Australian Consumer Law and Fair Trading Act 2012 (Vic) sections 216 and 217 - orders which can be made by VCAT; Damages for breach

Damages for distress and anxiety, aggravated damages

Margaret Chamberlain (Executor of the Estate of the late Geoffrey Smith)

Nicole Guymer (Executor of the Estate of the late Irene Jones)

Illawong Lakeside Retirement Pty Ltd (ACN: 005 482 673)

Chamberlain v Martyniuk (Civil Claims) [2018] VCAT 9

1. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the first respondent, Vladymir Martyniuk in his personal capacity shall pay to the third applicant, Eva Lane the sum of $31,064.78, being $28,564.78 in general damages and $2500.00 in aggravated damages.
2. Pursuant to section 216 of the Australian Consumer Law and Fair Trading Act 2012 (Vic), the first respondent, Vladymir Martyniuk in his personal capacity shall pay to the sixth applicant, Nicole Guymer (Executor of the Estate of the late Irene Jones) the sum of $26,091.58 in general damages.
3. The first respondent, Vladymir Martyniuk to pay the costs of Eva Lane and Nicole Guymer (Executor of the Estate of the late Irene Jones) in this proceeding including reserved costs. These costs shall to be assessed by the Costs Court on a standard basis under the County Court Scale.
4. The applications of First and Second applicants, Margaret Chamberlain and Margaret Chamberlain (Executor of the Estate of the late Geoffrey Smith) are dismissed.
5. The claim by the fourth applicant is withdrawn.

1. For ease of reference, in these reasons:
   • (i) the applicant Eva Lane is referred to as Mrs Lane and the applicant Nicole Guymer (Executor of the Estate of her mother the late Irene Jones) is referred to as Mrs Guymer
   • (ii) the first respondent Vladymir Martyniuk is referred to as Mr Martyniuk and the second respondent, Illawong Lakeside Retirement Pty Ltd is referred to as ILR
   • (iii) Illawong Lakeside Retirement Village is referred to as the Retirement Village
   • (iv) Illawong Retirement Equity Pty Ltd is referred to as IRE
   • (v) the Australian Consumer Law is referred to as the ACL
   • (vi) the following acronyms are used in relation to the Victorian legislation specified below:

VCAT Act Victorian Civil and Administrative Tribunal Act 1998

RV Act Retirement Villages Act 1986

ACL & FT Act Australian Consumer Law and Fair Trading Act 2012

1. When these proceedings commenced in March 2016 there were five applicants who were either residents of the Retirement Village or the executors of the estates of former residents of the Retirement Village. On 11 August 2016 the sixth applicant who is the executor of the estate of a former resident of the Retirement Village joined the proceedings.
2. The first respondent, Mr Martyniuk is the manager of the Retirement Village and when the proceedings were commenced he was the sole director of the second respondent, ILR which owns the land on which the Retirement Village is situated.
3. The applicants were all dissatisfied with the management of the Retirement Village and had been attempting to obtain from the management documents the management was legally obliged to provide, which were necessary to deal with the applicants' interests in the units they occupied at the Retirement Village.
4. On 18 May 2016 the respondents by consent were ordered to provide documents to the first four applicants.
5. On 11 August 2016 the Tribunal (differently constituted) declared Mr Martyniuk in breach of s18BC of the RV Act (failing to make available for inspection the requested documents) and ordered Mr Martyniuk provide to the applicants the documents they sought.
6. Mr Martyniuk did not comply with that order.
7. On 24 February 2017, in proceedings brought by other residents at the Retirement Village, the Federal Court amended the Articles of Association of ILR which enabled the appointment of additional directors to ILR. Three additional directors who were residents (or family members of residents) of the Retirement Village were subsequently appointed. The new directors have provided to the applicants the documents they sought in these proceedings.
8. On 26 August 2017 the first, second, fourth and fifth respondents were directed to write to the Tribunal and all other parties stating equivocally whether they wish to proceed with their claim or withdraw their claim.
9. On 12 September 2017 the fifth applicant's solicitors wrote to the Tribunal advising he wished to withdraw from the proceeding. That withdrawal was acknowledged in the Tribunal's order dated 12 October 2017.
10. At the hearing on 13 November 2017 there was no appearance on behalf of the first and second applicants and accordingly the Tribunal dismisses their application.
11. There was no appearance by the fourth applicant at the hearing on 13 November 2017. On 21 November 2017 the Tribunal received a letter from the fourth applicant's brothers who hold a joint power of attorney advising that the fourth applicant would not be pursing legal action with Soho Lawyers and was withdrawing her claim.
12. The third applicant, Mrs Lane whose daughter Ms Margaret Orr was bringing the proceedings on her behalf was represented throughout the proceedings and at the hearing by Ms Mahony, of Soho Lawyers.
13. The sixth applicant, Mrs Guymer has been represented by Soho Lawyers for part of the proceedings but at the hearing appeared in person.
14. At the hearing both applicants confirmed they had received the documents they sought in these proceedings and were only pursuing damages and costs. Mrs Lane was only pursuing damages and costs against the first respondent, Mr Martyniuk and Mrs Guymer was seeking damages and costs against both respondents.
15. The second respondent was represented at the hearing by Mr Croom who was one of the directors appointed as a consequence of the Federal Court proceedings. He has been a director since 6 April 2017.
16. In proceeding C6761/2017 which was heard jointly with this case the second respondent sought to be indemnified by the first respondent in respect of any order of costs or damages made against it in these proceedings.
17. The first respondent did not appear at the hearing.

1. Both applicants claim that Mr Martyniuk was the manager of the Retirement Village and solely responsible for its administration. As a consequence of his failure to provide documents that he was required to provide under the RV Act they were unable to sell their interest in their units. Despite their units being vacant and ready for sale, because they were unable to sell them they continued to incur costs namely; municipal rates, quarterly maintenance fees, insurance and utilities costs. In addition Mrs Lane had to in effect borrow money to cover her accommodation costs at a residential aged care facility (nursing home) as she was unable to utilise the proceeds of the sale of her unit towards the accommodation bond.

