

1. The Applicant has raised several allegations against the Respondent relating to postal service and service of documents. This issue was dealt with in the substantive determination with no adverse findings made against the Respondent. Given this, it is not a ground on which costs could be successfully argued.
2. The Applicant's submissions regarding prior proceedings are not relevant to a finding of costs in these proceedings, as the BAB looks at the conduct of parties in the relevant proceeding for which costs are claimed.
3. The Applicant argued that the fact the BAB quashed the Form 9 and to create a deterrence against incorrect future Form 9 decisions should be a basis for an award of costs in her favour. As noted above, the case law confirms that something more than being successful is warranted to make it just in the circumstances to award costs. Further, an award for costs is not punitive and not to be used for deterrence purposes. This is not a factor which makes it just in the circumstances to award costs.
4. The Applicant claimed disparities in income between herself and the Respondent and Interested Party. Personal circumstances of the parties are not relevant to a finding of whether it would be just in the circumstances to award costs.
5. We further note the Respondent's conduct during the course of the proceeding does not give rise to any factor (such as those noted above) which may make it just in the circumstances to award costs.
6. We do not find there are grounds which make it just in the circumstances to award costs against the Respondent.

1. The Applicant made multiple claims against the Interested Party in relation to grounds on which to make an award for costs.
2. We take the view that the costs claimed by the Applicant are to do with the issuing of proceedings, and that there are no costs claimed for protracting the duration of the proceeding or exacerbating the expenses incurred by the Applicant
3. The Applicant has raised issues such as the Interested Party asking whether Member Irwin could provide a preliminary view on material filed, and the accessibility of files sent as part of an exchange. These issues were dealt with through the Registry of the BAB and did not cause appreciable delays. Further, we do not consider a layperson seeking information as to what may be appropriate procedural steps as a ground which would make it just in the circumstances to award costs against them.
4. The Applicant raised matters relating to the tarpaulin, but these are not matters which caused delays or other issues in conducting the proceeding.
5. The Applicant criticised the Interested Party for needing to be asked twice for material. We note that this could, depending on the precise circumstances, be a ground for costs due to delays. However, in these circumstances the Interested Party was reliant on her experts and was making efforts to respond to the information requests. The Interested Party was reliant on the advice of her experts and was not attempting to delay proceedings. She provided responses within time but the BAB considered it appropriate or necessary for her to provide more fulsome responses.
6. The BAB also notes that ultimately the Interested Party neither made the Form 9 determination nor did she have control over whether the Form 9 determination was maintained in the appeal proceeding.
7. Further, the BAB does not consider that there is sufficient evidence to demonstrate the Interested Party conducted herself in a manner which would make it just in the circumstances to award costs.
8. Given this, we do not consider the Applicant has established that it would be just in the circumstances to make an award for costs against the Interested Party.

[1] Stewart v Building Practitioners Board and Anor [2001] VSC 349.

[2] Martin v Fasham Johnson Pty Ltd [2007] VSC 54.

[3] [2019] VSC 243.

[4] As noted earlier in these Reasons, unlike the Supreme Court, there has to be something more than being a losing party in a costs bear own jurisdiction to make an adverse costs order against that losing party.