(e) - any other matter the Tribunal considers relevant.

1. The applicant does not rely on any other of the subsections to section 109(3).

1. The applicant submits that subsection 109(3)(c) is a relevant consideration because the respondent's counterclaim for loss of profits and overheads had no tenable basis in fact or law. It says the counterclaim was not tenable because:

(a) clause 19.4 of the building contract confines the respondent to recovering a reasonable value for work performed, and not 'speculative lost profits';

(b) the respondent provided no evidence of loss incurred, or any documentation to support its claim; and

(c) the respondent continued to pursue the claim despite the evident lack of merit.

1. Whilst not expressly stated by the applicant, this submission would appear to relate to the applicant's costs claim only insofar as it relates to the counterclaim.
2. It is beneficial here to provide some background regarding the pleadings, including the counterclaim.
3. In its Points of Claim, the applicant alleged the respondent terminated the building contract. The applicant pleaded that, under clause 19.4 of the contract, the respondent was entitled to a reasonable price for the work performed including the cost incurred and an amount for the builder's profit and overheads. On this basis, the applicant claimed a refund of $22,751 from the $49,050 deposit paid under the contract.
4. The respondent denied it terminated the building contract. It said the applicant asked to terminate the contract. In any event, it said the applicant was entitled to a refund of $11,539.94 from the deposit, accounting for work performed.
5. The respondent filed a counterclaim for loss of profit and overheads on the basis that the applicant repudiated the contract. It alleged that, by pleading in its Points of Claim that the respondent had repudiated the contract, the applicant itself repudiated the contract. In the alternative, if the contract was found to have been terminated under clause 19.4 of the contract, which the respondent disputed, the respondent sought profit and overheads under that clause.
6. In its Defence to the Counterclaim, the applicant took a different position on termination than in its Points of Claim. The applicant said it (not the respondent) terminated the contract under clause 19.4. It said the respondent 'acknowledged the termination and did not dispute it'.
7. The respondent ultimately did not pursue its counterclaim at hearing.
8. With the counterclaim not having been pursued, I made no decision about it at the hearing. However, relevant to the applicant's current submission, I note from the pleadings that clause 19.4 did not form the basis of the counterclaim. It is the applicant, not the respondent who pleaded that the contract was terminated under clause 19.4. This was denied by the respondent in its defence.
9. In its counterclaim, the respondent claimed damages for loss of profit and overheads on the basis that the applicant repudiated the contract. The respondent particularised its loss and damage as 20% of the contract price. Alternatively, if the contract was found to have been terminated under clause 19.4, which it disputed, then the respondent sought profit and overheads under item 6 of schedule 1 of the contract. The respondent only relied on clause 19.4 in its counterclaim, in the event the applicant succeeded in its allegation that the respondent terminated the contract under clause 19.4. This was an alternative claim in the calculation of loss of profit and overheads.
10. Accordingly, the argument put forward by the applicant that clause 19.4 did not assist the counterclaim does not persuade me to make a costs order against the respondent.
11. Although the respondent did not pursue the counterclaim, I do not consider it fair to make a costs order against it for that reason. The applicant's claim consumed the allocated hearing time. When the parties had concluded their evidence, the respondent advised that he would not pursue the counterclaim as this would require additional hearing time, and he did not wish to extend the time. This decision appears to have been aimed at saving time and cost for both parties. In its costs submission, the respondent maintains that the counterclaim was 'based on a genuine legal entitlement'. When the counterclaim was filed, the respondent was legally represented. The respondent was not legally represented at the hearing when the counterclaim was not pursued, and the respondent was not put on notice at that time that there may be costs consequences for not pursuing it. In these circumstances and given my findings below that the proceeding did not require lawyers, I do not consider it fair to order the respondent pay costs thrown away because the counterclaim was abandoned.
12. If the applicant relies on section 109(3)(c) in relation to any other costs (unrelated to the counterclaim), the basis upon which it seeks to do so is unclear. In any event, both parties gave lengthy submissions and oral evidence at the hearing in support of their respective positions on the reasonable price for work carried out under the contract. Whilst I ultimately accepted the applicant's assessment of labour hours, the respondent's claims (i.e. his costings as set out in a schedule) did not so lack merit from the outset that it would be fair to make an award of costs against him.
13. Similarly, this was not a situation where the applicant's assessment was undoubtedly stronger than the respondent's from the beginning. The oral evidence of the applicant's expert, Mr Grimes of Melbourne Quantity Services, was that he had very limited material in conducting his assessment, including that he did not have the relevant building contract.
14. Accordingly, I am not persuaded that I should exercise the Tribunal's discretion under section 109(2) having regard to section 109(3)(c).