1. On behalf of the applicants sworn evidence was given by Mrs Orr and Mrs Guymer. Their evidence is referred to in paragraphs 41-84 below. A large number of documents were also provided to the Tribunal.
2. Stage 1 of Retirement Village consists of 44 residential units. The registered proprietor of the land is ILR. Until 6 April 2017 Mr Martyniuk was the sole director of ILR.
3. Numbered shares in ILR were sold to purchasers who were then entitled to occupy specified residential units within Stage 1 of the village. The Articles of Association for ILR give occupancy rights to shareholders according to a specific schedule. The residents do not own the title to the land.
4. A condition of the purchase of shares in ILR was agreement to enter a management agreement, with IRE. Mr Martyniuk is the sole director and shareholder of IRE.
5. As manager, IRE undertakes the obligations of ILR and, in return, IRE is paid a fee by ILR. The Articles of Association for ILR stipulate that each shareholder shall pay a percentage of the fee charged by IRE. The relevant percentage is calculated according to the entitlement flowing from the particular shareholding. It has been the practice of ILR to charge the fee on a quarterly basis.

1. Until 6 April 2017 Mr Martyniuk had sole and direct control over ILR and still has sole and direct control over IRE.
2. Mrs Lane owns shares in ILR which entitles her to occupy Unit 3. Mrs Lane now resides in a nursing home. Mrs Lane needs to sell her entitlement in the unit in order to pay for the accommodation bond at the nursing home as well as ongoing living expenses.
3. Mrs Orr acting under her enduring power of attorney, requested that Mr Martyniuk provide the factsheet relating to the Retirement Village in accordance with s 18A(1) of the RV Act in March, June, September and October 2015. In January 2016 her lawyers requested Mr Martyniuk to provide the factsheet and documents required under section 19 of the RV Act. Mr Martyniuk failed to provide these documents.
4. Mr Martyniuk and his companies were brought before the Supreme Court of Victoria on an application by the Director of Consumer Affairs Victoria in respect of the failure to provide the factsheet. He was ordered to do so on 29 April 2016.
5. On about 18 May 2016 Mr Martyniuk provided a factsheet that was not factually correct and verifiable. The Supreme Court proceedings ended in an application by Director of Consumer Affairs Victoria to hold Mr Martyniuk in contempt.
6. In December 2016, Consumer Affairs was still seeking a factually correct and verifiable factsheet from Mr Martyniuk through his solicitors. This was never provided by Mr Martyniuk.
7. In June 2017, following the appointment of three further directors to ILR, Mrs Orr was eventually provided a factually correct factsheet in respect of Mrs Lane's unit.
8. Mrs Lane seeks the loss and damage suffered by reason of her inability to sell her unit against Mr Martyniuk for the period from when the factsheet was first requested from Mr Martyniuk as manager of the Retirement Village, to the date where Mrs Lane was provided sufficient documentation to be able to sell her unit, being March 2015 to June 2017.
9. As a result of the contraventions of the RV Act by Mr Martyniuk, Mrs Lane has not been able to sell her entitlement to the unit in the Village. The losses incurred include:
   • Quarterly fees paid to ILR;[1]
   • Rates, utilities and service charges;
   • Loss of opportunity to sell to the units to potential purchasers who have now been lost; and
   • Incursion of interest payments on bonds for nursing home care payable as a result of not being able to sell the unit to pay the bonds.
10. Mrs Lane seeks damages of $28,564.78.
11. Further Ms Lane seeks an award of exemplary and/or aggravated damages against Mr Martyniuk of $10,000.

1. On about 9 July 2010 Mrs Jones entered into a contract to purchase shares in ILR which would have entitled her to occupy Unit 2. Mrs Jones paid the purchase price and signed a management agreement with ILR and IRE. Mrs Jones was never provided with a share certificate evidencing her ownership of the shares and the transfer of shares was never registered. Mrs Jones died on 8 February 2015. Her daughter, Mrs Guymer, is the executor of her estate. Prior to Mrs Jones' death both she and Mrs Guymer made repeated requests for the transfer be registered and a share certificate provided to Mrs Jones (or her Estate). The Estate wishes to sell her shares as the unit has been vacant since Mrs Jones's death. Mr Martyniuk never provided the share certificate to Mrs Jones or her estate. ILR only provided the share certificate after the appointment of the new directors in April 2017.
2. Mrs Jones has been denied the rights of an owner to deal with her entitlement and in particular sell her entitlement to the unit. Mrs Guymer was more concerned with obtaining proof of Mrs Jones ownership of the shares and so was less focussed on obtaining the factsheet and disclosure statement. These documents were requested in June and August 2016. Mr Martyniuk never provided these documents. ILR only provided the documents after the appointment of the new directors in April 2017.
3. Mrs Guymer was provided with the share certificate and factsheet on 27 June 2017 and with the disclosure statement on 16 July 2017.
4. Mrs Guymer seeks the loss and damage suffered by reason of her inability to sell her mother's unit from the date of her mother's death on 8 February 2015 to the finalisation of the proceedings against Mr Martyniuk and IRL namely:
   • Quarterly fees;
   • Liability for deferred management fees;
   • Loss of opportunity to sell the entitlement to the unit to potential purchasers who have now been lost;
   • Utility costs incurred and paid.
5. Mrs Guymer seeks damages against Mr Martyniuk and ILR of $34,651.22 and she also seeks an indemnity against Mr Martyniuk and ILR with respect to liability for deferred management fees and body corporate fees (maintenance fees).

1. Mrs Orr told the Tribunal that her mother Mrs Eva Lane was aged 94 and she is assessed as needing high level care. Mrs Lane is an insulin dependent diabetic, has poor eyesight and memory problems. She lived in Unit 3 at the retirement village for 17 years and was very happy there. She owned shares in ILR which gave her the right to occupy the unit. When it became clear that her mother was unable to look after herself Mrs Orr made arrangements for her mother to enter residential aged care. Mrs Orr said that her mother had worked hard throughout her life to be financially self-sufficient and prior to entering aged care her assets were $130,000 and her interest in the unit. Her only income is the age pension.[2]
2. In order to enter residential aged care Mrs Lane was required to pay a bond and also a daily fee. Mrs Lane paid $100,000 towards the bond of $250,000 which meant that she was charged interest on the outstanding amount. Mrs Orr believed this interest was at the rate of 6.65% per annum. At the time her mother went into residential aged care Mrs Orr thought that the balance of her mother's funds would tide her over until her interest in the unit could be sold and the bond fully paid. Once the bond was fully paid her mother would no longer have to pay interest.
3. She said that once her mother went into a nursing home she wanted to sell her mother's entitlement in the unit as soon as she could. So in late March 2015 she telephoned Mr Martyniuk and requested the documents she needed to sell the shares in ILR. He informed her he was working on the documents she needed. She telephoned him on a few further occasions and he always told her he was working on them and she would have them in a couple of weeks.
4. The only time Mrs Orr spoke to Mr Martyniuk in person was on 17 June 2015 when he told her that he was not sure that he would be able to provide the documents.
5. She produced an email dated 20 June 2015 to Mr Martyniuk which referred to their previous telephone conversation in March and the meeting in June. In that email she confirmed her mother was being charged interest for her accommodation at an aged care facility and her mother's unit needed to be sold urgently. She requested that he prepare the disclosure statement needed to sell the unit. Mrs Orr received no response to that email.
6. Mrs Orr spoke to a local real estate agent about selling the unit and explained that she was having problems getting the paperwork from Mr Martyniuk. That real estate agent and a second real estate agent endeavoured to obtain the documents from Mr Martyniuk and one agent even offered to prepare the paperwork for him but they were unable to get a response from him.
7. On 13 January 2016 her solicitors wrote to Mr Martyniuk. She produced that letter which requested the factsheet, management contract, the by-laws, residence contract, and any other prescribed documents. That letter stated in part:

