(2) If an applicant withdraws an application or referral -

(b) the Tribunal may make an order that the applicant pay all, or any part of, the costs of the other parties to the proceeding;

1. The Council submits that all of its costs should be paid. It says in addition that it relies on Section 26 of the Valuation of Land Act 1960. That provision states:

(1) On a review or appeal, VCAT or the Court (as the case requires) may make an order as to the payment of costs, or no order as to the payment of costs, as it thinks appropriate.

(2) In determining any questions concerning costs, VCAT or the Court must take into consideration the following factors, as appropriate -

(a) the desirability of minimising the overall level of legal and valuation costs;

(b) any offer, whether or not made without prejudice, by a party in respect of the valuation;

(c) the extent of any adjustment to the valuation made by VCAT or the Court;

(d) the degree of openness in sharing information between the parties -

(e) any unreasonable conduct on the part of any party -

(f) the failure of a party to give adequate information or supply supporting material when permitted or required to do so;

(g) an excessively low value stated by the objector under section 24(2) or an excessively high value contended by the valuation authority, valuer or valuer-general (as the case requires).

1. The first question is the basis on which this costs application can be made. In the Tribunal's General jurisdictions power to award costs is contained in Section 109 of the Victorian Civil and Administrative Tribunal Act. That provision does not apply to proceedings such as this and Section 26 of the Valuation of Land Act 1960 which I have just quoted does. In their annotation of Section 74 of the Victorian Civil and Administrative Tribunal Act the learned editors of Victorian Administrative Law at paragraph [VCAT 74.120] state that the power in the Tribunal's General jurisdiction to award costs under Section 74 is separate from its power under Section 109. The learned authors refer to a decision Transport Accident Commission v Coyle [2001] VSCA 236; (2001) 3 VR 589 where Batt JA as a member of the Court of Appeal noted that were it not for Section 74(2)(b) there would be doubt as to whether the Tribunal could make an award of costs after a proceeding had been withdrawn, the Tribunal being functus officio. This reasoning means that Section 74 applies and Section 26 does not because this proceeding has now been withdrawn. The sole authority to make the costs award therefore it would seem will be under Section 74. Nevertheless, since the Section 74 discretion is open it must be exercised against the background of the costs regime laid down by Section 26 and that regime is significantly different from the one which generally applies in the Tribunal. Generally, the presumption is that costs lie where they fall. Section 26 of the Valuation of Land Act leaves that as an option but it contains no preference for that outcome over any other in contrast to Section 109(1) of the Victorian Civil and Administrative Tribunal Act 1998 which makes that the rule in the Tribunal's General jurisdiction when the award of costs as between party and party the exception.
2. In Court a party withdrawing a proceeding invariably has to pay the costs of the other party. The reason is because if the matter went on and the withdrawing party lost, costs would follow the event and the party would then certainly have to pay the costs. Where there is a possibility that no costs order might have been made even if the matter had gone to a contested hearing, the context in VCAT is somewhat different. On the other hand here in the Land Valuation List we do not have a presumption that costs lie where they fall and therefore the situation is less different from the Court situation here than it is elsewhere in VCAT.
3. The submission of Mr Cantor for the Council is that the defective hypothetical study indicates the lack of substance of the case put by Decleah. He suggests it was a 'try on'. Once the 'try on' was unmasked, the ruse was given up and the proceeding withdrawn. Mr McCaffrey and Mr Mondous on behalf of Decleah say the proceeding was withdrawn on a bona fide basis based on concerns that the cost of the noise attenuation barrier was not reflected in the valuation and it should be. This issue is being pursued in the separate proceedings for a review of the valuations in the 2010 cycle. Therefore say Mr McCaffrey and Mr Mondous on behalf of Decleah, there is no basis for suggesting that Decleah's case was other than bona fide or reasonable and it should not be treated as having engaged in unreasonable conduct or some form of attempted try on. On the other hand Decleah did throw in the towel and that is a matter of some significance. It did seek to retrieve the towel but I ruled that since the order of withdrawal had been made the Tribunal was functus officio and this could not be done.
4. In my view given that there is no presumption that costs lie where they fall in the circumstances described it is appropriate to exercise a discretion under Section 74 to make an order relative to the costs of the proceedings against Decleah. I do not make a finding that Decleah brought this proceeding other than in good faith. The fact that its hypothetical subdivisional study was so far off the mark, indicates to my mind that it was a severely flawed case.
