1. The purpose of an award of costs is to compensate a party; it is not a form of punishment.[4]
2. The Tribunal's primary power to award costs arises from s 109 of the VCAT Act. The general rule is that each party is to bear their own costs in the proceeding (s 109(1)). That is the starting point for any costs decision before this Tribunal.
3. However, the Tribunal 'may', at its discretion, depart from this general rule and order a party to pay another party's costs if, and only if, it is 'satisfied that it is fair to do so' (s 109(2)).
4. In determining whether it is 'fair' to award costs in favour of one of the parties, the Tribunal must have regard to the following factors:
   1. whether, by the way it conducted the proceeding, one party unnecessarily disadvantaged another party (s 109(3)(a));
   2. whether a party is responsible for unreasonably prolonging the time to complete the proceeding (s 109(3)(b));
   3. the relative strengths of each party's claims, including whether a claim has no tenable basis in fact or law (s 109(3)(c));
   4. the nature and complexity of the proceeding (s 109(3)(d)); and
   5. any other matter that the Tribunal considers relevant (s 109(3)(e)).
5. In determining whether it is fair to award costs, the Tribunal should consider the totality of the above factors.[5]
6. The Victorian Court of Appeal has indicated that:

(3) Where there is a multiplicity of issues and mixed success has been enjoyed by the parties, a Court may take a pragmatic approach in framing the order for costs, taking into consideration the success (or lack of success) of the parties on an issues basis.

(5) Where a Court determines to make an order apportioning costs, then it does so primarily as 'a matter of impression and evaluation,' rather than with arithmetical precision, having considered the importance of the matters upon which the parties have been successful or unsuccessful, the time occupied and the ambit of the submissions.[6]

1. In GJB Building Pty Ltd v AI&PB Property Pty Ltd[7], Justice Nichols stated:

A Court will be reluctant to apportion costs between different issues depending on success or failure on those issues where it is likely to be difficult, if not impossible, to allocate items of costs between the different issues. Accordingly, the severability of the issues is an important factor. The issues should be 'sufficiently distinct' or 'separable'.

1. Provided that due consideration is given to the provisions of the VCAT Act relating to costs, in particular s 109, in my view these principles apply to the Tribunal; for example, where a party seeks costs in relation to time that they say was wasted by reason of the other party pursuing an unsuccessful element of their claim or defence.

B Mr Henderson's claim for a costs order in his favour

1. In his written submissions, Mr Henderson seeks orders to recover various amounts under ss 75, 109, 112 and 115B of the VCAT Act.
2. A claim for costs under s 75(2)[8] is not available here. Section 75 deals with summary dismissal or the striking out of a proceeding which is 'frivolous, vexatious, misconceived or lacking in substance' or is otherwise an abuse of process. Here, I conducted a full hearing on the merits of both Mr Henderson's claim and Ms Cox's counterclaim. There was no 'summary dismissal' of the counterclaim. There is no evidence to suggest that Ms Cox's counterclaim was, in any way, an abuse of process.
3. Mr Henderson seeks an amount 'to be determined by the Tribunal' for his 'loss of professional fees' in attending the hearing, directions hearings and responding to Ms Cox's counterclaim.[9] This amount is not available to Mr Henderson. A self-represented litigant, such as Mr Henderson, may be entitled to recover costs by way of out-of-pocket expenses, but may not recover costs for their own time.[10]
4. Mr Henderson seeks to recover from Ms Cox the following amounts:
   1. the sum of $809.50 'attributable to the respondent's decision to engage preferred vendors over the cheaper quotes provided by the applicant' for the removal and replacement of the combined drain;[11] and
   2. either $1,270 or $1,157 attributable to the alleged increased contribution by Mr Henderson towards the cost of rectifying the combined drain because the Tribunal held that, by at least August 2020, Ms Cox should have undertaken replacement of the combined drain.[12]
5. In seeking these amounts, Mr Henderson essentially is seeking orders for Ms Cox to reimburse him for parts of his liability under the orders that I made on 15 December 2024, particularly order no. 3.[13]
6. A party may only be ordered to pay another party's costs if they have been incurred 'in the proceeding'.[14] Costs 'in the proceeding' are costs 'necessary for the proper assertion or defence of the factual or legal claims that make up the ...proceeding'.[15] The above costs were not incurred by Mr Henderson in prosecuting his claim against Ms Cox nor in defending the counterclaim against him, and so Mr Henderson cannot pursue recovery of those amounts in seeking an order that Ms Cox pay his costs.
7. In any event, these amounts were the subject of the orders that I made in this proceeding on 15 December 2024. I have no power to address them a second time. Appeal to the Supreme Court is the appropriate avenue if Mr Henderson wishes to challenge my decision.
8. Mr Henderson's two remaining claims for costs orders are to recover:
   1. either the whole amount ($3,190) or half the amount ($1,595) paid by Mr Henderson to his plumbing expert, Mr Newell; and
   2. legal fees paid by Mr Henderson to his solicitors, WJ Gilbert & Co Lawyers in the sum of $1,380.91.
9. As outlined above, in determining whether it is fair to award costs to a party, I must have regard to the factors listed under s 109(3) of the VCAT Act. However, I must start with a presumption, under s 109(1), that each party must bear their own costs. This default position indicates that, unlike the courts, 'the Tribunal should be predominantly a no costs forum'.[16]