We are instructed that 3 potential purchasers have been lost for Eva Lane's unit due to your failure to provide the requested information.

We note that you may be liable for the loss and damage suffered by our clients by reason of your delay, including but not limited to refund of management fees paid, exclusion of and liability for the deferred management fee incurred during the period of delay, and loss of opportunity. In this regard, we are instructed that Eva Lane is presently incurring approximately $1,000 per month in interest payments, utilities and other expenses incurred solely by reason of your breach of the Act.

1. In March 2016 Mrs Orr commenced this action to try and get the relevant documents.
2. Mrs Orr said she then became aware that Consumer Affairs were bringing an action against Mr Martyniuk in the Supreme Court[3] which had been instigated by other residents who had been unable to get documents from Mr Martyniuk. She said that she attended all the hearings at the Supreme Court. She produced orders dated 28 April 2016 from those proceedings that declared Mr Martyniuk failed to provide documents as required under the Act and ordered Mr Martyniuk (and the associated companies) to provide certain documents.
3. There was a Directions Hearing held in these proceedings on 18 May 2016. Just before that hearing Mr Martyniuk provided to Mrs Orr what purported to be a factsheet but it was not accurate. At the Direction Hearings Mr Martyniuk was ordered to provide the factsheet by 25 May 2016.
4. Mrs Orr produced an email her solicitors sent to Mr Martyniuk the day after the Directions Hearing which requested that he provide a factually correct and verifiable factsheet and they set out the defects in the purported factsheet provided. That email concluded:

As noted in our letter of 13 January 2016, you stated under oath in 2015 that you could not prepare financial statements or hold an AGM for the Village as you were 'too busy' dealing with the documentation required by this legislative change. These documents should be ready by now and available for residents and potential purchasers. Again, potential purchasers will be lost if the documentation cannot be shown to them. No person will agree to purchase an interest in a unit when they cannot see any documentation. This is a further potential ground for damages against you.

... Further we note that our clients cannot use a factually incorrect 'factsheet' or which does not contain information that is verifiable. Provision of a non-compliant document will mean that our clients will continue to be unable to sell their interest in units in the Village for reasonable market value their claims for damages against going forward continue to increase.

1. On 11 August 2016 there was another Directions Hearing in these proceedings. Mr Martyniuk was ordered to provide certain documents to the applicants and the Tribunal found that:

On 3 August 2016, the applicants, through their solicitors Soho Lawyers, requested that the manager of the Village, Vladimir Martyniuk, make available for inspection the prescribed documents contained in their request by 10 August 2016. Mr Martyniuk has not responded to that request nor has he made the requested documents available for inspection.

1. Mrs Orr said that she was aware that Mr Martyniuk was found guilty of contempt of court for not complying with the Supreme Court orders and fined. She produced orders of the Supreme Court dated 26 October 2016 (Almond J).
2. In December 2016 her solicitors emailed her advising they had not received any documentation or communication from Mr Martyniuk or his lawyers.
3. There were Federal Court proceeding that allowed the appointment of additional directors. On 27 June 2017 there was a meeting of the new directors and the documents Mrs Orr had sought were provided by the new directors.
4. Mrs Orr said that that there was no communication from Mr Martyniuk between May 2016 and June 2017 when the documents were finally provided. There was no one else she could approach to get the documents. Until the new directors were appointed he was the sole director of the two companies that were involved in the running of the village. She is now concerned that Mr Martyniuk will refuse to sign on behalf of IRE, the management contract that is necessary for the sale of the units.
5. The lawyers who acted for the residents in the Federal Court did so on a pro-bono basis but all the residents were asked to contribute $200 towards administration costs which Mrs Lane did.
6. As her mother's entitlement in the unit could not be sold Mrs Orr's mother incurred, and continues to incur, costs associated with the property namely rates, electricity, gas, water, insurance and quarterly maintenance fees.
7. When I queried why some of the utility services had not been disconnected given the length of time it had been vacant. Mrs Orr explained that to keep the property in a state ready for sale, water and electricity were needed for cleaning. Further there was uncertainty as to when she would obtain the documents and she did not think that it would drag on so long and so she not want to turn off services and have to turn them back on and incur disconnection and reconnection fees.
8. As her mother continues to pay these costs it means that the $30,000 she had to tide her over has gone. The bond she had paid is being reduced by the interest payments she has to make on the unpaid part of the bond. The outgoings on the unit and the interest payments are about $7,000 per month.
9. Her mother's only income is the aged pension and 85% of that goes to the aged care facility and the remaining 15% is spent on medication which is $90 per month and her other needs such as hair dressing, podiatry and clothes. Mrs Orr said she had to let her mother's private health insurance go as her mother could no longer afford it.
10. Mr Orr has attempted to have Centrelink re-assess her mother's assets and have them take into account the fact she has been unable to realise her interest in her unit but they will not do this until her assets are $20,000 or less.
11. Mrs Orr said she has found dealing with Mr Martyniuk and the whole situation extremely stressful. When she spoke to him about the expenses her mother is incurring he said it was her own fault for putting her mother in a residence in Canterbury (which is close to Mrs Orr's home) and intimated that she should have put her mother in a cheaper home as if that was the problem rather than the fact his actions were preventing her from selling her mother's unit. These financial problems had caused tension between her and her other siblings. She finds it frustrating as she cannot understand what motivates Mr Martyniuk and why he refused to provide the documents when the new directors were able to provide the information relatively quickly. She said that the worst thing is having to lie to her mother and tell her everything is OK when her mother asks and about her financial situation and wants assurances that she has enough money for her needs.
12. She still had not sold her mother's unit as their real estate agent had advised taking it off the market for a period. Their view was prospective purchasers would be discouraged by it being on the market for so long and not having sold.
13. Ms Orr explained that she was only seeking damages and costs against Mr Martyniuk and not ILR because it is his personal actions and inaction that has caused the loss. It would not be fair to claim against ILR as the shareholders of the second respondent are all the residents and they should not have to pay for Mr Martyniuk's behaviour.

