(b) Further as to such paragraph I substitute for the words "on an indemnity basis" the following words "in respect of any costs, expenses, loss, inconvenience and embarrassment resulting from the proceeding".

2. Further as to my said Orders and as regards such paragraph;

(a) I clarify (as if appearing there) that by "taxable form" I mean in a written form adequately identifying each claimed item and setting out alongside that item an entitlement claimed which is or is able to be converted into a monetary amount;

(b) I clarify that, having heard argument, the costs orders made by Senior Member Walker on 13 September 2001, are to be included in the expression "any costs, expenses" or in the expression "any .... loss" as resulting from the proceeding for the purposes of paragraph 5 of my Orders made as stated and as amended by paragraph 1 (b) of these Orders.

3. The taxation scheduled for 9:30am on 29 January 2002 is cancelled. I direct the Principal Registrar to notify the parties of a further date and time for the assessment which is to be fixed by him or on his behalf.

4. Pursuant to sec. 75(2) of the VCAT Act, I order that the Respondents' costs of this day be paid by the Applicants.

5. I refer the Assessment of the Costs mentioned in paragraph 4 of these Orders to the Principal Registrar pursuant to sec. 111 of the Act. By 28 February 2002, the Respondents must file and serve a document (which may be in the form of a letter) setting out in the taxable form referred to. By 14 March 2002, the Applicants must file and serve a document (which may be in the form of a letter) setting out any objections they may have. Thereafter, the Principal Registrar shall carry out the assessment and I direct that he carry out such assessment at the same time as he carries out the assessment referred to in paragraph 3.

1. I am asked to act under s119 of the VCAT Act 1998, in effect, to amend and clarify orders I made in this matter on 28 October 2001. To any extent necessary, also called in aid, in my view, is s53(1) of the Domestic Building Contracts Act 1995.

2. In particular, I am directed to paragraph 5 of my orders. An issue raised for my consideration is whether I may order indemnity costs and then provide that they are to be assessed according to a scale - in this case, the County Court Scale. Another issue, is the meaning of the words "taxable form" which I used.

3. I have reviewed my Reasons for Decision given in this matter. I am satisfied that I did intend to order costs on, as it were, an indemnity basis. I refer especially to paragraphs 8, 9, 10 and 11 of my Reasons. Having the views I there formed, I was satisfied - and I am still satisfied I should add - that the provisions of s75(2) of the VCAT Act 1998 were attracted. That being so it is not strictly correct, in my view, even to refer to "indemnity costs". Those provisions enable compensation to be ordered for any loss, costs or expenses extending even to embarrassment. The range provided for by s75(2) is much wider, in my view, that that provided for by s109 of the Act. I make it clear, though, that s109 does allow the ordering of indemnity costs. But in my view s75(2), where it applies, is an independent costs provision not qualified by s109. If its terms are met, an order for compensation, for losses and costs etc, may be made. Strictly, this is not a costs provision as such. It is a provision for compensation.

4. Viewing s75(2) in this way, I cannot see how I can have ordered costs to be paid on an indemnity basis, in the first place, and then on an indemnity basis according to scale, in the second place. The orders I have made on 28 October 2001, in paragraph 5, are, therefore, in error in those respects. In terms of s119 those orders in that paragraph contain an "error arising from accidental slip or omission" (s119(1)(b)) or contain "a material mistake in the description of any...thing or matter referred to [therein]" (s119(1)(c)). To correct the error, as well, I consider I can rely upon s53(1) of the 1995 Act to make any order that is fair to resolve a domestic building dispute. But I do not think it is, in fact, necessary for me to rely upon that provision. I should add that at the conclusion of the hearing in 2001, when I announced my orders, I did so in the presence of both Counsel neither of whom expressed any dissent from what I was saying.

5. I have decided therefore to amend paragraph 5 of my orders both to omit reference to indemnity costs and to omit reference to assessment according to scale. It is sufficient if, in light of my reasons, that I order compensation to be paid under s75(2). It will then be for the Principal Registrar to carry out his assessment and I continue, in that regard, the reference for assessment under s111 of the 1998 Act. In carrying out his assessment I expect he will observe underlying principles of reasonableness. The purpose of s75(2) is to provide for compensation. It does not extend to allowing exorbitancies. It is not intended to be cost extravagant. I empower him to refer back to me any issue needing a ruling.

