On 1 February 2005 I made orders in this matter.

I ordered on the claim in favour of the Applicant for $7,600.00. I dismissed the Counterclaim in which an amount of $75,000.00 had been claimed.

The Applicant now seeks costs pursuant to liberty reserved to make an application for the same.

The Applicant submits I should order costs having regard to s109(3) (c), (d) and (e) of the Victorian Civil and Administrative Tribunal Act 1998. The submission is that I should order party/party costs (on County Court Scale "D") until 29 September 2004. The submission then is that I should order solicitor/client costs on and from that date because of an Offer of Compromise which was served by the Applicant (offering to compromise the action for $2,500.00) but which was rejected by the Respondent.

An offer of compromise served under the Act must comply with ss113 and 114 of the Act: see s112(1)(c). The offer of compromise in this case does not do so. In particular, it specifies a period of acceptance of 7 days which is contrary to s114(2) which requires a minimum period of 14 days for acceptance. Further, although it provides for the payment of money, it does not specify when that money is to be paid which is the requirement of s113(4).

6.

It is argued, however, that even if the offer of compromise is not one complying with the Act, it may still qualify as a Calderbank offer. See Calderbank v Calderbank [1985]3 All ER 333; Cutts & Head [1983] EWCA Civ 8; [1984] 1 All ER 597. This is a view which is supported by the decision of Slicer J in Tasmanian Seafoods Pty Ltd v MacQueen (No3) [2004] TASSC 91 which was not cited to me. In that case (at [22]) his Honour said: "If the document was contrary to the Supreme Court Rules, it remained a Calderbank offer.

I am unable to agree with his Honour on this point, with respect. An offer of compromise which does not comply with the statutory provisions may or may not, in my view, constitute a Calderbank offer. It must depend on the circumstances of the case. But an offer of compromise does not, in my view, automatically constitute a Calderbank offer, if it does not comply with the statutory provisions. I say that because an offer, to constitute a Calderbank offer, must meet certain requirements that may not be met by a non-complying offer of compromise. For one thing, Calderbank offers are usually made by letter, and not in the form of a court document. Expressing an offer in the form of a non-complying offer of compromise, moreover, seeks to invoke statutory advantages on costs and seems to lack the conciliatory aspect required of a Calderbank offer. See Fasham Johnson Pty Ltd v Ware [2004] VCAT 1708.

I consider it quite possible, I wish to make clear, for a party to serve a Calderbank offer in proceedings before the Tribunal. That is, I do not regard ss112, 113 and 114 of the Act as necessitating an exclusive code on offers of compromise in the Tribunal. However, the offer of compromise in this case does not comply with those provisions and does not, in my view, constitute a Calderbank offer either.

I am unable in this case, therefore, to give the offer of compromise, which was served, a Calderbank effect.

However, that does not mean that the Applicant has not made out a case for costs. I agree with the observation of Senior Member Young in Australia's Country Homes Pty Ltd v Vasiliou, VCAT, 5 May 1999, that, like retail tenancies disputes, "domestic building disputes are also inter parties (sic) commercial disputes". Normally, in a domestic building dispute, such as the one in this case, a successful party can expect to recover costs. There is a difference, however, if the case is a small claim proceeding. There can be no expectation of an award of costs in such a case. However, in this case, although the Applicant has recovered only $7,600.00 he has, at the same time, defeated a Counterclaim of $75,000.

The case was a difficult one to conduct, and to manage, and I consider it would be unfair (having regard to s109(3) of the Act) to deprive the Applicant of his costs. The evidence in the case was highly technical and quite difficult to assess.

Accordingly I have formed the view that I should order costs in the Applicant's favour.

I propose to do so and to order them on a party/party basis according to County Court Scale "D". I cannot see that a case has been made out for any solicitor/client costs. I do not propose to regard the offer of compromise as a Calderbank offer. I am not bound to exercise my discretion under s109 to give it that effect even if I formed the view that it was a Calderbank offer. Moreover, I am not of the view that I should give it that effect considering that, in the sending of the offer, the main provisions of the Act were simply disregarded. In such circumstances, I am not persuaded that I should reward the Applicant in costs beyond normal party/party costs.

I so order.

I make directions accordingly.