1. Mrs Guymer's father died of mesothelioma in 2010. Her mother, Mrs Jones had to sell the family home to pay his medical costs. Her mother contracted to buy unit 2 at the retirement village in July 2010 just after her husband died. At that time her mother had been diagnosed with ovarian cancer. Mr Martyniuk refused to provide some documents necessary for the settlement. Nonetheless her mother paid the purchase price and moved into the unit on the understanding that the transfer of shares would be registered and a share certificate would be provided in due course.
2. Mrs Guymer said that when her mother purchased the shares, at settlement she should have received a residence contract, a management agreement and other documents and 30 days after the settlement she should have received a share certificate. Mr Martyniuk refused to register the transfer of shares or provide a signed share certificate evidencing her mother's interest in the unit.
3. Within the first week of her mother moving into her unit, Mr Martyniuk visited her mother to discuss some renovations that her mother wanted to do to the unit. Her mother asked about the paperwork and he told her not to worry about it, he knew she owned it and he would put her name down on a piece of paper.
4. Mrs Guymer provided the following evidence regarding her attempts to obtain from Mr Martyniuk a share certificate in her mother's name and later obtain documents needed to sell the property.
5. Mrs Guymer produced letters from her mother's solicitors. On 24 September 2010 they forwarded to Mr Martyniuk, a stamped share transfer form, Share certificate No 61 and a certified copy of the grant of probate of the vendor. They stated they looked forward to receiving a share certificate in Mrs Guymer's mother's name at the earliest opportunity. Mrs Guymer said the solicitors wrote to him again on 22 October 2010 and 25 November 2010. On 21 November 2011 the solicitors again wrote to Mr Martyniuk. They referred to their previous letter and a telephone conversation and noted that they had not received a share certificate and requested that it be attended to as a matter of urgency. They sent another letter on 23 July 2012 which noted they had not received share certificate or any confirmation that the transfer was ever registered with ASIC. In a letter to Mrs Guymer's mother the solicitors said that as well as sending letters they had also contacted Mr Martyniuk by telephone during this period.
6. Mrs Guymer said it then became apparent to her that other residents who had purchased shares also had not received share certificates evidencing the transfer of the entitlement in their units to them.
7. By February 2013 Mrs Guymer's mother had become very ill and was going to move into palliative care and wanted to sell her entitlement to the unit. But she had no proof that she owned any interest despite having lived in the unit for nearly three years. Mrs Guymer contacted her mother's solicitors advising that her mother had never received the share certificate and that they needed to put the unit on the market.
8. Mrs Guymer discussed her mother's situation with another resident Mrs Stubbs and she became aware of the problems other residents were having with Mr Martyniuk's failure to provide documents or provide information about the management of the Retirement Village.
9. Her mother died on 8 February 2015. Mrs Guymer found the long illness and death of her mother very traumatic and was unable to leave her bed for 12 months and suffered the symptoms of PTSD. As a result she did not follow up immediately regarding the sale of the property. Mrs Guymer was granted probate in April 2015 and then contacted her mother's solicitor who advised that they had never had a response from Mr Martyniuk.
10. On 3 September 2015 solicitors wrote on Mrs Guymer's behalf to Mr Martyniuk and advised that Mrs Jones had died and that Mrs Guymer had been grated probate. They noted that they sent documents to him in September 2010 but the share transfer had never been register with ASIC. They demanded that he register the interest of Mrs Jones so that Mrs Guymer could sell the unit.
11. Mrs Guymer emailed Mr Martyniuk on 24 May 2016 again requesting financial statements, a signed share certificate and other documents relating to the sale of the unit. In August 2016 Soho Lawyers wrote to Mr Martyniuk on her behalf. Mrs Guymer also emailed him on 14 February 2017.
12. On 5 June 2016 Mrs Guymer requested by email that Mr Martyniuk provide the factsheet and disclosure statement under s19 of the RV Act. This request was followed up on her behalf by Soho Lawyers by letter dated 3 August 2016.
13. After the Federal Court proceedings which resulted in new directors being appointed, she finally obtained a share certificate in her mother's name and factsheet on 27 June 2017. She was provided with the disclosure statement on 16 July 2017.
14. Despite now having the share certificate (and other documents) she has not put her mother's unit on the market as she is not confident that Mr Martyniuk will sign the management agreement on behalf of IRE with any purchaser which is necessary to sell the unit. She did not want to incur the expense of a sale only to have it fall through if Mr Martyniuk decided not to sign the relevant paperwork. As the management agreement is with IRE the new directors of IRL have no influence.
15. From discussions with local real estate agents she understands the problems with Mr Martyniuk have affected the sale price of units in the Retirement Village as units have been on the market for lengthy periods and have been unable to be sold as he would not sign the paperwork.
16. The situation had been very stressful. She has very little money and wanted to use her inheritance, the proceeds from the sale of the unit, to have her ovaries removed as she has had genetic testing and is at high risk of contracting cancer. Her father died of mesothelioma, then her mother died of ovarian cancer, and now she has had to deal with the problems caused by Mr Martyniuk. She also outlined how there had been falling out between her and the other residents as she is pursing action against ILR as well as Mr Martyniuk personally. She explained that she feels it is her duty as an executor to take all possible avenues of action to obtain damages for the Estate. The Estate owed maintenance fees as it did not have the money to pay them.
17. She stated that the Estate would have to pay a deferred management fee at the time of sale and she hoped that the money she owed and the deferred management fee could be offset by damages from ILR.
18. She paid $5,000 to Soho Lawyers and when she ended their retainer they returned $1,718. They have not provided her with an itemised bill.
19. When cross-examined by Mr Croom she said that she was unaware that the management fee and maintenance fees are payable to IRE not ILR.

1. Mr Martyniuk has not provided any documents to the Tribunal. He appeared at the Directions Hearing on 18 May 2016 and he failed to comply with the Tribunal orders made that day. He appeared at the Hearing on 11 August 2016 and did not comply with the orders made that day. He did not appear at the Directions Hearing on 30 August 2017. He has filed no documents. The evidence of the applicants regarding his conduct is uncontested.

