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The applicant’s submissions

5. Molonglo submitted that the proceedings in the Tribunal concerned the correct and preferable LVC payable on the variation of the lease for the Molonglo land.

6. On 7 March 2024, the Commissioner for ACT Revenue (the Commissioner) assessed the LVC at $36,993,750, based on a valuation by the ACT Valuation Office (ACTVO).

7. Molonglo sought a review of that assessment, and provided a valuation from an independent valuer, but the Commissioner confirmed the original assessment.

8. Molonglo then commenced these merit review proceedings in the Tribunal.

9. During the Tribunal proceedings the Commissioner contended that the LVC should be greater than its original assessment and submitted it should be $101,550,000.

10. Molonglo served a number of expert reports and lay evidence. The Commissioner served a number of expert reports in reply.

11. The hearing in the Tribunal took place over 16 days including a view.

12. On 22 August 2025, the Tribunal set aside the Commissioner’s assessment of the LVC and determined that the LVC should be $26,480,938.

13. Molonglo seeks an order that it be reimbursed for its disbursements (Order 1) and its professional legal costs (Order 2) incurred by it in the proceedings. The disbursements claimed, and their amounts, are set out in column 2 of the table below (the Table). I shall come to the other columns later in these reasons.

Category Column 2 Column 3 Column 4 Filing $827.00 $827.00 $827.00 Hearing $10,278.00 $6,586.00 $6,586.00 Expert evidence $365,943.95 $165,937.70 $0 Transcripts $15,430.46 $10,687.61 $0 Subpoenas $7,552.10 $409.00 $409.00 Other disbursements (ASIC and $1,419.17 $1,419.17 $1,419.17 property searches) Total $401,450.68 $185,866.48 $9,241.17

14. In relation to the disbursements, Molonglo relies on section 48(2)(a) of the ACT Civil and Administrative Tribunal Act 2008 (the ACAT Act). Section 48 says: 48 Costs of proceedings (1) The parties to an application must bear their own costs unless this Act or another territory law otherwise provides or the tribunal otherwise orders. (2) However— (a) if the tribunal decides an application in favour of the applicant, the tribunal may order the other party to pay the applicant–– (i) the filing fee for the application; and (ii) any other fee incurred by the applicant that the tribunal considers necessary for the application; or Examples––subpar (ii) • a fee for a business name or company search • a filing fee for a subpoena • hearing fees (b) if the tribunal considers that a party to an application caused unreasonable delay or obstruction before or while the tribunal was dealing with the application—the tribunal may order the party to pay the reasonable costs of the other party arising from the delay or obstruction; or (c) subject to section 49, if a party to the application contravenes an order of the tribunal—the tribunal may order the party to pay the costs or part of the costs of the application to the other party; or (d) if the application is an application for review of a decision under the Heritage Act 2004, the Planning Act 2023 or the Urban Forest Act 2023, and the tribunal makes an order under section 32 (2) (Dismissing or striking out applications)—the tribunal may order the applicant to pay the reasonable costs of the other party arising from the application. Note A legal expense relating to a proceeding in the tribunal may be recoverable as a debt under the Unit Titles (Management) Act 2011, s 31.

15. Molonglo submits that, in substance, the application was decided in its favour as the LVC determined in Molonglo (No 1) was some $10 million less than the Commissioner’s original assessment, and some $75,000,000 less than the amount sought by the Commissioner in the Tribunal proceedings. I agree that the application was, in substance, decided in Molonglo’s favour and I do not read the Commissioner’s submissions as submitting to the contrary.

16. Molonglo relies on the decision in JADK Builders Pty Ltd ACN 602 692 080 v Kumar & Anor [2024] ACAT 88 (JADK) in which I held that the words “any other fee” in section 48(2)(a)(ii) included any disbursement (as lawyers would understand that term) or expense (to use a neutral expression) which was incurred in order for an applicant to prosecute his, her or its case.

17. Molonglo then submitted that the disbursements claimed were all “necessary for the application” as required by section 48(2)(a)(ii).

18. Molonglo referred to a dictionary definition of “necessary” in which it was said to mean “that cannot be dispensed with: a necessary law”. Molonglo submitted that (footnotes omitted): It has been observed that “necessary” is a “strong word.” However, its precise meaning depends on the context in which it is used. Something may be “necessary” provided that it is reasonably appropriate and adapted to achieve a particular statutory purpose. Accordingly, “necessary” does not necessarily mean “absolutely necessary or indispensable.” It can mean “reasonably required” or reasonably appropriate to the circumstances of the case. The statutory context may mean that it is to be understood by reference to “reasonableness, common sense and appropriateness to the accomplishment of the particular statutory purpose.”