(i) Unnecessarily disadvantaged by the other party's conduct of the proceeding - s 109(3)(a)

1. Mr Henderson submits that Ms Cox's conduct of the proceeding unnecessarily disadvantaged him, because she failed to comply with various orders of the Tribunal. In his written submissions, Mr Henderson identifies four examples of alleged non-compliance: in October 2022 (once); and in March 2023 (three occasions).[17]
2. This proceeding has run for over 3 years. The parties appeared before the Tribunal for directions on 11 occasions. To date, the Tribunal has issued 14 sets of orders. It is true that, during the life of this proceeding, the Tribunal extended time for Ms Cox to comply with various orders. However, the Tribunal also extended time for Mr Henderson to comply with orders.[18] I have minimal evidence before me regarding the context in which the orders referred to by Mr Henderson were made, save for an extensive, 11-page chronology, which only covers the period from 2003 until 14 November 2022.[19]
3. Mr Henderson also alleges that Ms Cox failed to agree to provide discovery, leading to 3 additional directions hearings on 6 March 2023, 11 April 2023 and 14 November 2023. I have no evidence before me that supports that contention. On their face, the Tribunal's orders do not indicate that Ms Cox's conduct resulted in these directions hearing.
4. Even if Mr Henderson is correct in his assertions regarding non-compliance by Ms Cox with orders during this proceeding, I have no evidence before me that such non-compliance with orders 'unnecessarily disadvantaged' Mr Henderson. Mr Henderson's rights to pursue his claim and defend the counterclaim against him in this proceeding do not appear to have been prejudiced by any such conduct.
5. Mr Henderson asserts that Ms Cox did not comply with some orders of the Tribunal. However, taking into account the type of conduct contemplated by parliament under s 109(3)(a), he has not pointed to any specific adjournments of directions hearings, any failure to comply with the VCAT Act, any attempts to deceive him, or any vexatious conduct on the part of Ms Cox.
6. Accordingly, this factor does not weigh in favour of a costs order in Mr Henderson's favour.

(ii) Unreasonably prolonging time to complete the proceeding - s 109((3)(b)

1. Mr Henderson alleges that Ms Cox unreasonably prolonged the completion of the proceeding by allegedly causing various directions hearings to be convened and failing to comply with various Tribunal orders (referred to in paragraphs 23 and 25 above).[20] For the reasons given in paragraphs 24, 26 and 27 above, I am not persuaded that Ms Cox unreasonably prolonged the completion of this proceeding.
2. Mr Henderson also submits that Ms Cox unreasonably prolonged the final hearing by reference to: discussions between myself and Counsel for Ms Cox, Mr Allen, regarding historical sewer plans; 'an excessively long cross examination' of Mr Henderson; and a 'lengthy discourse with the Member at the commencement of the hearing'.[21]
3. The discussions between myself and Mr Allen - which I instigated - assisted me in better understanding the legal issues to be addressed at the hearing, in particular, the operation of the Water (Estimation, Supply and Sewerage) Regulations 2014 ('Regulations') and their interplay with s 144(1)(b) of the Water Act, as well as the scope of the Tribunal's powers in respect of that legislation. As addressed in paragraphs 50-53 of my Reasons, this included Mr Allen subsequently providing historical evidence to explain how the parties' properties were deemed to be 'serviced properties' for the purpose of that legislation. These matters were necessary and appropriate so that the Tribunal could do justice to the parties' respective claims. Furthermore, in discussing these issues with Mr Allen, I made it very clear that I had no concluded view of the merits of the parties' claims against each other; I was seeking a better understanding of the surrounding legal framework.
4. In my view, Mr Allen's cross-examination of Mr Henderson was not excessively long. As well as addressing matters relevant to Ms Cox's counterclaim, Mr Allen necessarily needed to cross-examine Mr Henderson in relation to a broad range of issues that he had raised when he gave evidence-in-chief.
5. Accordingly, the respondent did not prolong the time taken to complete the proceeding.
6. This factor does not support an order that Ms Cox pay Mr Henderson's costs.