1. At the Directions Hearing held on 18 May 2016 and 11 August 2016 Mr Martyniuk appeared for ILR. ILR failed to comply with the Tribunal orders made.
2. At the Directions Hearing held on 30 August 2017, ILR was represented by Mr Bromley of Counsel.
3. Since the additional directors have been appointed ILR's case has been that it should not be liable for any loss caused by its failure to provide documents pursuant to the RV Act. This is because once the additional directors were appointed it provided the documents as expeditiously as possible.
4. Further the shareholders of IRL are the residents of the Retirement Village who have all suffered because of Mr Martyniuk's actions as manager of the Retirement Village and former sole director of ILR. The shareholders took action in the Federal Court to enable the appointment of additional directors so that these matters could be resolved. ILR should not be held responsible for the actions of Mr Martyniuk and it would be unfair to the shareholders if an order for damages or costs was made against ILR and the residents had to pay.

1. Mr Croom's mother owns shares in ILR and has an entitlement to a unit. He was one of the new directors who were appointed as a result of the Federal Court action.
2. He said that he basically agreed with the evidence of the applicants.
3. Mr Croom said that Mr Martyniuk was very unpredictable in his behaviour. If he felt like it, or liked you, he could be amenable to requests for documents and other services. Otherwise he was evasive and difficult to get along with.
4. As to whether residents had been able to sell their units since the new directors were appointed, he said that on 30 August 2017 one resident tried to sell her interest and Mr Martyniuk refused to sign the management agreement and the sale did not go through. Another resident was going to sell on 14 September 2017 but the vendor pulled out of the sale as they were concerned that Mr Martyniuk would not sign the necessary documents but he was never actually asked to in that case. There is another sale due to settle on 12 December 2017 and they are waiting to see whether Mr Martyniuk signs the relevant agreement.
5. It is unclear whether a sale can go ahead without the purchaser entering into a management agreement with IRE.
6. The company structure is such that one company, IRL owns all the assets and the other company, IRE gets the benefit of all the income. At the time of sale there is a deferred management fee payable to IRE.
7. Mr Croom had a telephone conversation with Mr Martyniuk around 5 September 2017 where he raised the issue of the potential sale of units and Mr Martyniuk was very very evasive and he could not get any information. On other occasions when Mr Croom has had dealing with him he has been dictatorial and threatening but mostly he just stonewalls and does not respond to any requests. Mr Croom described the difficulties the residents had in ascertaining whether the insurance for the village was up to date and had to enlist the assistance of the manager of Stage 2.
8. Mr Croom said the shareholders of the company are the residents and it would be unfair if they had to pay for Mr Martyniuk's conduct. He said he believes Mr Martyniuk has assets and that when people take legal action again him he eventually pays. He was aware of bankruptcy proceedings that were brought against Mr Martyniuk and he paid to avoid bankruptcy. Mr Croom has also heard him give evidence in other proceedings where he has said he has assets.
9. Mr Martyniuk has provided no assistance to the new directors and has no input at the Director's meetings.
10. Mr Croom is aware that some unit holders have become so frustrated by Mr Martyniuk's behaviour and the difficulties in getting the documents necessary to sell their units that they have sold their units at a reduced price to Mr Martyniuk.
11. Now that the new directors have been appointed they have been trying to get the documentation in order. They have changed the banking details so that Mr Martyniuk can no longer operate ILR's bank account as he was draining the account at the end of each month. It was unclear where the quarterly maintenance fees have gone.
12. Mr Croom said that IRL's view is that Mr Martyniuk was the sole director of IRL and IRE and had sole control of the management of the village. As a manager he is responsible for all functions of the village. IRL's view is that as the manager and person in control, Mr Martyniuk should be personally liable to the applicants for any damages.
13. The deferred management fee and the quarterly maintenance fees are paid to IRE not IRL. So if an order was made against IRL any fees that are owing by Mrs Jones' estate could not be set off against the damages order.
14. Mr Croom said that Mrs Guymer could have mitigated her loss by putting the unit on the market once she got the share certificate and other documents. Despite having these documents since July 2016 she had taken no steps to sell the unit.
15. Mr Martyniuk had been the sole director of ILR and was the sole director of the management company IRE. He was the administrator of Body Corporate Strata Plan 14662. Mr Martyniuk was paid to manage all aspects the village. Over the years there have been a number of actions against him for contravention of the RV Act.
16. The minutes of the Directors' meetings provided by ILR show that Mr Martyniuk is not cooperating with the new directors regarding the provision of information.

Have the respondents contravened the ACL& FT Act and RV Act?

1. Section 40 of the RV Act is headed "Application of Australian Consumer Law and Fair Trading Act 2012". The section says that certain provisions of the ACL & FT Act extend and apply to the RV Act as if any reference within the provision to the ACL& FT Act was a reference to the RV Act. Sections 216 and 217 of the ACL & FT Act are to be read in that way.[4]
2. Section 217 of the ACL & FT Act provides that where a person suffers loss or damage due to a contravention of a provision of the ACL & FT Act, the Tribunal may order damages against a person who contravened, or was involved in a contravention of, the ACL & FT Act.
3. Under section 216(1) of the ACL & FT Act, the Tribunal may make any order it considers fair, upon a finding that the Act was contravened and another person has suffered loss or damage as a result of that contravention. Paragraph (1) provides such an order can include an order the respondent pay the amount of any loss or damage suffered by the injured person as a result of the breach to the injured person.
4. Thus the effect these provisions of the RV Act is that the applicants may bring a proceeding before VCAT for any loss, injury or damage suffered by them as a result of a contravention of the RV Act.
5. The ACL & FT Act, gives the Tribunal power to hear and determine such disputes in accordance with the common law of contract[5] and/or in accordance with the provisions within each Act which prohibit, among other conduct, misleading or deceptive conduct and unconscionable conduct.[6]
6. Both the FT Act and the ACL & FT Act provide that a person who, as an officer of a company, has been involved in a contravention of the Act may be liable in damages to a consumer suffering loss as a consequence of the contravention.[7]
7. Since 1987, the RV Act has regulated the rights of residents of retirement villages,[8] being defined communities whose residents are retired persons who have paid in-going contributions for the provision of accommodation and services.[9]
8. Under section 3 of the RV Act a "manager" is a person who manages the retirement village, or in the absence of such person the owner of the village.
9. Under section 18A of the RV Act, where the owner or manager of a retirement village receives a request for a factsheet from a retired person or a person acting on behalf of a retired person, they must provide a copy to the person who made the request within 7 days.
10. Under section 19(2) of the RV Act, all residence documents including the factsheet must be given to a prospective resident 21 days before entering into any management contract.
11. Under section 20(3) of the RV Act if asked by a resident, an owner (or owner's agent) or manager of a retirement village,[10] must give to a resident information concerning the retirement village which the resident reasonably requires and the owner (or agent) or manager is able to give.
12. Based on the evidence before it the Tribunal is satisfied that Mr Martyniuk is the manager of the retirement village as defined in the RV Act.
13. The Tribunal has already declared that Mr Martyniuk is in breach of section 18B(2) of the Act by failing to make available for inspection the requested documents within 7 days of the request.[11]
14. Based on the evidence before it the Tribunal is satisfied that Mr Martyniuk was requested by Mrs Lane and Mrs Guymer to provide factsheets and that he failed to provide them. The Tribunal is satisfied that Mr Martyniuk was required to provide a stamped share certificate to Mrs Jones and subsequently to Mrs Guymer to evidence Mrs Jones' interest in her unit and information as to whether her interest had been registered. This was information which Mrs Jones and Mrs Guymer reasonably required and Mr Martyniuk was able to give. Thus I am satisfied that Mr Martyniuk contravened sections 18A, 19(2) and 20(3) of the RV Act.
15. I am also satisfied that IRL as an owner also contravened sections 18A, 19(2) and 20(3) of the RV Act at the time when Mr Martyniuk was the sole director.