1. Under section 109(3)(e), the Tribunal can have regard to any other matter the Tribunal considers relevant. The applicant submits that a relevant consideration is that the respondent 'failed to engage in good faith throughout the life of the matter where attempts were made to avoid Tribunal proceedings'.
2. Each party submits that the other refused to engage in discussions and unnecessarily prolonged the litigation. Neither party has provided any evidence of this. There is no evidence of formal offers of settlement having been made by either party. No claim for costs has been made pursuant to section 112 of the VCAT Act (on the basis that a settlement offer was rejected).
3. The applicant also submits that a relevant consideration is that the respondent placed the applicant 'in the position of having to defend themselves'. The applicant references paragraph 17 of the decision of Deputy President Lulham in Barbican Construction Group Pty Ltd v McColl (Building and Property) (Costs) [2025] VCAT 18.
4. In that case, the respondents submitted that subsection 109(3)(e) (amongst others) was relevant to their costs application against the applicant because they were put in the position of having to defend themselves against the applicant's claim. In paragraph 17 of his decision, Deputy President Lulham accepted that 'this was the situation in which the respondents found themselves'. Deputy President Lulham ultimately was satisfied that it was fair to award costs to the respondents having regard to subsection 109(3)(e) and also subsections 109(3)(c) (relative strengths of the claims made by each of the parties) and 109(3)(d) (the nature and complexity of the proceeding).
5. The current proceeding involves a different factual circumstance from Barbican Construction Group Pty Ltd v McColl. The costs claim in the current proceeding is made by the applicant, and the costs claimed include the costs the applicant incurred in prosecuting its own (originating) claim as well as responding to a counterclaim. Unlike the Barbican Construction Group Pty Ltd v McColl case, I have found (above) that the relative strengths of the parties' claims do not provide a basis for any costs order. Further, as outlined below, unlike the Barbican Construction Group Pty Ltd v McColl case, the issue in the current proceeding was simple. This proceeding related simply to how much of the deposit the applicant was entitled to be refunded after the building contract terminated.
6. The current proceeding did not involve a large number of issues. The parties agreed the builder was entitled to a reasonable price for work carried out under the contract. The parties also agreed about what that work comprised. The only issue in dispute was the value of work undertaken under the building contract. The work this comprised was not in dispute. The builder's margin and the hourly rates charged were not in dispute. The dispute related only to the number of hours of labour. This is not a complex issue.
7. The applicant chose to be legally represented at the hearing and the respondent consented to the applicant being represented. Each is entitled to their position on this. However, there was no particular need for the applicant to have legal representation in the proceeding given the issue in dispute was not complex, the difference between the parties' assessments was not substantial, the applicant had an expert witness and the respondent did not.
8. Accordingly, I am not persuaded by the applicant's submission that I should exercise the Tribunal's discretion under section 109(2) having regard to section 109(3)(e), in relation to the applicant's legal costs.
9. Whilst the issue in dispute was not complex, I am satisfied that the applicant was justified in obtaining expert opinion in the circumstances of this case. This is because the respondent, despite requests from the applicant, did not provide material to justify or explain its assessment. In the absence of such material, the only way for the applicant to check or respond to the assessment was to consult an expert.
10. In its written submission, the respondent states that it 'does not dispute the expert report fee ($3,135) or witness fees ($352)'.
11. For the reasons above, in the circumstances of this case, I am satisfied that it is fair to depart from the primary position under section 109, that each party bear their own costs in the proceeding, in relation to the expert's costs.
12. Separately, there is a presumption under section 115C(2) that, in certain types of proceedings, a party who has substantially succeeded in a proceeding is entitled to an order that the other party reimburse the fee the successful party paid in the proceeding. This is unless the Tribunal orders otherwise, having regard to the factors in section 115C(3).
13. The Tribunal's records indicate that the applicant paid an application fee of $523.10 on 5 March 2024.
14. This proceeding relates to the payment of money for work under a domestic building contract. This is a proceeding under the Domestic Building Contacts Act 1998 (Vic) and a type of proceeding to which section 115C(2) of the VCAT Act applies.
15. The applicant has substantially succeeded in the proceeding. I ordered the respondent pay the applicant the claimed sum. There is accordingly a presumption under subsection 115C(2) that the applicant is entitled to be reimbursed the fee paid, providing section 115C(3) does not apply.
16. Under section 115C(3), I am to have regard to:

(a) the nature of, and issues involved in, the proceeding; and

(b) the conduct of the parties (whether occurring before or during the proceeding), including whether the successful party has caused unreasonable delay in the proceeding or has failed to comply with an order or direction of the Tribunal without reasonable excuse.

1. I am not satisfied that the considerations in section 115C(3) in the current case upset the presumption that the respondent should reimburse the fee paid by the applicant.

1. I am satisfied that it is fair to order that the respondent pay the applicant's expert's costs of $3,487.00.
2. I am otherwise not satisfied that it is fair to make an order that the respondent pay the costs of the applicant in the proceeding, including reserved costs. Accordingly, the applicant's costs claim will otherwise be dismissed.
3. Having regard to section 115C of VCAT Act, the respondent must reimburse the applicant the Tribunal's filing fee of $523.10.