(iii) Relative strengths of the parties' claims - s 109((3)(c)

1. As to the question of the relative strengths of the claims made by each party, including whether Ms Cox's claim has no tenable basis in fact or law, it is important to note that the fact that one person is successful 'does not automatically mean that the strength of the claim of the other party was so weak as to attract the operation of s 109(3)(c)'.[22] Otherwise, s 109(3)(c) of the VCAT Act might subvert the general rule that each party is to bear their own costs. Something more is required for this factor to weigh in favour of a costs order; there needs to be 'substantial disparity between the strengths' of the parties' cases.[23]
2. Also, the question of 'relative strengths' should be considered prospectively, not in hindsight.[24]
3. I do not consider that the applicant's claim was so clearly superior, and the respondent's defence was so clearly weak, that this should point to an award of costs in the applicant's favour.
4. Both parties partly 'succeeded'. Mr Henderson 'succeeded' in securing a minimal damages award in his favour ($850) and in having Ms Cox's counterclaim ($928.40) dismissed. Ms Cox 'succeeded' in obtaining orders for Mr Henderson to contribute 50% of the costs to rectify the combined drain. And both parties 'succeeded' in obtaining an order for Ms Cox to carry out that work.
5. This factor has no impact in determining whether it is fair to order costs in favour of Mr Henderson.

(iv) Nature and complexity of the proceeding - s 109((3)(d)

1. Each party sought an order for damages against the other under s 16(2) of the Water Act for various costs incurred in remedying blockages to the combined sewerage drain, the subject of this dispute.
2. The quantum of the claims was very modest. Mr Henderson's claim was for $825, and Ms Cox's counterclaim was for $928.40. Mr Henderson succeeded, and Ms Cox's counterclaim was dismissed.
3. At least in relation to domestic building disputes:

It has long been held that the Tribunal does not usually award costs in domestic building disputes involving a small claim. If costs were commonly awarded in small claims, that may discourage parties from coming to the Tribunal seeking to have their small claim adjudicated.[25]

1. I see no reason why the same principles should not also apply to disputes under the Water Act. Both types of claims are essentially civil disputes where parties usually seek orders for damages and/or some form of injunctive relief. In both cases, parliament has expressly vested jurisdiction for these types of claims in the Tribunal.[26] They both involve the operation of statute as well as common law principles. In respect of both types of claims, the Tribunal must act 'according to the substantial merits of the case' and must conduct a proceeding 'with as little formality and technicality' as is permitted.[27]
2. Accordingly, if addressed in isolation, the amounts claimed here are so modest that no costs order is warranted.
3. Both parties sought an order under s 19(5)(b) of the Water Act that Ms Cox arrange for works to be carried out to rectify the failed earthenware combined drain.
4. Both parties were successful in seeking that relief. This is a neutral result. No costs order should be made solely by reference to this aspect of the dispute.
5. Under s 19(5)(c) of the Water Act, I ordered Mr Henderson to pay the sum of $8,974.00 as his contribution towards the costs of replacing the combined drain, as arranged by Ms Cox.
6. This is also a modest sum. Of itself, it does not justify an order for costs.
7. This proceeding carried with it some complexity, particularly as to the operation and effect of the Regulations as they pertain to combined sewerage drains. I am unaware of this issue having been addressed previously by the Tribunal.
8. Notwithstanding the element of complexity in construing these Regulations, for the reasons outlined above, in my view, the nature and complexity of the proceeding weighs in favour of a decision that no costs order be made, in line with the general rule under s 109(1).

