On 21 March 2007, those applications were heard and the claim as against North Geelong Real Estate was dismissed and the Applicant was ordered to pay part of that Respondent's costs. The application as against Senia and Associates was not dismissed. The Applicant was present on that day and was directed on that day to file and serve particulars of her claim against Senia and Associates by 4 April 2007 and to advise by that date whether she withdrew the claim against Michael Watt, as his current address was still not identified.

The Tribunal then received from the Applicant a letter dated 30 March 2007, notifying that she withdrew the claim and on 4 April 2007 the Tribunal made an order in chambers granting leave for that withdrawal. Senia and Associates then applied for costs. After an adjournment because the Tribunal was unavailable on the first scheduled date, I heard the costs application and ordered the Applicant to pay part of the costs of Senia and Associates.

1. The Tribunal's power to award costs is found in section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act which gives the Tribunal a broad discretion to award part, all or even no costs against the withdrawing party. Transport Accident Commission v Busuttil [2001] VSC 325, Fernandez v Amatek [2001] VCAT 1979.

1. I am going to make an order for costs against Ms Juresko, but not for anything like the amount which Mr Senia (of Senia and Associates) is seeking. I will explain to you my reasons for both parts of that decision and how I have reached the figure that I have reached.

2. First of all, the relevant statute is section 74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998, which provides that if an Applicant withdraws an application the Tribunal may make an order that the Applicant pay all or any part of the costs of the other parties to the proceeding. There is a decision which I am guided by to some extent of His Honour Justice Batt in Transport Accident Commission Coyle [2001] VSCA 236; [2001] 3 VR 589, where he observed that Section 74(2)(b) does not deal with the content of a costs order. It is an empowering provision that authorises the Tribunal to award costs against an Applicant after an application has been withdrawn. If it were not for that provision, then the Tribunal might not have the authority to make a costs order after an application has been withdrawn, because usually once something is withdrawn then it is over and the Tribunal has no power to make further orders.

3. There is a disagreement amongst the authorities and various decisions made by the Tribunal about whether the principles in section 109 of the Victorian Civil and Administrative Tribunal Act 1998, which sets out principles about costs orders in this Tribunal, apply to a costs order made under section 74(2)(b). In my view the better approach is that section 109 does not directly apply but that the principles in section 109 are relevant to any decision under section 74(2)(b). What section 109 says is that each party bears their own costs in the proceeding. That is the usual position in an application for costs at VCAT. However, there is a particular reason for making costs orders when somebody withdraws an application. If an Applicant withdraws after a Respondent has incurred costs, the Respondent has no opportunity to say to the Tribunal, "Well I was right all along and it's not fair that I should have to had to spend a whole of lot of money on defending myself". When a claim is determined by the Tribunal, the Respondent has an opportunity to say that and then section 109 comes in to play and the Tribunal takes in to account the factors set out in that section.

Such an exercise could result in the Tribunal deciding that even a successful Respondent bear its own costs or recover only some part of its costs. However, if the Applicant withdraws they may have put a Respondent to a whole lot of expense without ever giving the Respondent the opportunity to have the rights and wrongs of that expense decided upon.

That can be a vexatious thing to do in my view. Sometimes it is unavoidable, but the unfairness of putting a Respondent to the expense of defending an action which is then withdrawn is something that has to be taken into account. Otherwise, applicants could make spurious applications in the Tribunal, putting people to all sorts of expenses and then turn around half way through and withdraw, having caused the other person needless expense. Now I know Ms Juresko will find what I am saying here difficult to accept, because Ms Juresko has a strong sense of injustice about what happened in relation to the sale of her property during the year 2000. That is what has motivated her to bring the action that she has brought. Ms Juresko originally brought her action against the purchaser who did not go ahead with the contract. Only when she was unable to find him did she then decide to join the solicitor who was acting for her at the time, Mr Senia, saying effectively that he did a bad job and that is why Ms Juresko suffered loss. Ms Juresko did not put this in points of claim but that was the basis on which she joined him, according to her letters on the file, and according to what she said at the hearing on 21 March that she would be making her claim.

So what do we do with all of that? As I have said, section 74(2)(b) applies, the principles in section 109 are relevant and I have a discretion about whether or not to make an order for costs or part of costs.

