Mr S Butler, Town Planner, represented the Responsible Authority.

Mr J Ostroff, Town Planner, represented the Respondent/Permit Applicant.

Mr D Gunson, Solicitor of Mulcahy Mendelson & Round, appeared on behalf of the Applicant for Review.

1. On 26 April 1999 the Respondent lodged a permit application with the Responsible Authority. The present applicant for review, Mr V Lai, was one of several objectors to the application.

2. On 7 July 1999 the Responsible Authority determined to grant a permit subject to conditions.

3. On 28 July 1999 Mr Lai sought a review of the Responsible Authority's decision.

4. On 13 August 1999 the Registrar notified all parties that a hearing would take place on 6 September 1999 commencing at 10.00 am.

5. On 3 September 1999 Mulcahy Mendelson & Round, acting on behalf of the Applicant for Review, forwarded a facsimile to the Registrar which, omitting formal parts, read as follows:-

"We refer to our telephone discussions with Paul and Jodie of your registry on even date.

We confirm that we act on behalf of the Applicant Vincent Lai in respect of the abovementioned matter.

We also confirm that our client instructed us to withdraw the abovementioned appeal.

We have duly notified the Respondent, Lawrence Li and the responsible authority, Manningham City Council of the withdrawal of our client's appeal and have advised them that they are no longer required to attend the said hearing.

Should you wish to discuss any of the abovementioned matters, please do not hesitate to contact the writer."

6. The facsimile was received by the Tribunal at 3.20 pm. Mulcahy Mendelson & Round were advised that they should attend the Tribunal hearing on 6 September 1999 and seek leave to withdraw the application.

7. On 6 September 1999 at 10.00 am, Mr Butler and Mr Ostroff were in attendance. Mr Gunson, who represented the Applicant for Review, arrived at 10.35 am.

8. It was submitted by Mr Ostroff that the Respondent had been forced to incur unnecessary costs to protect his interest in the matter. Mr Ostroff tabled:-

(a) the submission he had prepared on behalf of the Respondent;

(b) a copy of a report prepared by Greg Tucker & Associates, Traffic Engineers and Consultants.

The report, Mr Ostroff stated, had been specifically prepared for the hearing. Although Tucker & Associates had prepared a submission in support of the application to the Responsible Authority, this report had been re-written for the Tribunal hearing, and included revised data and new information.

10. Mr Gunson opposed the application on the following basis:-

(a) The application for review was neither frivolous nor vexatious and had a reasonable chance of success. It had been abandoned only because of economic reasons.

(b) Mulcahy Mendelson & Round had not been notified that the Respondent had engaged professional assistance.

(c) The dispute lay between Mr Lai and the Responsible Authority, the Respondent did not have a position to defend and hence professional assistance was unnecessary.

(d) The costs of Greg Tucker & Associates were due, at least in part, to the initial material placed before the Council.

11. It has long been held that, if the actions of one party to a proceeding results in another party incurring unnecessary expense, an award of costs may well be justified. The withdrawal of an appeal within seven (7) days of the date of hearing has, on a number of occasions, attracted close scrutiny by the Tribunal.

12. In this instance notification of the Applicant's desire to withdraw from the proceedings was given at 3.20 pm on the last working day prior to the hearing. This evidences a total disregard for the convenience of other parties to the proceeding.

13. As to Mr Gunson's contentions, the Tribunal comments as follows:-

(a) The question now before the Tribunal is not whether the application for review had a reasonable chance of success but whether its last minute withdrawal amounted to unreasonable conduct.

(b) It was not incumbent on the Respondent to notify Mulcahy Mendelson & Round that professional advice had been retained. It was, however, eminently foreseeable that Mr Lai would do so in the circumstances.

(c) The Respondent had every entitlement to defend a favourable Notice of Decision as is customary in these matters.

(d) The Tribunal accepts that the costs sought in respect of traffic evidence were additional costs occasioned by the fact that an application for review had been lodged.

(e) In the Tribunal's experience, the sums sought by Mr Ostroff are reasonable and fall well within the ambit of what could be expected for the retention of competent professional experts.

(a) Leave to withdraw the application for review is granted.

(b) Pursuant to Section 109 of the Victorian Civil and Administrative Tribunal Act 1998, the Applicant for Review shall pay to the Respondent (Permit Applicant) the sum of $2,500.00 within 14 days of the date hereof, such sum being the costs throw away due to the late notice of the Applicant's intention to withdraw from the proceedings.