(v) Any other relevant matter - s 109((3)(e)

1. Mr Henderson submits that Ms Cox could have applied to Greater Western Water to apportion rectification costs between Mr Henderson and Ms Cox. I don't see how this is relevant to Mr Henderson's claim for costs. Mr Henderson sued Ms Cox in this Tribunal. Ms Cox defended that claim and raised a counterclaim. It was her lawful right to do so, even if she enjoyed alternative rights.
2. Also, in seeking a costs order in his favour, Mr Henderson says that Ms Cox would have been better off if she had accepted either:
   1. his very brief proposal for shared future management of the combined drain contained in a 'Deed of Agreement', as sent by his solicitors to Ms Cox's solicitors on 22 July 2021;[28] or
   2. his offer to contribute $1,500 towards the cost to reline the combined sewer, made by email to Ms Cox's lawyers on 15 September 2022.[29]
3. To assess whether an offer can be taken into account on the question of costs, I must be able to compare the terms of that offer against the orders made on 15 December 2024, so as to assess whether Ms Cox should have accepted the offer because it was more favourable to her. This is true irrespective of whether the offer has been formally made under ss 112-114,[30] or the offer is a relevant matter to be considered under s 109(e) of the VCAT Act.[31]
4. I accept the respondent's submission[32] that neither the proposed shared management plan contained in the Deed, nor the offer to contribute towards relining the combined drain, can sensibly be compared with the Tribunal's detailed orders under various provisions of the Water Act. Mr Henderson's proposals, respectively, involved ongoing shared responsibilities for managing the combined drain, and shared contribution towards the cost of relining the drain. By contrast, the Tribunal's decision was that Ms Cox was solely responsible for having the drain replaced, and Mr Henderson was liable to reimburse Ms Cox for half of the cost of that work.
5. For these reasons, Mr Henderson's proposals for resolution have no bearing upon the question whether I should order costs in his favour.

C Ms Cox's claim for a costs order in her favour

1. Ms Cox seeks an order that Mr Henderson pay her the cost of one day of the hearing, fixed in the amount of $5,472.00 (her actual costs) or $3,283.20 (50% of her actual costs, by reference to the likely application of the County Court Scale for costs) essentially on two grounds:
   1. that 'the way in which Mr Henderson conducted the hearing, despite repeated cautions from Member Horan, prolonged the time required by a day'; and
   2. more generally, the way that Mr Henderson conducted the proceeding 'supports a costs order of some sort'.[33]

(i) Unnecessarily disadvantaged by the other party's conduct of the proceeding - s 109(3)(a)

1. On behalf of Ms Cox, Mr Allen observed that:
   1. seven of the 11 directions hearings arose from applications by Mr Henderson;
   2. Mr Henderson made numerous irrelevant, inappropriate and unfounded allegations against Ms Cox, such as allegations of her 'unreasonable and unneighbourly behaviour'; and
   3. the volume and detail of documents upon which Mr Henderson relied was unnecessary and unreasonable 'even for a self-represented litigant' which obscured the precise nature of his claim.[34]
2. I do not know why Mr Henderson applied for 11 directions hearings, as alleged. No doubt, each occasion has its own story. Conceivably, it may have been inappropriate for him to have done so, or it may have been justifiably prompted by breaches of orders, or some other conduct, by Ms Cox. I have insufficient evidence before me to determine this issue.
3. I accept that the claims made and documentation submitted by Mr Henderson were relatively voluminous, difficult to navigate and in some instances irrelevant or barely relevant. This, no doubt, unnecessarily disadvantaged Ms Cox and her advisers in seeking to understand the case against her.
4. While this factor weighs in favour of a costs order against Mr Henderson, it does not carry great weight.
5. First, these matters did not have a major impact upon the duration of the final hearing, which is the foundation of Ms Cox's claim for costs. For example, although contained in his points of claim, Mr Henderson did not rely upon his allegations of 'unreasonable and unneighbourly behaviour' at the final hearing.
6. Secondly, Ms Cox raises no specific allegations that Mr Henderson caused adjournments of directions hearings, failed to comply with the VCAT Act, attempted to deceive Ms Cox, or acted vexatiously, being the particular matters listed under s 109(3)(a).
7. As Mr Allen quite properly acknowledges, Mr Henderson's conduct did not amount to vexatious conduct.[35] This occurs where litigation 'is conducted in a way productive of serious and unjustified trouble or harassment, or if there is conduct which is seriously and unfairly burdensome, prejudicial or damaging.'[36] That was not the case here.
8. Finally, while the fact that Mr Henderson represented himself during the proceedings does not preclude him from having a costs order made against him, it is a mitigating factor. This issue is considered further below.