On 21 March, Mr Senia asked the Tribunal to strike out Mr Juresko's claim against him and that application was not successful. Instead, Mr Juresko was directed to file particulars of her claim against Mr Senia. Ms Juresko did not receive a written copy of the Tribunal's orders until the day on or the day after those particulars of claim were due, which was 4 April. However, on 30 March she wrote a letter to the Tribunal withdrawing her claim. That letter is on the file. Around that time, Ms Juresko saw a solicitor about her claim, as she has said today. A solicitor would know that the fact Ms Juresko did not have a written copy of the orders and that she might therefore be filing the particulars late, did not compel her to withdraw. Although today Ms Juresko has made much of the fact that she received her copy of the orders late, that is not an acceptable reason or explanation for withdrawing the claim. It does not excuse the withdrawal of the claim in circumstances where the other party has been put to some expense. The solicitor who Ms Juresko consulted, any solicitor, would know that if Ms Juresko wished to pursue her claim at that point all she had to do was ask for an extension of time. There might have been some trouble about that, but it would not have been a reason for the Tribunal to strike out her claim. I conclude that Ms Juresko was not forced by the late arrival of the written copy of the orders into withdrawing her claim. However, she did withdraw her claim and as I have said in my view, the Respondent is entitled to at least some of its costs because the Respondent was put to needless expense.

"Costs" means legal costs. It does not mean personal costs and it certainly does not mean costs for stress although I do not doubt this has been a frustrating exercise for Mr Senia. On 21 March, the Tribunal did not order that Ms Juresko pay Mr Senia's costs of the strike out application, because he was on that day unsuccessful. However, the Applicant has now withdrawn altogether, which means that the time and money that Mr Senia spent on that strike out application has been completely wasted. Ms Juresko could have withdrawn before the strike out application and hearing and then the Respondent would not have had to spend that money. Therefore, that was a needless expense and in my view, the Respondent is entitled to some costs of that day.

However, the Respondent is not in my view entitled to everything that he claims. The Respondent has made a claim on Scale D and there is no evidence that all that money has been spent. Mr Senia has based the amount that he has claimed, which is $13,206.00, on a bill prepared as if his firm had been acting for somebody. Now as we know Mr Senia was acting for himself. In the courts, a solicitor acting for himself is often entitled to costs as if he had employed a solicitor, but that principle does not in my view overturn the Tribunal's wide discretion. There was no evidence that he has paid himself money into his firm. Mr Senia has provided an invoice showing that he paid $825 to the barrister who appeared on 21 March, but putting that aside for the moment, it is important to note that merely because the Respondent is a solicitor, that does not entitle the Respondent to compensation for every minute of time spent on the case.

A second factor I take into account is that because the Respondent is a solicitor the Respondent is capable of forming a view about whether or not this is tenable claim and how strong a claim it is. Mr Senia has maintained from the outset that this was not a tenable claim. It was not very well developed or articulated. In my view, a prudent person with that understanding would not have a spent a lot of money on legal expenses at that point. Therefore, Mr Senia ought not to be allowed to claim a lot of money simply because he happened to be a solicitor and could spend as much as he liked on his own defence. In other words the Applicant should not have pay extra compensation for costs because the Respondent happened to be a solicitor. The question is rather what it was reasonable for the Respondent to spend as a prudent businessman incurring legal fees to defend an action against himself. 7. A further factor that I am taking into account is that the Respondent is an unrepresented litigant. Ms Juresko in my view has displayed an unrealistic expectation of what the Tribunal can do and little understanding of the principles at work. Ms Juresko also has a strong sense of injustice and it was that sense of injustice about what happened in relation to the sale of her property which prompted her to bring this claim. Whether or not that sense of injustice is justified is not something that I can decide about because the claim has not been heard.

Another relevant factor is that Ms Juresko had already settled the matter, at least in part, with the real estate agent who she also then named as a Respondent, without informing the Tribunal of that previous claim. That certainly lead to extra angst and expense at the strike out hearing on 21 March, but that issue has already been dealt with by the costs order that Ms Juresko pay the costs of the real estate agent who was joined and against whom the application was struck out. Ms Juresko had not previously brought any application against Mr Senia.