Have the applicants suffered loss or damage as a result of the contraventions of the RV Act?

1. It was submitted that the Tribunal should consider it fair under section 216(1) of the ACL & FT to award damages, to compensate her for their loss as a consequence of being unable to sell her interest in the unit of $28,564.78 and aggravated/exemplary damages of $10,000.
2. Mrs Lane claimed that she was unable to sell her entitlement to her unit as a result of the actions of Mr Martyniuk. A property report prepared by Ray White, Patterson detailed the online enquiries that had been made in relation to the property and showed that there was considerable interest by prospective purchasers in the property.
3. I am satisfied that Mrs Lane first requested the documentation in March 2015.
4. Details of the claimed loss as a result of Mrs Lane being unable to sell her entitlement to the unit is as follows:

1. Although the documents were first requested in March 2015, even if the documents were immediately provided it would have probably taken several months to sell Mrs Lane's interest in the unit. However, damages have only been claimed from 29 June 2015 which just over three months after the documents were requested. In my view this is the appropriate date for the calculation of damages to commence. The period claimed ends on 30 June 2017 which is three days after she received the relevant documents. In my view this is a conservative date as the unit could not have been sold for a period after this and I regard this as an appropriate time period over which to assess damages.
2. Clearly the contraventions by Mr Martyniuk prevented Mrs Lane from selling her interest in the unit. Accounts and invoices were provided verifying all the costs claimed as a consequence of not being able to sell her interest and I am satisfied this loss is as a consequence of Mr Martyniuk's contravention. I consider it fair that Mr Martyniuk be ordered to pay Mrs Lane $28,564.78 in damages.
3. It was submitted that is was appropriate for the Tribunal to award exemplary and/or aggravated damages against Mr Martyniuk due to the nature of his conduct and effect of the contravention on Mrs Lane in particular:
   • Mr Martyniuk placed himself in a position of absolute sole power and control over the residents of the Retirement Village. This was only able to be remedied by a Federal Court proceeding for shareholders' oppression which resulted in the appointment of other directors.
   • During his lengthy period of control Mr Martyniuk was the only person to whom any resident could turn to for the appropriate documentation. He did not provide documentation for years despite requests by many residents. Only after Consumer Affairs Victoria pursued him in the Supreme Court did he even attempt to provide any documents sought.
   • The document he eventually provided was factually baseless and Mr Martyniuk remained in breach of orders to provide a factually correct and verifiable factsheet.
   • Mr Martyniuk has been subject to orders in this proceeding in May 2016 to produce a factually correct and verifiable factsheet, and to produce the residence documents under section 19 by 11 August 2016. Neither order was complied with by Mr Martyniuk. It was only after the new directors were appointed to ILR that Ms Lane received any documentation.
   • The inability to sell the units is not simply an investment unable to be liquified. It is, for many residents, including Mrs Lane, her sole major asset. It has caused immeasurable distress for Mrs Lane and Ms Orr as her financial attorney as there was no other option for them to obtain the required documents, meaning that Mrs Lane's accommodation bond in the nursing home could not be paid. Mr Martyniuk exercised absolute control over this situation and chose to do refuse to act in accordance with law which meant an elderly pensioner was left with no assets to pay for her own care.
4. The decision of Justice Hargrave in Director of Consumer Affairs Victoria v Scully (No 4) establishes that aggravated damages may be ordered under section 158 of the FT Act[13] and that the purpose of such damages was compensatory, unlike exemplary damages which were awarded as punishment for offending conduct. In Aldersea v Public Transport Corporation,[14] Justice Ashley concluded that the authorities establish that, in appropriate circumstances, damages can be awarded for "distress" consequential upon statutory contravention.[15] His Honour doubted that expert evidence of the suffering of such distress was necessary because a listener could, from listening to a person's description of or response to certain circumstances, readily conclude whether what the person described was distress and if so, discern its apparent cause or causes.[16]
5. The evidence of Mrs Orr indicated that she had sought to shield her mother from the worry and stress that was being generated by Mr Martyniuk's actions. She described how hard she found it to lie to her mother about her finances. Mrs Orr has been the one who has to deal with Mr Martyniuk and the family friction Mr Martyniuk's actions have caused. She appears to be the person who has been primarily distressed by his actions. However she is not the applicant, and damages cannot be awarded for her distress only the distress of her mother.
6. However I do accept that despite Mrs Orr's efforts her mother would be aware that there has been a significant delay in selling her interest in her unit which would be causing her concern and worries about her financial position. She would have a degree of distress albeit less than Mrs Orr's. I also have regard to Rees v Illawong Retirement Group Pty Ltd (Civil claims) [2014] VCAT 667 and find that an award of $2,500 in aggravated damages against Mr Martyniuk in his personal capacity is appropriate.