(ii) Unreasonably prolonging time to complete the proceeding - s 109((3)(b)

1. Mr Allen's primary submission is that Mr Henderson prolonged unreasonably the completion of this proceeding, as the final hearing 'ought to have been completed in two days but instead it took three'. Mr Henderson spent significant time addressing issues that were essentially 'irrelevant, of little evidentiary weight and/or misconceived'; in particular:
   1. Mr Henderson's argument that Ms Cox was liable for work that had been carried out on her property prior to the time when she became the owner, which allegedly did not comply with various Australian Standards; and
   2. his lay opinion regarding 'the effects that trees have on buildings and other technical matters' which was unsupported by opinion evidence from an independent expert.[37]
2. Mr Allen submitted that 'of significant importance ... is that Mr Henderson refused to move on from these points despite being told numerous times by Member Horan that they were irrelevant and would be given little weight'.[38]
3. I accept Mr Allen's submission that Mr Henderson prolonged the final hearing. As I stated in my Reasons:
   1. Much of Mr Henderson's evidence was irrelevant, of little evidentiary weight/or misconceived. This included: detailed opinion evidence from Mr Henderson himself about building and plumbing standards and practice reference to witness statements from persons who were not called to give evidence; and alleging that in 2002-2004, prior to Ms Cox purchasing her property, non-compliant plumbing work was carried out as part of the extension work on that land. The fact that much of Mr Henderson's arguments was irrelevant or tenuous was pointed out to him on several occasions during the hearing but, on most occasions, he ignored the caution and soldiered on.
4. But does this mean that Mr Henderson 'unreasonably' prolonged the completion of the hearing? And, in any event, does that mean that it is fair to order costs against him?
5. What does the term 'prolonging unreasonably' mean under s 109(3)(b)? One must ask: Objectively, what would a person in Mr Henderson's position, acting reasonably, have done in all the circumstances?
6. In my view, the fact that Mr Henderson represented himself in the proceeding is a significant, relevant factor. Mr Henderson clearly had little, if any, past experienced in litigation.
7. The Tribunal is set up to accommodate self-represented litigants, providing people with access to justice where they have not engaged lawyers to represent them. This intention was expressly acknowledged by the Attorney-General, Mrs Wade, when introducing the VCAT Act to parliament in 1998.[39] The Tribunal's obligations in dealing with a party who is not legally represented is well-established.[40]
8. A self-represented party is more likely to:
   1. be unqualified, untrained and have little or no experience in running a case before a Court or Tribunal;
   2. raise issues and rely upon facts that are irrelevant or, at least, carry very little persuasive weight;
   3. pursue lines of arguments that are misguided;
   4. misconstrue the meaning and operation of legislation and the common law, including technical legal concepts such as damages and causation;
   5. express their own opinion, without recourse to a suitably qualified, independent expert; and
   6. misunderstand the trial process, such as when leading questions are permitted and when they are not permitted.
9. Accordingly, it is a truism to say that a final hearing, where one or more parties are self-represented, is likely to run for a longer period than where the parties have legal representation.
10. Dealing with the sorts of issues that arise when a party is self-represented takes additional time. It tends to prolong a final hearing. However, given the right of a person to represent themselves before the Tribunal and to avail themselves of the protections afforded to them when doing so,[41] a final hearing cannot be said to have been prolonged 'unreasonably' merely because a person represented themselves at that hearing.
11. In Jones v Symmetric Homes Pty Ltd,[42] in addressing a similar issue, Member Sweeney stated:
    1. Whilst it may be that the conduct of the Owner has been productive of frustration and annoyance for the Builder, these manifestations of conduct are not untypical of self represented parties at the Tribunal. I have observed the Owner, Ms Jones, at the hearing on the first day of the hearing in December 2019 and later on during the part day hearing in August. Ms Jones's presentation of her case was at times frustrating, including the unverified, undated and unnumbered photos put in evidence.
    2. However, Ms Jones conduct of the proceeding was in my opinion not by design or signifying an ulterior motive or lack of good faith. The conduct complained of did not unnecessarily or unreasonably prolong the hearing...
12. The question before me must therefore be: Did Mr Henderson's conduct prolong the hearing beyond what would be expected of a typical self-represented party in all the circumstances of this case?
13. I accept Mr Allen's submission that, on a number occasions, Mr Henderson failed to move on after I pointed out to him that the matters he was addressing appeared to be irrelevant and/or carried little, if any, evidentiary weight.
14. At least to some extent this conduct falls within the bounds of what is reasonably expected of a self-represented litigant. This includes times when Mr Henderson continued to address a particular issue, even after I had cautioned him that his arguments or evidence appeared not to be advancing his case. Given the multiplicity of novel issues facing a self-represented litigant when running their own trial, it is reasonable and understandable that, at times, they may not heed an initial caution by the presiding member.
15. Secondly, the reason for Mr Henderson pressing on regardless in pursuing various lines of argument was a legitimate (but, at times, misguided) belief in his case. There was no suggestion here that Mr Henderson was egregiously delaying the running of the hearing. The wasted time arose because of Mr Henderson's indomitable pursuit of his claim against Ms Cox.
16. I accept Mr Allen's submission that, on occasions, Mr Henderson stepped over the mark and unreasonably prolonged the final hearing, particularly when pressing on with his detailed explanation of technical issues relating to compliance with various Australian standards that appeared to relate to work carried out on the property prior to Ms Cox becoming the owner.
17. Accordingly, I find that Mr Henderson was responsible for unreasonably prolonging the time taken to complete the proceeding.
18. Do the occasions when Mr Henderson unreasonably failed 'to move on' amount to a wasted day of hearing time?
19. It is very difficult to ascertain how much time Mr Henderson 'wasted' in the context of the usual fray of a hearing, let alone ascertaining how much time he 'unreasonably' wasted, as a self-represented litigant actively prosecuting his case. As stated above, this assessment does not require 'arithmetical precision'; it is a matter of 'impression and evaluation'. My impression is that it did not amount to one day's delay.
20. In any event, given the way that the proceeding was conducted over the three days, the issues complained of by Ms Cox[43] were not 'sufficiently distinct' or 'separable' for the purpose of assessing the amount of time that Mr Henderson 'unreasonably' wasted.
21. One further point of clarification. I remain of the view that, in the context of this relatively modest dispute (where both parties sought the same order for work to be carried out), the amount of documentation and the extent of oral evidence was disproportionate.[44] However, this should not be seen as a criticism of how Ms Cox ran the final hearing.[45] It is merely a sad reflection on the choices made by one or both parties that led to this trial and judgment.