5. The next question is on what basis should the costs be awarded. Mr Cantor suggested as I understood him that the reference in Section 74 to 'all costs' means in effect costs on a full indemnity basis. In my view whilst in some later provisions of the Victorian Civil and Administrative Tribunal Act dealing with offers to settle, the word 'all costs' might have that denotation here, it means costs for the whole of the proceeding rather than costs on any sort of uplifted basis. In Court the ordinary basis on which orders are made is that they are assessed between party and party. In this List whilst there is no presumption that costs lie where they fall, costs do not automatically follow the event. Therefore an award of costs on full indemnity basis must be more difficult to obtain in this List in the Tribunal than it would be in Court and awards of costs on a full indemnity basis are the exception rather than the rule. There is a further difficulty as to the manner in which the costs are put before me. It is a rule of thumb accepted these days that costs awarded as between party and party represent 55 to 60% of the amount which is actually paid as between solicitor and own client. If one were simply to make an award based on what has been invoiced to the Council then an award of costs on a basis more generous even than an order for full indemnity costs in Court would be made. Those orders are done by reference to items in the litigious scale not according to ordinary time costing and they do not, despite the name and designation of the scale, really amount to an award of the amount of costs which it costs the client. I confronted Mr Cantor with this issue yet he persisted in claiming the full amount of the valuation fees without any explanation as to how the paradox that I have just described could be met. The $10,000 valuer's fees simply cannot be a proper basis to consider awarding. I accept that even though these are not legal costs, on the basis of the decision of Morris J in Aussie Invest v Hobsons City Council [2004] VCAT 2188; (2004) 22 VAR 212 that they can be awarded as costs; but that does not mean that someone who has engaged a non-lawyer advocate is to be given in some sort of preferential treatment for recovering costs of another party, able to recover all or a much higher percentage than he would be able to recover if he had hired a lawyer.
6. I am not persuaded that the case put by Decleah was so far off the mark that in the context of the Tribunal an award for full indemnity costs should be made. In my view therefore the amount that should be awarded for the valuation costs is $5,500 and I believe that an award of $6,000 should be made with respect to the legal costs. This represents my rough and ready wind back of those amounts to what might be regarded as an award as between party and party.
7. This then brings me to the issue of the costs of an adjournment when this costs application was pressed before me previously. On that occasion Mr McCaffrey, town planning consultant who represents Decleah today represented it alone. He sought to reinstate the proceeding and I ruled that he could not. He also sought an adjournment of the costs hearing. because Mr Mondous (Decleah's principal) was unavailable. He suggested the matter should be adjourned for 30 days. Ultimately I did grant that adjournment for reasons that were given at the time and transcribed. I was left with the distinct impression that Mr Mondous was away somewhere and would not return for a month. In fact, Mr Mondous at 1.10 pm on the same day held a conversation with a lady at the valuation consultancy representing Cardinia. He was obviously available then. Mr McCaffrey challenged today still did not know the nature of Mr Mondous' unavailability. Mr Mondous explained that he was taking his wife to a confidential medical appointment and he said he had given adequate notice of this to Council. This misunderstands the nature of litigant's duty altogether. It seems to suggest that a litigant is at liberty to cancel a hearing because it doesn't suit his calendar as long as he gives reasonable notice. This is presumptuous and unacceptable attitude. To make things worse, Mr Mondous sent Mr McCaffrey along without properly acquainting him with the reality of the situation. Mr McCaffrey was suggesting to me Mr Mondous might be available in 30 days whereas the fact was Mr Mondous was available that afternoon. I accept the characterisation put by Mr Cantor on these matters that they represent a cavalier treatment of the Tribunal and the Council. In my view there should be an award of the costs of the adjournment hearing. The order for costs generally should include all reserved costs. There should be a separate award of costs for the adjournment of the last hearing and it should represent 55% of the amount which was claimed which was over $2,000 and I fix that amount in the sum of $1100.
8. Mr Mondous submits that since the same issues will arise in another matter or rather the matter dealing with the 2010 valuation, all of these costs issues should be put aside and considered when that matter is resolved. I accept the submission of Mr Cantor that it is altogether an over simplification of this proceeding to say that the same issues arise here as will arise in the 2010 proceeding. Accordingly I will make orders for the payment of the costs that I have indicated. I should observe more generally that whilst there were Calderbank type offers made here and Calderbank type offers can uplift the scale on which costs are awarded, typically in situations where this arises is when the offer relates to the substantive outcome of the proceeding and the costs are an appurtenance. There are logical difficulties in seeking to uplift a costs scale where it is the costs themselves that are in dispute. I have in any event determined to award separate costs in the sum of $1100 for today and for the previous hearing.