1. I am satisfied that Mrs Jones first sought the share certificate and information about its registration in September 2010 and requested the factsheet and disclosure documents in June 2016. As executor, Mrs Guymer has claimed the loss as a result of being unable to sell the unit since the death of Mrs Jones on 8 February 2015. Her total claim on behalf of the estate is $31,369.22.[17]
2. Mrs Guymer has not provided accounts for all the period she is claiming and she has not provided a pro-rata amount for accounts that pre-date the period claimed. Mrs Guymer only sought to sell her mother's unit after her mother's death. As noted above the period over which any damages should be calculated should not commence until a reasonable period has been allowed in which the unit could have been sold.
3. Details of the claimed loss as a result of Mrs Jones being unable to sell her entitlement to the unit is detailed in the paragraphs that follow.
4. Mrs Guymer has provided the following evidence of payments to South West Water:
   • 25 May 2015 two payments $48.15 and $125.15. This relates to a bill dated 5 March 2015 for usage for the period 10/11/14 to 11/2/14 and service charges to 31/3/2017. The $48.15 is the balance brought forward from the previous bill
   • Bank statement 13 July 2015 payment $187.15
   • Bank statement 15 February 2016 payment $341.30
   • Bank statement 18 April 2016 payment $204.00
   • Bank statement 23 September 2016 payment $350.20
   • Bank statement 23 January 2017 payment $178.85
   • Bill dated 2 March 2017 for $199.40
   • Bill dated 2 June 2017 for $402.10 including balance of previous bill brought forward and included interest charges of $2.20
   • Bank statement 30 June 2017 payment $410
5. Some of the accounts provided pre-date Mrs Jones' death and some of the accounts include balances brought forward from previous accounts. I have decided to allow the actual payments made as evidenced by the bank statements, from 13 July 2015 which is $1,671.50.
6. Mrs Guymer claimed maintenance fees of $6,836.20 for which she provided accounts. She has not paid these accounts but if they remain unpaid at the time of sale the purchase price would be adjusted to take them into account accordingly I allow these fees.
7. In relation to insurance she claimed $191.81 per annum for the years 2015, 2016 and 2017. The policy falls due on 18 April each year. She provided an account for 2015 of $194.81, for 2015 of $195.83. A letter dated 24 April 2016 stated that her policy had expired. I allow the two premiums she has provided accounts for a total of $380.64.
8. The documentary evidence provided indicates the rates have not been paid since Mrs Jones died. The 2015 rate notice was for $802.19 including arrears of $10.53. The 2016 rate notice was for $787.13 plus arears and interest charges of $837.52. The 2017 rate notice was $957.56 plus $1,728.02 arrears and $45.73 interest charges. Mrs Guymer provided a letter that stated a special charge was being imposed at a flat rate of $173.92 per rateable property for a five year period commencing 1 August 2017. I would allow the rates but not the interest and penalties making a total of $2,546.88 as Mrs Guymer has not mitigated her loss by paying the accounts on time. Ultimately if the unit is sold the sale price for the unit will be adjusted to take these unpaid rates into account.
9. Two gas accounts were provided: for the period 21/11/2014 to 22 /1/2015 (63 days) for $51.30; for the period 23/1/2014 to 24/3/2015 (61 days) for $50.16. The bank statement shows this account was paid on 28 May 2015. Based on these accounts the gas usage cost for the property is .818 per day. I allow two years gas usage being $597.14
10. One electricity account was provided for the period 3/1/2015 to 7/4/2015 (95 days) for $101.75 and the bank statement as evidence of payment. The bank statement also showed a payment to AGL electricity on 20 July 2015 of $172.76. Based on these accounts the gas usage cost for the property is $1.07 per day. I allow two years gas usage being $781.10.
11. The $200 resident's contribution to the costs of the Federal Court proceeding was claimed and I allow this.
12. Mrs Guymer also claimed three years of the deferred management fee from 8 February 2015 to an estimated sale date of 8 February 2017 namely $18,750.
13. The Management Agreement provides that a deferred management fee is payable by the holder of the shares when the shares are sold part of which is calculated on the total consideration payable by the purchaser for the acquisition of the shares at the rate of 2.5%per annum calculated from the date the holder purchased the shares until the date they are sold.[18] Mrs Guymer is claiming this part of the deferred management fee that accrued during the period she was unable to sell the property due to the actions of the respondents.
14. In response ILR submitted that the fee should be calculated over a period of 2.5 years rather than 3 years. ILR agreed that the annual rate should be assessed at $6,250.00 on a sale price of $250,000.00 but submitted that the calculation period should be from approximately 1 July 2015 to 31 December 2017. The starting date has been chosen as Mrs Guymer's mother died on the 8 February 2015. ILR estimated that even if a share certificate had been provided at the time it would have still taken some months for the property to be sold and probate to be granted therefore a start date of 1 July 2015 is appropriate. With respect to the end date, ILR says that the Mrs Guymer was provided with a share certificate and factsheet on 27 June 2017. A disclosure statement was provided on 16 July 2017. ILR says that the Mrs Guymer could have put the unit on the market from that date onwards and it would probably have taken about 4 to 6 months to sell, therefore an end date of 31 December 2017 is proposed. This would be an amount of $15,625.
15. In response Mrs Guymer submitted that the uncertainty regarding whether Mr Martyniuk would provide the relevant documents necessary for settlement of a sale prevented her from putting the property on the market.
16. I agree that the calculation period for the deferred for the management fee should not commence on 8 February 2015 as even if the share certificate had been provided at that date it would probably have taken some months to sell. I agree that 1 July 2015 is an appropriate start date. I also agree that 31 December 2017 is an appropriate end date not because I am of the view that Mrs Guymer should have put the property on the market in July 2017. Her concern about whether Mr Martyniuk will sign documents needed to effect a sale are genuine given his relatively recent failure to do so. I am satisfied that the property will not be sold by 31 December 2017 but beyond that, it is unclear when the unit may sell. Any period beyond 31 December 2017 is not a certain loss but speculative. Thus I allow an amount of $15,625.
17. Thus doing the best I can on the evidence provided the damages for loss that I allow Mrs Guymer are:
    • Water $1,671.50
    • Maintenance fees $6,836.20
    • Insurance $380.64
    • Gas $597.14
    • Electricity $781.10
    • Resident's contribution $200
    • Deferred management fee $15,625

Should an order for damages be made against Mr Martyniuk solely or also against IRL?

