The respondent is to pay the applicant for enforcement a total of $1425 for costs in respect of the mediation conducted on the 16 January 2008.

Such costs must be paid in full within 30 days of the date of this order.

The proceeding is to be heard on a date to be fixed after the 15 May 2008.

Costs in respect of the practice day appearance are reserved.

1. This proceeding was listed for mediation on the 16 January 2008.
2. At the listed time for the mediation there was no appearance on behalf of either the respondent or the other party.
3. In my original reasons dated 21 April 2008 I set out the following :

Mr Townsend, Barrister, appearing on behalf of the applicant informed the mediator that he had been advised that morning the respondent was not going to attend the mediation.

Section 109 of the VCAT Act[1] entitles the Tribunal to award costs in certain circumstances. While rarely used, it is generally held that, where the conduct of a party unreasonably causes another party to incur unnecessary costs, then the offending party should be held liable. The test is one of "unreasonable" conduct.

Section 109 (3) (a) provides for costs to be awarded, if the Tribunal is satisfied it is fair to do so, where a party has conducted the proceeding in a way that unnecessarily disadvantaged another party. Section 109(3) (a) (i) includes failing to comply with an order or direction of the Tribunal without reasonable excuse.

Section 78 (1)(g) specifically lists failing to attend a mediation as conduct of proceeding causing disadvantage.

1. Solicitors acting for Califarm Pty Ltd, in a letter dated 29 April 2008, correctly drew to the Tribunals attention its client was not a respondent to the enforcement action undertaken by the applicant. As such it is inappropriate in those circumstances to award costs against them in this instance.
2. I am satisfied that it is fair in this proceeding that the cost of Mr Townsend appearing at the mediation for the applicant should be met wholly by the respondent, Upmark P/L.
3. I am satisfied that this correction falls within the scope of section 119 1(c) and that it is appropriate to make the correction.

[1] Victorian Civil and Administrative Act 1998.