1. The Applicant submits that the BAB should 'consider the commercial enterprise and development gain (which variously the Interested Parties and the Respondent were engaged in) as against the Applicant's status as simply the owner of the [A]djoining [P]roperty, with no interest as to the development occurring'.[17]
2. The Applicant claims costs fixed in the sum of $23,154, which is the total sum of the invoices set out in Schedule A to the Applicant's Submissions. Alternatively, the Applicant submits that 'if the Board is not minded to fix the Applicant's costs, ...the Board should exercise its discretion to award costs on a standard basis, to be taxed in default of agreement'.[18]

1. The Respondent opposes the Applicant's application. The Respondent submits that the Applicant's grounds do not demonstrate any basis for the BAB to depart from the position that parties bear their own costs.[19]
2. In support of his position, the Respondent submits that, inter alia:

(a) there was no determination of the appeal on its merits. Rather, the Determination was quashed because the subject matter of the dispute had 'fallen away', because the building permit application had been withdrawn;[20]

(b) when the protection work notice was issued, the Respondent was 'justifiably...of the view that the Protection Works... were appropriate in all of the circumstances';[21]

(c) the Respondent's conduct does not give rise to any inference that he acted in a manner 'which could be construed as being vexatious, obdurate and/or unreasonable';[22]

(d) the Applicant has not provided any basis to suggest that the Respondent acted inappropriately or that the report he prepared is 'tainted by bias';[23]

(e) disagreement with consent orders does not necessarily give rise to an entitlement to costs, and the 'debate between the parties' essentially centred around whether any further orders should be made and/or whether the continued debate about academic matters was necessary in the circumstances'. The Respondent submits further that the Question that came before the BAB was 'academic' as the subject matter of the dispute had fallen away.[24]

1. In my view, the Applicant has not demonstrated that there are grounds to depart from the general rule that the parties bear their own costs in matters before the BAB in respect of the claim made against the Respondent.
2. The Applicant relies on alleged 'departures from expected professional standards' on the part of the Respondent. Further, the Applicant refers to, inter alia, failings in the protection work notice, and the fact that the Respondent prepared an expert report.
3. However, as a result of the application for the building permit being withdrawn, the BAB made no findings about the above matters. The only substantive issue that was resolved by the BAB was the Question, and answering the Question did not require any findings to be made about the conduct of any party.
4. Further, resolution of the Question was needed because the parties were unable to agree on appropriate orders notwithstanding that the building permit application had been withdrawn. Of course, the Applicant was within her rights to continue with her application in these circumstances, but it does not follow that the Respondent should be required to pay her costs. I do not consider that the circumstances are such as to override the general rule that the parties bear their own costs.
5. Therefore, the Applicant's application that the Respondent pay her costs is refused.

1. The First Interested Party did not file any submissions in respect of the application for costs made by the Applicant.
2. Many of the issues set out above in respect of the Applicant's claim against the Respondent also apply to the claim against the First Interested Party. In particular, no findings about the substantive matters in dispute were made because the building permit application was withdrawn.
3. Further, I do not accept that 'the involvement and the approach adopted by the First Interested Party has added significant difficulty and expense to the proceeding'.[25] The Determination the subject of the substantive appeal was made on 19 January 2024. The Applicant was notified that the application for the building permit was withdrawn on 11 June 2024. I do not consider that the conduct in this approximately five-month period was such as to add significant difficulty and expense to the proceeding.
4. Once the building permit application had been withdrawn, the parties acknowledged that the building work the subject of that application would not be proceeding.[26] Therefore, while the Applicant was entitled to have the BAB consider and determine whether the Determination should be quashed, and indeed the Determination was subsequently quashed, that decision was based on the fact that the Determination had been rendered irrelevant.[27] The costs incurred after it was clear that the building permit application had been withdrawn could have been largely avoided had the parties agreed appropriate orders to bring the appeal to an end. I do not consider the fact that the parties were unable to agree such orders justifies a departure from the general rule that the parties bear their own costs.
5. Further, notwithstanding that the Adjoining Property was owned by the Applicant from 23 January 2024 (that is, four days after the Determination was issued), the costs incurred until 17 September 2024 (that is, until well after notification to the Applicant that the building permit application had been withdrawn) were incurred by the Second Interested Party.[28] I have no evidence before me that the Applicant indemnified or otherwise repaid the Second Interested Party those costs. While I accept that the Applicant is a director of the Second Interested Party, the shares in the Second Interested Party are owned by Caligula Nominees Pty Ltd, and the Second Interested Party is a separate legal entity from the Applicant. In those circumstances, and notwithstanding that I am not satisfied that it is justified to depart from the general rule that parties bear their own costs, I would have had difficulty in accepting that an order should be made requiring the First Interested party to pay the Applicant costs not incurred by her.
6. Therefore, the Applicant's application that the First Interested Party pay the Applicant's costs is refused.

[1] Applicant's Cost Submissions Dated 11 April 2025, [1].

[2] [2001] VSC 349.

[4] [2007] VSC 54.

[26] Carew v Casey & Ors [2025] VBAB 18 [40] (Preliminary Determination).

[28] See invoices of TDL Legal dated 7 February 2024, 20 February 2024, 6 March 2024, 19 July 2024 and 17 September 2024 in Schedule A of the Applicant's Submissions.