6. To clarify matters (and, if need be, I act under s119(1)(a) or s119(17)(b) (in its reference to "an error arising from...omission") or s119(1)(d)) I indicate that by "taxable form" in my orders made on 28 October 2001 I did mean to indicate, in a form which identifies each item claimed and places alongside or near that item (so that one associates the one with the other) an entitlement which is already in a monetary amount or which may readily be converted into a monetary amount.

7. A further matter, in that regard, which is raised for my consideration concerns costs orders made by Senior Member Walker on 13 September 2001. The Senior Member ordered the Respondent to pay costs of the Applicant. Yet, given my decision on 28 October 2001, the question is whether there can possibly be any basis in hindsight, for that ruling. I am satisfied, in fact, that that ruling lacks a tenable basis in law. But what I am asked to do is order compensation under s75(2) in respect of the occasion of that ruling. The alternative is that the Respondent would intend to ask the Senior Member to set aside his orders. Yet the Senior Member may be precluded from setting aside those orders even though, in justice, and again in hindsight only, the should not stand. I have given this matter due consideration and, having done so, I am of the view that the costs ruling of the Senior Member is something resulting from the proceeding and also represents "costs expenses [or] loss" within the meaning of s75(2). As it happens this is a pragmatic solution also. I determine, therefore, that the orders in question are within the ambit of s75(2). I determine that this is so, even though, so I am told, the costs under those orders have not been paid. I cannot see that s75(2) is limited to actual, as opposed to definite but not yet actual, costs, expenses or losses. But the situation would be clearer, I would agree, if the costs under the orders had been paid. Also there is something of a disregard of Tribunal orders, (though they should not be standing) which appears to be involved in not paying them. The situation, however, I admit, also, is a peculiar one.

8. Lastly, I am asked to make an order for costs in respect of this hearing in this matter. Following a question from me, I am told that this application for costs is also sourced in s75(2). I agree that this is correct.

9. I should wish to make a few further observations about s75(2). It is apparent to me that it has an operation hitherto unexplored. But it is clear to me that it enables compensation orders to be made when a proceeding has been struck out even without that proceeding having been reinstated. This follows from the opening words to the provision - "If the Tribunal makes an order under sub-section (1)...". And under sub-section (1), of course, dismissal or striking out orders may be made. There is nothing that says that, under s75(2), the Tribunal can only act, in the case of a strike out order, if the proceeding is reinstated. If this were the rule, it would, in any event, place in the hands of unsuccessful Applicants a capacity to prevent successful Respondents from proceeding under s75(2) for compensation. Further, it is also apparent to me, as I have indicated, that s75(2) is a different provision to s109. In contrast to s109, it does not contain a provision stating that parties must bear their own costs unless the Tribunal otherwise orders. Nothing in s75(2) is at all similar to s109(1). There is thus no justification for starting from a premise that under s75 itself each party should bear their own costs.

10. Bearing these matters in mind, I am of the view that I can proceed to order the costs of this hearing in the matter, even though the struck out proceedings have not been reinstated. More particularly, I am able to proceed to order costs even though the proceedings have been struck out, for this is when s75(2) applies. Moreover, I am of the view that the circumstance of the Respondent having to come back to the Tribunal - to attend to the orders I made - is something "resulting from the proceeding" and is a cost, expense or loss item. In that regard, I should indicate a view that after 28 October 2001 I was not functus officio: although it was not argued that I was, my reference for the assessment of costs was ongoing and in any event, there was also my reference which was ongoing to Senior Member Walker on the question of his orders for costs.

11. Although I am clearly not obliged to order compensation under s75(2), I am of the view that costs should follow the event, as it were, in the operation of that provision subject always to the Tribunal's discretion. I acknowledge that this has been a dreadful episode for the Applicants - they may need to look elsewhere in that regard for I fear that they have been badly advised or represented. I acknowledge also, that if I order in favour of the Respondent on this question of costs, then this will be yet another burden to be borne by the Applicants. But I consider; at the same time, that it would be unfair if I were to deny the Respondents the costs of this hearing. The Respondents, otherwise, will also be out of pocket. It might be said that the Respondents, at the hearing in 2001, should have been aware of the imperfections in the costs orders made on that occasion. But the reply to that surely is this: that so, too, however, should the Applicant who was also represented by Counsel. But, as I recall, he said little that was material on this point.