1. Each party shall bear their own costs of this proceeding insofar as it relates to the Applicant's application - no orders are made in relation to the Counterclaim.

1. The Applicant has made an application for costs of the proceeding insofar as it relates to the application which was determined on 30 June 2004. It was submitted on behalf of the Respondent that the question of costs should not be determined until its counterclaim has been heard and determined. As indicated at the hearing, this submission is rejected. Orders having previously been made that the proceeding be split so that the application and the counterclaim be determined separately, and the application having now been determined it is convenient and appropriate that the determination of the proceeding insofar as it relates to the application be finalised and that includes determining the question of costs.

2. In determining whether I should make an order for costs I must have regard to the provisions of s109 of the Victorian Civil and Administrative Tribunal Act 1998. Section 109(1) provides that each party shall bear their own costs of the proceeding. However, the Tribunal does have a discretion to order costs if it is satisfied it is fair to do so having regard to the provisions of s109(3)(a) to (e) which provide:

(a) whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding by conduct such as--

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(v) attempting to deceive another party or the Tribunal;

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

(e) any other matter the Tribunal considers relevant.

3. It was submitted on behalf of the Applicant that this is an appropriate case for the exercise of this discretion where the Respondent has clearly conducted the proceeding in such a way as to disadvantage the Applicant. I accept that the Respondent's conduct of the proceeding has been less than satisfactory and, no doubt, this is one of the matters which Senior Member Cremean took into account when he ordered that the application and the counterclaim be heard and determined separately. However, it is equally apparent that the Tribunal has taken the Respondent's conduct of the proceeding into account in making various costs orders throughout the proceeding. Where a party has already had the benefit of costs orders because of another party's conduct of a proceeding it would be inappropriate for those matters to be taken into account when determining whether costs should otherwise be ordered.

4. The submission on behalf of the Applicant that costs should follow the event because this is essentially a commercial dispute which could have conveniently been determined in the Magistrates Court (where proceedings were initially commenced) is rejected. Many of the proceedings in the Domestic Building List are of a commercial nature, and, in my view, that is not a reason to depart from the general provisions of s109. If that had been Parliament's intention it would not have enacted s57 of the Domestic Building Contracts Act 1995.

5. Further, it seems that the Applicant has not always adopted a reasonable approach in its conduct of this proceeding. On the first day of the hearing I enquired whether the parties were interested in having any further settlement negotiations. Although Mr Stuckey indicated a preparedness by the Respondent to engage in further discussions, this opportunity was rejected by Mr Lapirow on behalf of the Applicant, who advised that given the passage of time, the Applicant just wanted to have the case heard and determined. By the morning of the third day, the parties had reached agreement on a number of the invoices, with claims totalling $4,147.00 having been abandoned by the Applicant. Of the initial claim of $21,459.22, $2,345.29 remained in dispute, and the Respondent's were ordered to pay the sum of $14,525.55 - nearly $7,000.00 less than the original claim.

6. Obviously I am not privy to the discussions between the parties, and nor should I be. However, it would seem that for some inexplicable reason notwithstanding the late service of the Respondent's witness statements, that the Applicant was unable to accept the Respondent's position until it had heard the sworn evidence of all parties. I accept that the relevant invoices, which formed the basis of Mr Dempsey's evidence had been discovered in good time. Further, Mr Dempsey's evidence related to works, for which payment was claimed by the Applicant, that simply do not exist.

7. As noted in my Reasons for Decision, most of the evidence on behalf of both parties was given by persons who did not have any first hand knowledge of the matters in dispute. The Applicant was dependent on the evidence of the Respondent's witnesses to assist in determining which of its claims it should pursue.

8. I am not persuaded there is any reason to depart from the provisions of s109(1) and will therefore order that the parties pay their own costs of this proceeding. The Applicant has clearly had the benefit of the Tribunal's exercise of its discretion during the interlocutory stages when it was satisfied that the Applicant was disadvantaged by the Respondent's conduct and, as noted above, they are not matters which should properly be taken into account in determining this application.

9. Mr Lapirow has also submitted that I should make an order for damages by way of interest and referred me to s58 of the Supreme Court Act 1986. I am not persuaded that s58 imposes any obligation on the Tribunal as submitted by Mr Lapirow. Further, I note that s53(2)(b)(ii) of the Domestic Building Contracts Act 1995 allows for an order for the payment of damages in the nature of interest, but is not prescriptive. I am not satisfied on the evidence before me that it would be fair, or appropriate for me to make such an order and decline to do so.