1. Section 216(1) of the ACL & FT Act provides that where a person suffers loss due to a contravention the Tribunal may make any order is considers fair. In the circumstances of this case in my view it is fair to make an order for damages against Mr Martyniuk solely.
2. This is because:
   • the contraventions result from the behaviour of Mr Martyniuk.
   • at the time of the contraventions Mr Martyniuk was the sole director of IRL.
   • as soon as other directors were appointed IRL complied with its obligations under the RV Act.
   • Mr Martyniuk provided no assistance to the newly appointed directors.
   • The shareholders of IRL are the residents of the Retirement Village.
   • The shareholders took action in the Federal Court to have additional directors appointed so that the company could comply with its obligations.
   • it would be unfair for the shareholders to have to pay damages when the contraventions are due to Mr Martyniuk's conduct.
3. I consider it fair that Mr Martyniuk in his personal capacity be ordered to pay Mrs Guymer $26,091.58 in damages.
4. Mrs Guymer also seeks an indemnity against Mr Martyniuk and ILR with respect to her liability for deferred management fees and maintenance fees. However these fees are payable to IRE not Mr Martyniuk and ILR, so no indemnity is available to Mrs Guymer. IRE has not been joined and there is no order requiring her to pay IRE, so nothing can be set off.

1. Both applicants seek costs.
2. The Tribunal's powers in respect of making orders for costs are constrained by Section 109 of the VCAT Act, which provides 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. It is apparent from the terms of section 109(1) of the Act that the general rule is that costs do not follow the event, and that each party is to bear its own costs in a proceeding.
2. By section 109(2) of the Act, the Tribunal is empowered to depart from the general rule, but it is not bound to do so, and may only exercise that discretion if it is satisfied that it is fair to do so, having regard to the matters set out in section 109(3).
3. For the same reasons that I have found that the orders for damages should be against Mr Martyniuk solely, I find that any order for costs should be against him solely and not against IRL.

1. It was submitted on behalf of Mrs Lane that costs should be awarded on an indemnity basis due to Mr Martyniuk's failure to cooperate at every stage of the proceeding. The claim was for $10,299.80 based on $365 per hour (28.19 hours) plus one days hearing costs of $3,212. If standard cost were to be awarded they would be calculated at $314 per hour[19] the costs would be $8,853.50 plus one days hearing costs of $2,706.72.
2. In these proceedings Mr Martyniuk has failed to comply with orders of this Tribunal without reasonable excuse. His failure to comply with the Tribunal's orders necessitated an additional hearing and therefore additional costs.
3. The main purpose of the proceedings was to seek documents from Mr Martyniuk as the manager and administrator of the Retirement Village. The proceedings were only instigated after repeated attempts over a lengthy period to obtain these documents. Neither his conduct in these proceeding nor his compliance with orders in these proceeding resulted in the applicants obtaining the documents. These documents were eventually obtained as the result of proceedings in the Federal Court where additional directors were appointed who could take the actions he had failed to take. No reason has been provided at any stage by Mr Martyniuk for the failure to provide these documents. His conduct has been unreasonable.
4. In relation to the relative strengths of the case it appears on the material before me that Mr Martyniuk had no defence and never sought to pursue any defence. There was no explanation for his failure to provide documents.
5. In relation to the nature and complexity of the proceeding, it is one where the proceeding succeeded. Further the proceeding was a type which was required here to be brought, either by reason of some unlawful or improper conduct by another party which warranted redress.[20]
6. Having regard, therefore to sections 109(3)(a)(i), 109(3)(a)(b) and 109(3)(c) of the VCAT Act, I consider that my discretion should be exercised in favour of making a costs order in favour of Mrs Lane. Having regard to the above matters, I find that it is fair in the circumstances that the Mr Martyniuk should pay the costs of Mrs Lane.
7. An award of costs on an indemnity basis, sought here by Mrs Lane, is usually made only in exceptional circumstances.[21] Indemnity costs are more generous as they entitle the recipient to all of its costs apart from those unreasonably incurred, while standard costs entitles the recipient only to those costs that are reasonably incurred.
8. In Colgate Palmolive Pty Ltd v Cussons Pty Ltd,[22] Shepherd J set some of the circumstances which have been thought to warrant the exercise of the discretion:
   • the making of allegations of fraud knowing them to be false and the making of irrelevant allegations of fraud;
   • evidence of particular misconduct that causes loss of time to the Court and to other parties;
   • the fact that the proceedings were commenced or continued for some ulterior motive or in wilful disregard of known facts or clearly established law;
   • the making of allegations which ought never to have been made or the undue prolongation of a case by groundless contentions;
   • an imprudent refusal of an offer to compromise; and
   • an award of costs on an indemnity basis against a contemptor.
9. In Ugly Tribe Co Pty Ltd v Sikola,[23] Harper J. discussed similar principles and said:

The position changes where a litigant acts dishonestly in the litigation, or where the rights and privileges of a litigant are flouted or abused. Then, the rationale for refusing to order that the losing party indemnify an opposite party against that party's costs is less compelling. Indeed, costs are more frequently if not invariably awarded on an indemnity or like basis (such as that of solicitor/client) where findings of dishonesty or serious misconduct have been made against the party ordered to pay.

1. In my view although Mr Martyniuk failed to comply with orders of the Tribunal the evidence is not that he acted dishonestly in the litigation. Prior to the commencement of the litigation he acted in a high handed manner but he has not sought to prolong matter by running an untenable defence. The level of misconduct on behalf of Mr Martyniuk in the conduct of the proceeding is not such as to warrant costs an award of costs on an indemnity basis. I will award costs on a standard basis.

1. Mrs Guymer gave evidence that she paid Soho Lawyers $5,000 on account of anticipated costs and disbursements. When she ceased instructing them they returned $1,718 leaving a balance of $3,282 that was expended in legal costs and disbursements. She said that she did not receive an itemised account from Soho Lawyers. As she is claiming the entire amount she is in effect claiming indemnity costs.
2. For the reasons set out above I regard it appropriate to make an award of costs on standard basis against Mr Martyniuk in Mrs Guymer's case.

[2] The documents provided indicated she received a war widow's pension of $854.30 per fortnight.

[3] Director of Consumer Affairs Victoria v Illawong Lakeside Retirement Pty Ltd and Ors VSC (consent orders made on 28 April 2016).

[5] FT Act section 108 and then ACL&FT Act section 184 for disputes based on contract law generally and FT Act section 159 and then ACL&FT Act section 236 for disputes based on contraventions of the sections referred to in footnote 8 below.

[6] FT Act sections 7-9 and then sections 18, 20 and 21 of the ACL.

[7] FT Act section 158 and then section 236 of the ACL.

[10] Owner includes Manager s 20(5) of the RV Act.