(iii) Relative strengths of the parties' claims - s 109((3)(c)

1. Mr Allen contends that, while Ms Cox's counterclaim was dismissed, 'the orders she sought were substantially made', noting that Mr Henderson unsuccessfully contended that Ms Cox 'be responsible for the whole cost of the replacement of the sewer pipe'.[46]
2. In my view, this does not accurately reflect the outcome of this dispute.
3. Importantly, I held that Ms Cox was solely liable for the whole cost of removing and replacing the combined drain by reason of her duties under reg 19(2) of the Regulations.[47]
4. Secondarily, I held that Mr Henderson was liable to reimburse Ms Cox for half of the cost of that work,[48] particularly because he was jointly and severally liable for those costs under reg 19(3) of the Regulations.
5. I therefore do not accept the submission that the orders substantially accorded with the orders sought by Ms Cox.

(iv) Nature and complexity of the proceeding - s 109((3)(d)

1. This factor is addressed at paragraphs 40-50 above.

1. Mr Allen submits that, although Ms Cox's settlement offers 'strictly' were not more favourable to Mr Henderson than the final orders, the making of these offers, as well as Ms Cox's 'position generally in the litigation, weighs positively towards her being awarded costs'.[49]
2. Ms Cox refers to the following settlement offers:
   1. by letter dated 4 November 2022,[50] Ms Cox's solicitors made an open offer to settle the proceeding on alternative bases:
      1. the parties jointly engage a plumber, Drainpro to carry out remedial work according to its proposed scope of work, with costs shared equally between Ms Cox and Mr Henderson; or
      2. the parties jointly engage an alternative plumber, identified by Mr Henderson, to carry out Drainpro's proposed scope of work at a cheaper price, with costs equally shared between Ms Cox and Mr Henderson;
   2. by email dated 12 July 2023,[51] Ms Cox's solicitors made an offer on a without prejudice basis, for Mr Henderson to select one of two Drainpro quotes to carry out remedial work, and for the parties to share the costs equally.
3. There is one important difference between the terms of these offers and the outcome of the litigation. I held that, under reg 19(2) of the Regulations, Ms Cox was solely liable to carry out the remedial work on her property. Her obligation to remedy the failure of the combined drain on her property was absolute; it was not conditional upon Mr Henderson contributing a share.
4. As I stated in my Reasons:
   1. Ms Cox argues that she was not required to carry out the remedial/replacement work to the earthenware section because Mr Henderson failed to contribute towards the cost of that work. Given that the duty under reg 19(2) applied to 'each' owner, Ms Cox had an obligation to carry out the required work on her land irrespective of whether Mr Henderson was liable to contribute towards the cost of that work. The Regulations do not provide that contribution by one owner towards the cost of remedial work is a precondition to the other owner carrying out that work in accordance with their duty to do so.

