1. This lengthy proceeding was determined on 19 September 2011 when, following the publication of extensive reasons for decision, I ordered that the matter be re-listed before me for the hearing of further submissions concerning the orders to be made consequent upon the findings that I had made. I also reserved the costs of the proceeding for further argument.

1. The matter came back before me on 3 November 2011. Mr Clarke of Counsel appeared for the Applicant and Mr Watts of Counsel appeared for the Respondent.
2. After hearing submissions I informed the parties that, since some novel points had been raised I would provide short written reasons. These are now provided.

1. The first issue is one of costs. At the outset, it appears that costs have already been awarded during the interlocutory stages of the proceeding. In most instances, these awards were in favour of the Applicant and related to various failures of the Respondent to comply with orders and other procedural requirements. Those orders stand and can be enforced insofar as they might not have been complied with. There are some other orders reserving costs and I will need to decide who should pay those.
2. There are also the costs involved in making the order for sale and directing how that was to be carried out. It seems to me that neither party should have an order for costs relating to that part of the proceeding since it was open to either party as a co-owner of the subject land to make application for an order and both parties benefited from the order. There is therefore no factor to displace the prima facie rule set out in s.109(1) of the Victorian Civil and Administrative Tribunal Act 1998 ("the Act") that parties pay their own costs. What I am concerned with are the costs arising following the making of that order.
3. Both parties referred to and relied upon the provisions of 109 of the Act which, where relevant, are 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.

1. Both Counsel referred me to the decision in Vero Insurance Ltd v Gombac Group [2007] VSC 117 where Gillard J said (at paragraph 20)

"The Tribunal should approach the question of entitlement to costs 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" (Emphasis in the original judgment).

1. Mr Watts referred to two authorities to the effect that, in considering whether it is fair to make an order for costs, regard can be had to a practice that has developed in the Tribunal that costs are routinely awarded in a particular type of proceeding. Those cases are _Sweetfail Pty Ltd v Minister for Plannin_g [2004] VCAT 2000 at paragraph 19 and Alphaprint Pty Ltd v Streamline Partitioning [2000] VCAT 398.
2. The legislation does not contemplate that the Tribunal should routinely award costs in any particular type of case. However, because of the considerations set out in sub-section (3), cases of a particular type will commonly answer to the criteria set out in that sub-section. Hence, cases such as building cases and cases in this List involving difficult questions of law will commonly attract an order for costs, not because they are cases in a particular List but because of the matters set out in sub-section (3).
3. I was referred to a number of other authorities but it seems to me that the most relevant factor of those set out in subsection (3) is the nature and complexity of the proceeding. The complex factual questions, the legal issues and the length of the trial resulting in the very large costs undoubtedly incurred on both sides of conducting these proceedings would suggest that this is a case where it would be fair that a successful party should have an award of costs:
4. Since both parties sought orders for costs it appears to be common ground that this is an appropriate case in which costs ought to be awarded but I have regard to the factors referred to in the authority cited.

1. Mr Clarke said that the Applicant had been successful in that I found that the Respondent's counterclaim was not proved and that he was therefore entitled to the money standing to his credit and in his name in Miss Brondolino's trust account. He submitted that had he not brought these proceedings he would have received nothing.
2. I do not think that follows. The money was in Miss Brondolino's trust account and she would, as a solicitor, have to account to him for it. There was no evidence that he ever asked for it although, despite Mr Clarke's suggestion to the contrary, he must have known that the money or some money was there. It was not necessary for him to issue these proceedings in order to recover money standing to his credit in a solicitor's trust account. That is not the purpose of this part of the Property Law Act 1958 and although the Respondent consents to the amount being taken from the money in the account held by the Principal Registrar it seems to me that he is recovering this money, not as a result of these proceedings, but because it was his anyway and he had simply not asked for it. In this proceeding Miss Brondolino was seeking to claim a lien over the money on account of the subject of her counterclaim but the counterclaim was not seriously prosecuted.
3. Finally, very little time of the hearing was taken with the counterclaim. It was mentioned in passing a number of times but no evidence was led to substantiate it and no argument was directed towards establishing it.

1. Early in the proceedings an offer was made to Miss Brondolino by letter from the Applicant's solicitors asking her to agree to provide certain discovery and information in exchange for which the Applicant would consent to orders resolving the accounting procedure which was sought in the original application.
2. The claim for an account was abandoned during the hearing and it does not seem to me that if the Respondent had agreed to the proposal the proceeding would have been shortened or resolved at an earlier stage. It is highly unlikely that the Applicant would have been satisfied not to pursue his many other claims against the Respondent which he continued to pursue throughout the proceeding with great vigour.

1. Mr Clarke complained that many of the documents that came to light had not been discovered by the Respondent. However the documents that he referred to were in the possession of other people and the Respondent's own copies had been lost. No order was made for discovery in the Court form, requiring disclosure of documents that were no longer in the possession of the Respondent.
2. The difficulty with discovery arose from the fact that the Applicant brought this proceeding so many years after the relevant events had occurred. Mr Clarke said that this was because the Applicant trusted the Respondent and had no reason to doubt that she was acting in his best interest. However they fell out a number of years ago and no application was brought then. The difficulty with discovery is principally the fault of the Applicant in not having brought his proceeding in a timely manner.

