(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(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. The general presumption in the Tribunal is that parties bear their own costs. A costs order will only be made against a party where there is some basis on which it can properly be concluded it is fair to depart from that position.

1. Mr Cohen's submission on costs invoked the following provisions in s 109(3): sub-sections (a)(v) and (vi), (c), (d), and (e).
2. Mr Cohen submitted that the actions of the respondents as majority owners controlled by Mr Spinosa, in procuring that only their nominees were appointed to the committee of the OC (notwithstanding warning that such action would result in an application for appointment of an administrator) was designed to deliver financial advantage to his companies, and to disadvantage the applicants in the legitimate pursuit of their significant claims for loss and damage.
3. Mr Cohen also relevantly referred to the telephone conversation Mr Spinosa had with Mr Ziino on or about 1 December 2017, which he said was an improper attempt to interfere with the tender process to his own advantage. In this regard, he referred to the special resolutions previously approved by the OC committee on 17 October 2016 for rectification works to be carried out, and the resolutions made by the OC committee on 16 October 2017 to initiate a process to enter into a contract with ADZ for the rectification works, in the event that a contract with Mr Spinosa to the satisfaction of the OC was not signed by 5 pm on 17 October 2017 - which it was not.
4. Mr Cohen noted that this telephone conversation occurred after the Tribunal had made interim orders on 20 November, restraining the OC from taking any further action pending hearing of the application for appointment of an administrator on 13 December 2017.

1. In his submissions on behalf of Antross and Idyll, Mr Free contended that the applicants' case was not strong, that they relied on documentation which they did not bring to the hearing, and that their affidavits were embellished or not true. However, no particulars of those matters were stated in the submission. In my view, it is clear the applicants had a strong case, and that any technical inaccuracies in their affidavits, or documents not produced, were of little or no significance to the overall outcome.
2. As noted, there has been no submission made by Mr Spinosa or Majora in response to the applicants' costs application.

1. In my view, this is a clear case in which there should be a costs order in favour of the applicants. Contrary to Mr Free's assertion, the applicants had a much stronger case than the respondents (enlivening s 109(3)(c) of the VCAT Act). I concluded that the conduct of Mr Spinosa, either directly, or through the companies he controls, gave rise to a situation in which it had become necessary for an administrator to be appointed in order to avoid the strong possibility that the minority lot owners would be disadvantaged. He was pursuing commercial interests. He is involved in a multi-million dollar commercial dispute with owners of lots of the complex he constructed. His actions represented an unusual and serious undermining of the proper processes of the OC in pursuit of strategic advantage in that dispute. These factors enliven s 109(3)(d) and (e) of the VCAT Act.
2. For these reasons, I conclude that it is fair to make an order that the second - fifth respondents pay the applicants' costs.

[1] McKinnon v Adams [2003] VSC 116, per Bongiorno J, at [20].

[2] Mr Free has, from 10 April 2018, ceased to act, indicating that his clients are now represented by Mr Smith also.