1. An objective of the Regulations is to provide for the regular maintenance and cleaning of works, such as a sanitary drain. This objective is not achieved if a person is permitted to defer such maintenance work unless and until others have agreed to contribute their share of the cost. Health, safety, hygiene and protection of the environment should take precedence over the question of contribution towards the cost of such work.
2. Accordingly, contrary to the terms of the settlement offers that she made, Ms Cox's liability to remedy the combined drain was not predicated upon Mr Henderson's liability to reimburse her for half of the cost.
3. I therefore am not persuaded that these offers speak in Ms Cox's favour on the question of costs.

D Determination - totality of the above factors

1. None of the factors under s 109(3) supports a costs order in favour of Mr Henderson. In my view, it would not be fair to do so.
2. Two interrelated factors support Ms Cox's claim for costs in her favour; namely, my findings that Mr Henderson's conduct of the proceeding unnecessarily disadvantaged Ms Cox, and that Mr Henderson was responsible for prolonging unreasonably the time taken to complete the proceeding.
3. For the reasons given at paragraphs 61-64 above, in the absence of any vexatious conduct or similar seriously aberrant behaviour, any disadvantage suffered by Ms Cox by reason of Mr Henderson's conduct does not carry great weight.
4. While I accept that Mr Henderson prolonged the time taken to complete the hearing, the primary reason for this was that Mr Henderson is a self-represented litigant. Much of the delay can be attributed to this fact.
5. I also accept that, to some extent, Mr Henderson unreasonably prolonged completion of the hearing when he failed to heed repeated cautions that he was traversing irrelevant material and endeavouring to persuade me by reference to his own opinion on technical, building and plumbing issues. It is difficult to estimate the amount of unnecessary and unreasonable delay that Mr Henderson caused (beyond that reasonably expected of a self-represented litigant), but I do not think it amounted to one day of hearing time.
6. However, the most telling factor in deciding whether to order costs in Ms Cox's favour is the nature and complexity of this proceeding.
7. Mr Henderson was successful in his damages claim for the modest sum of $850 and in having Ms Cox's counterclaim for damages dismissed. Ms Cox successfully obtained an order for Mr Henderson to pay half of the remediation costs. As for the central element of the case - an order for Ms Cox to carry out remedial work - both parties were 'successful' in obtaining that order.
8. In the usual course, a case such as this should not warrant an order for costs to either party. Given the slim difference between the parties' level of 'success', and the very modest amounts in dispute, I am not persuaded to depart from the general principle that each party should bear their own costs of this proceeding.

Mr Henderson's claim for reimbursement of fees paid to the Tribunal

1. Mr Henderson seeks reimbursement from Ms Cox for the sums he paid to the Tribunal, being either the whole amount ($589.65) or half the amount ($294.82) paid as hearing fees, and the amount paid as the initial Tribunal lodging fee ($494.50).
2. In deciding whether to make such an order under s115B of the VCAT Act, I must consider:
   1. the nature of the proceeding and issues involved. I addressed this element at paragraphs 40-50 above;
   2. the parties' conduct before and during the proceeding. I addressed this element at paragraphs 23-34 and 57-84 above; and
   3. the result of the proceeding. I addressed this element at paragraphs 35-39 and 86-90 above.
3. For the reasons contained in those paragraphs, and in paragraphs 98-105 above, it is not appropriate to make the order sought by Mr Henderson.
4. Accordingly, Mr Henderson's claim that Ms Cox should reimburse him for Tribunal fees is dismissed.

[1] Henderson v Cox (Building and Property) [2024] VCAT 1196 (Horan M) ('Reasons').

