1. To avoid duplication, I refer to my primary orders in this matter dated 29 January 2009. In these orders I:
   • affirmed Council's Notice of Refusal to Grant a Permit in relation to the P1439/2008 merit proceeding; and
   • made various findings and orders in relation to the P2729/2007 enforcement proceeding brought by Council.
2. Both of these proceedings related to contentious works carried out by the tenant "Great Avenue Pty Ltd" to the southern wall of the hotel of the historic hotel building on the subject land. In particular, I ordered that certain reinstatement works take place by 30 April 2009 (or any later date confirmed by Council) - see my Order 3.
3. In my Order 4 I reserved the costs of the enforcement proceeding and made provision for any party to claim their costs, including the other party against whom costs are claimed having the chance to respond. In due course I received a costs submission from Russell Kennedy lawyers on behalf of Mitchell Shire Council, under cover of their letter dated 18 February 2009. In summary, this submission set out the reasons why Council claimed total legal fees of $12,646.00 against the relevant tenant Great Avenue Pty Ltd. The final page of the costs submission gives a breakdown of the nature of the work involved and the sub-totals involved.
4. I then received a submission in response from Chiodo & Madafferi solicitors dated 5 March 2009 responding to the Russell Kennedy costs submission and providing arguments why Great Avenue Pty Ltd should not be subject to any costs order.
5. I then issued further directions dated 11 May 2009, seeking an update from the parties regarding the status of the relevant remediation works.
6. I have since received further correspondence which confirms that there is little if any evidence of any remediation works carried out as at mid May 2009.
7. I have taken into account the various further submissions and correspondence since the hearing of this matter, in making my costs findings set out below.

1. The relevant statutory provision here is Section 109 of the Victorian Civil and Administrative Tribunal Act 1998 ("Act"). In summary, it provides that although the starting point with Tribunal hearings is that each party bears their own costs, is also the case that various criteria is provided which the Tribunal can rely on in potentially making a costs order against one or more parties. Furthermore, I accept that the pattern of previous Tribunal costs rulings is that the Tribunal commonly is more inclined to make costs orders in enforcement proceedings. I see the philosophy behind this pattern as being that, with enforcement proceedings, the person against whom costs is claimed has brought the situation upon him or herself by causing the breach and then failing to deal with the problem without the need for a Tribunal hearing.
2. The situation here, I am satisfied that is fair and reasonable that some form of costs order be made against Great Avenue Pty Ltd, in relation to the various unlawful works carried out to the historic hotel building.
3. In particular, I rely on the fact that the representative of Great Avenue Pty Ltd at the hearing of this matter conceded the offending works were carried out by Great Avenue Pty Ltd.
4. Otherwise, I rely here on the fact that:
   • it is clear to me that the Red Lion Hotel is one of the most important/prominent heritage buildings in Kilmore. Accordingly, the Tribunal takes very seriously the damage to the heritage fabric that has been caused by the unlawful works here;
   • to the extent that Great Avenue Pty Ltd sought to justify the works on the basis that this would allow easier patron access to the nearby beer garden, as I indicated in my primary findings, I do not see this type of "patron convenience" consideration as carrying any real weight in terms of justifying the unlawful works involved;
   • I consider that it may well have been possible to avoid a formal Tribunal hearing if Great Avenue Pty Ltd had promptly acted upon the breach and remediated the relevant works, without needing a Tribunal hearing to enforce this situation.
5. I can also indicate for the record that I am disappointed that notwithstanding the clear requirements set out in my primary orders, as at mid May 2009 the necessary remediation works apparently have not yet progressed in any meaningful way. The parties are reminded that a person or company failing to comply with a Tribunal order may be found to be in contempt of the Tribunal. Under Section 137(5)(b) of the Act the maximum fine for a corporation found to be in contempt is $500,000.

1. Putting one side of this stage the question of whether any costs order should be made on a full indemnity compared to a party/party basis, I consider that the quantum of costs being claimed (ie $12,646.00) is fair and reasonable. I accept that there would have been substantial work involved in preparing for the hearing, the relevant documentation, arranging for the presentation of expert evidence, together with attending at the hearing.
2. I also note here that Council has not sought reimbursement for the costs of it engaging Ms Keeble to provide expert heritage evidence at the Tribunal hearing of this matter.

Should any costs be paid on a full indemnity compared to a party/party basis?

1. It is fair to say that in most Tribunal costs orders, costs are to be paid on a party/party basis compared to a full indemnity basis. My previous approach in this regard has been that if I consider party/party costs to be appropriate, then I apply a one-third discount on the full actual costs involved.
2. In terms of why the Tribunal rarely awards full indemnity costs, my understanding is that the aim here is to avoid inadvertently promoting speculative costs claims by parties before the Tribunal. However, on occasion full indemnity costs awards are made, particularly where the offending party is seen as having acted in a vexatious or bloody-minded manner.
3. I am not satisfied that such exceptional circumstances apply here. Whilst it is still true that the Tribunal takes very seriously the damage to the heritage fabric involved here, I do not accept that Great Avenue Pty Ltd has acted in such a blatantly cavalier manner as to justify a full indemnity costs award.
4. On this basis, I consider that a one-third discount on the total costs claimed by Council is appropriate. On this basis, I consider an appropriate costs award (rounded down) should be $8,000.00.
5. In closing, I note for the record that if the previous Tribunal orders have not been complied with, the onus rests with Council not the Tribunal, if further steps are to be taken to progress the remediation of the unlawful works.