1. Mr Watts submitted that the Respondent had been largely successful in the proceeding in that she had defeated no less than fourteen allegations of fraud brought against her by the Applicant. The only part of the proceeding in which she did not succeed was her counterclaim which, although not withdrawn, was not pressed at the trial. I agree that the Respondent was the successful party.
2. Answering and, finally, defeating the Applicant's claims involved an enormous amount of difficult factual enquiry and compilation of evidence in order to reconstruct factual scenarios and events many years past. The expense of engaging Counsel and the time taken by the Respondent and her staff to carry out that sort of work must have been very substantial indeed. Further, the legal questions in the case were both numerous and difficult. The final reasons for decision extended to 43 pages. The nature and complexity of this proceeding is therefore such as to make it fair to make an order for the Respondent's costs.
3. In addition, there is sub-section (c) and the fact that I found that the Applicant's claim had no tenable basis in both fact or law in regard to the numerous allegations of fraud that he made against the Respondent who is a solicitor. The evidence led not only failed the Briginshaw test. There was simply no evidence at all of fraud. The allegations were of such a serious nature, particularly in view of the fact that the Respondent is a solicitor, that they had to be defended with great vigour and with great care.
4. For these reasons, it is appropriate to make an order for costs in favour of the Respondent against the Applicant for the general costs of the proceeding following the order for sale which was made on 11 July 2008.

1. I turn now to the costs of the various interlocutory proceedings that were reserved. The costs of the application of 11 July 2008 should, as stated, be borne equally by the parties and so there will be no order as to those costs. Having considered the matters raised in argument I find that the following costs should be paid by the Respondent to the Applicant:

1. The costs reserved on 10 September 2008 2. The costs reserved on 23 February 2009

1. The costs reserved on 19 June 2009.
2. All other interlocutory reserved costs should be paid by the applicant to the Respondent, either as costs in the cause or costs that ought to be borne by the Applicant because of the circumstances of the particular interlocutory proceeding.

1. Mr Watts seeks an order for costs on the Supreme Court Scale. Mr Clarke submits that they ought to be on County Court Scale "D" in accordance with the usual practice of the Tribunal.
2. I think that the Supreme Court Scale more accurately reflects the nature and complexity of this proceeding and is a more appropriate compensation to the Respondent for the costs that she has incurred in defending such serious allegations.

1. There is a claim by both sides for interest. Mr Clarke calculated, interest in accordance with the Penalty Interest Rates Act 1983 on the monies held by the Respondent in her trust account at $22,584.27. Being money in a solicitor's trust account, it has not attracted interest. He says that under s.233 of Property Law Act 1958 interest can be awarded as being damage caused by the unreasonable use of the land (s.233(2)(d)) or as a payment by a co-owner of more than his share (s.233(2)(c).
2. I do not believe that either of those sections empowers me to make an order for the payment of interest upon money in a solicitor's trust account that the Applicant never asked for, despite the nature of the money at the time that it was paid into that account. It does not appear to answer the description in either sub-section. This is a statutory jurisdiction and extends only so far as the section allows. In the absence of some specific provision entitling me to award interest I cannot do so.
3. Mr Watts also claims interest on the balance of the purchase money or the Respondent's share of the subject land that has been lying idle in the account kept by the Registrar, attracting no interest. He relied upon s.234(b)(1) of the Act, which provides:

"In any proceeding under this division, VCAT may make any order that it thinks fit to ensure that a just and fair accounting of monies received by co-owners in respect of the land or goods occurs".

1. Mr Watts submitted that a just and fair accounting under the section would entail the Tribunal having the power to make an adjustment to take into account interest or damages in the nature of interest.
2. It seems to me that the power to make orders to ensure a just and fair accounting of monies received by co-owners relates to an accounting of monies received, not interest on those monies that has not been received.
3. A claim for interest must either be made pursuant to some statutory entitlement, or as damages suffered as a result of being deprived of the money. I am exercising a statutory jurisdiction which is limited by the terms of the statute. This is a not a claim for damages and the amounts that I am ordering to be paid out of the account held by the Principal Registrar are not ordered to be paid out as damages. As such, I am not satisfied that I have power to make an order for interest either under the section referred to or pursuant to the principles set out in Hungerfords v Walker (1989) 171 CLR 124, which was the alternate basis of Mr Watts' claim.

1. The amount standing to the credit of the account held by the Principal Registrar is $453,784.22. As requested by the parties I will order that, of that sum, an amount of $67,107.62, representing $61,006.93 rental and $6,100.69 GST, be paid to the Applicant. The balance of the said money shall be paid to the Respondent.
2. Order that the Applicant's costs reserved on 10 September 2008, 23 February 2009 and 19 June 2009 be paid to the Applicant by the Respondent. Save as aforesaid, order the Applicant to pay the Respondent's costs of this proceeding, including all reserved costs, on and from 12 July 2008. All such costs, if not agreed, are to be assessed by the Costs Court in accordance with the Supreme Court Scale.