[2] Including 57 pages of attached documents.

[3] Including 112 pages of exhibited documents.

[4] Al-Hakim v Monash University & Ors [2000] VCAT 818, 9 (McKenzie DP).

[5] Vero Insurance Ltd v The Gombac Group Pty Ltd [2007] VSC 117, [22] (Gillard J).

[6] Chen & Ors v Chan & Ors [2009] VSCA 233, [10] (the Court).

[7] [2024] VSC 790, [9].

[8] Applicant's Written Submissions, [4].

[9] Applicant's Written Submissions, [4] item 3.

[10] Ganesh v National Australia Bank Limited [2021] VSCA 45, [88] (the Court).

[11] Applicant's Written Submissions, [4] item 4.

[13] In his written submissions, Mr Henderson expressly refers to order no. 3 and paragraphs 114 and 118 of my Reasons: Applicant's Written Submissions [4] items 4 and 5.

[15] Morphy v Beaufort Townsville Pty Ltd (Civil Claims) (Costs) [2019] VCAT 67, [54-66] (Ussher M).

[16] A K Freund Pty Ltd v Kameel Pty Ltd [2004] VCAT 1336, [48] (Macnamara DP).

[17] Applicant's Written Submissions, [5(v)(a)-(d)].

[18] For examples, see order 6 dated 6 March 2023 (as varied by order 1 dated 8 March 2023), order 1 dated 23 March 2023 and order 3 dated 11 April 2023.

[20] Applicant's Written Submissions, [5(iv)(a) and (b)].

[21] Applicant's Written Submissions, [5(iv)(d)].

[22] Kafataris v Bookmakers & Bookmakers' Clerks Registration Committee (Occupational and Business Regulation) [2008] VCAT 577, [23] per Bowman J.

[23] Hummel Homes Pty Ltd v Mitchell (Building and Property) (Costs) [2020] VCAT 659, [32]-[33] (Walker SM) citing with approval Beasley v Department of Education and Training (Anti Discrimination) [2006] VCAT 2044, [20] (McKenzie DP).

[24] Cooper v Boroondara CC [2001] VCAT 2429 at [31] per Horsfall DP; Sixty-Fifth Eternity Pty Ltd v Boroondara CC [2010] VCAT 310, [7] (Macnamara DP).

[25] Singh v Pivot Construction Group Pty Ltd (Costs) (Building and Property) [2021] VCAT 1065, [26] (Horan M) citing Vuka Homes v Couty (Domestic Building) [2005] VCAT 1301, [12] (Walker SM) and Buzzbee Homes Pty Ltd v Beattie (Domestic Building) [2010] VCAT 511, [27] (Walker SM).

[26] Water Act, s 19; Domestic Building Contracts Act 1995, ss 53 and 57.

[28] Applicant's Written Submissions, [5(ii)]. See also [TB 224-226, 519]

[29] Applicant's Written Submissions, [6].

[30] In my view, these offers do not satisfy the requirements of ss 112-114. The Deed and the settlement offer each provides for the payment of money but neither specifies when the money is to be paid (s 113(4)). Also, the Deed was not open for acceptance for a specified period of no less than 14 days (s 114(2)).

[31] Velardo & Anor v Andonov [2010] VSCA 38 [39]-[40] (Ashley JA).

[32] Respondent's Reply Submissions, [2(d)].

[33] Respondent's Written Submissions, [3].

[34] Respondent's Written Submissions, [17].

[35] Respondent's Written Submissions, [18].

[36] State of Victoria v Bradto Pty Ltd & ors [2006] VCAT 1813, [33] (Bowman VP) cited with approval in 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216, [4].

[37] Respondent's Written Submissions, [19]-[20].

[38] Respondent's Written Submissions, [21].

[39] Victoria, Parliamentary Debates, Legislative Assembly, 9 April 1998, 972 (Mrs Wade, Attorney-General).

[40] Crowe v Strictly Cabinets Pty Ltd (Building and Property) [2023] VCAT 1141 ('Crowe'), [10] (Horan M).

[41] Such as the Tribunal's obligations under s 97 of the VCAT Act. See also Crowe (above), [10].

[42] (Building and Property) [2020] VCAT 1152 (Sweeney M).

[45] Respondent's Written Submissions, [22].

[46] Respondent's Written Submissions, [24].

[49] Respondent's Written Submissions, [26]-[27].