Another thing I must take into account, on the same theme as Ms Juresko's status as an unrepresented litigant, is that this is an application in the Civil Claims List. When a person makes a small claim up to $10,000.00 under the Fair Trading Act 1999, no costs are awarded at all. I am prohibited from ordering costs in such a claim. (See Victorian Civil and Administrative Tribunal Act 1998, Schedule One, Clause 28GG). The claim in this case is for a larger amount however. Further, it is unusual to make a costs order against an unrepresented litigant in the Civil Claims list, particularly against an unrepresented litigant with unrealistic expectations. It does happen from time to time, but the mere fact that an applicant in this List makes a claim which appears to be somewhat unrealistic does not justify the Respondent in spending big to fight that claim. That would be using a rock to squash an ant. Therefore, I will not make an order that allows for everything the Respondent might be able to claim on Scale D if this had been a claim brought in the County Court with solicitors on both sides. However, as I have said, costs following a withdrawal are different from ordinary costs orders. Withdrawal has put the Respondent to expense without the Respondent having any opportunity to prove that he was in the right and thus have some expectation of recovering at least a part of his costs.

Each party should bear its own costs of the cancelled hearing on 29 March. That was unfortunate and it was unavoidable and the late notice can be the subject of a complaint to the Tribunal if either party wishes, but it is not a matter for costs of one party against another. In any case, I am not satisfied that the Respondent's extra expenditure claimed for that day has been proved.

As to the amount I am going to allow, as I have said, I will identify a part of the Respondent's actual costs which represents what a reasonably prudent person might spend in all these circumstances.

Looking at the claim made, the Respondent says he read it as a claim for $125,000.00 because of the high level of interest claimed. I do not think it was reasonable really to read the application form completed by the Applicant as if it claimed that amount. In the relevant box on the form was "$11,000.00 plus interest". I note that the wording nearby on the form refers to the interest on $148,000.00 but I did not read it as a claim for such a large amount. There is no interest period mentioned. I do not accept that a reasonable person could consider on seeing the application and accompanying documents that this was a claim for $125,000.00.

It was more reasonable in my view to see this as a claim for $11,400.00 plus an unspecified amount of interest and on that basis, I certainly would not allow costs on Scale D.

I note that everything that has been claimed after 4 April by the Respondent concerns the costs hearing. I have heard Mr Senia's submissions today. Those were not complex submissions. They addressed little of the relevant law. I do not say that was necessary, but rather that this was not necessarily an expensive legal exercise. Therefore, I will not allow any of the costs claimed after 4 April, except for Mr Senia's costs today as if he were a person representing himself, that is as a witness. I note that is not in accordance with any applicable scale of the courts, but the Tribunal has the discretion to order all or part of the Respondent's costs and here only a small part is justifiable. The amount that was claimed was travel to Melbourne of $334.00 plus the attendance of the hearing of $1,229.00. I do not allow anything like that for today. I allow $500.00, which is close to the maximum allowable witness costs for a day in the County Court (see Appendix A to the County Court Rules 1999). There is a claim for costs at attendance of the hearing on 21 March of quite a large amount of money. The claim for $825.00 paid to the barrister is for funds expended reasonably and should now be allowed for the reasons I have given. I will also allow $500.00 for Mr Senia's attendance on that day, again as it represents the costs to which he would be entitled as a witness.

The other amounts claimed by the Respondent are arguably amounts which a prudent person may have spent on this matter. However in all of the circumstances and taking into account that even if the claim had been fully tried the usual starting point is that each party bears its own costs, that Ms Juresko is an unrepresented litigant in the civil claims list and the documents do not reveal any sophistication or developed approach in this claim so that it would have been clear to a prudent Respondent that the claim was a long way off being a real threat , I do not accept that it was appropriate for those amounts to be spent on solicitors costs which are claimed. Therefore, I do not allow any of those other costs. The total order in costs against Ms Juresko is $1,825.00.

1. Pursuant to s.74(2)(b) of the Victorian Civil and Administrative Tribunal Act 1998 the Tribunal orders that Marijana Juresko pay to Senia and Associates the sum of $1,825.00 forthwith.

2. The principal registrar is directed to provide to Senia and Associates a certified copy of this order.