19. Molonglo referred to the interpretation of the word “necessary” in other contexts, referred to sections 6 and 7 of the ACAT Act, and submitted that having regard to the those matters the Tribunal should find that a fee incurred by Molonglo was “necessary” for the application if the Tribunal considered that the fee was essential for the fair and appropriate conduct and presentation of the application having regard to the importance and complexity of the proceedings.

20. Molonglo submitted that the disbursements were necessary because they were essential to the fair and appropriate conduct of the application and were essential to assisting the Tribunal to arrive at the correct and preferable decision.

21. Molonglo submitted that its expert valuation, town planning, quantity surveying and engineering evidence was necessary to obtain because it was essential to the complex factual and legal issues in dispute.

22. Molonglo submitted that some of its experts’ reports were prepared in response to the Tribunal’s orders of 16 May 2025 and were necessary for Molonglo to comply with its duty to comply with the Tribunal’s directions.

23. Molonglo submitted that it needed to retain two expert valuers because of the complex and difficult valuation issues, the significant amount of the LVC in issue, the difficulty in interpreting the relevant statutory provisions and that the Commissioner proposed to obtain new valuation evidence from a different valuer.

24. Molonglo submitted that the Tribunal should exercise the costs discretion in its favour given the importance and complexity of the proceedings, that most critical facts were contested and because of the detailed nature of the expert evidence.

25. In relation to Order 2, Molonglo accepted that the Tribunal has no power to order one party to pay the professional costs of another: see CIC Australia Ltd v ACT Planning and Land Authority, Mainore Pty Ltd and ACT Civil and Administrative Tribunal [2013] ACTSC 96 (CIC) and Jolley v Construction Occupations Registrar (No 2) [2025] ACTSC 347 (Jolley).

26. However, Molonglo submits that I should nevertheless indicate whether I would have exercised my discretion under section 48(1) in Molonglo’s favour and how I would have exercised it, assuming CIC and Jolley were wrongly decided. Molonglo submitted that it would be consistent with the quick and inexpensive resolution of this costs application because if CIC or Jolley or both were overturned on appeal (or held by the Court of Appeal to have been wrongly decided), it would enable the appeal court in this matter to finally determine the 1 matter in an expeditious way.

The respondent’s submissions

27. The Commissioner submitted that the holding in JADK as to the meaning of “any other fee” in section 48(2)(a)(ii) was wrong, that I was not bound by that holding, and that I should hold that the word “fee” is confined to things which are “statutory charges” or “statutory fees”. If that submission were accepted, the parties agreed that the amounts in Column 4 of the Table would be payable.

28. The Commissioner submitted that section 48(2)(a)(i) uses the word “fee” in the sense of a statutory charge because it refers to a fee determined and payable under sections 13 and 14 of the Court Procedures Act 2004 (the CPA), being a statutory charge for the provision by government of a service or function per sections 55- 58 of the Legislation Act 2001 (the LA).

29. That submission glosses over several important matters.

30. First, section 12 of the CPA defines ‘fee’ as including a charge and a tax. It is an inclusive and not exclusive definition. That is, it mentions two things which are

1 An appeal from Molonglo (No 1) has been lodged by the Commissioner included in the meaning of the word ‘fee’ but does not exclude other things which may be held to be fees.

31. Second, the word ‘fee’ is defined differently in the LA. In section 55 the LA says that ‘fee’ includes a charge or other amount. Again, that definition is inclusive and not exclusive, and is arguably wider in scope because, in addition to a charge, it refers to “other amount” rather than a “tax”.

32. Third, neither the CPA nor the LA defines the word “charge”.

33. Fourth, an examination of the disallowable instrument referred to in section 13(4) of the CPA reveals the various fees which had been determined. They are things like filing fees for various applications, hearing fees, and fees for issuing subpoenas. Not included in the disallowable instrument is any fee for ASIC or property searches. Yet, the Commissioner accepts that ASIC or property searches are within the meaning of “any other fee” as the Commissioner interprets that phrase.

34. That is not a criticism of the Commissioner’s submissions. Rather it is another example of the multitude of difficulties with this section which was charitably described by Justice Penfold in CIC as “problematic”.

35. No submissions or references to legislation were provided by the Commissioner as to why ASIC and property search fees were “statutory charges”.

36. Fifth, if parliament had intended section 48 to be confined to statutory charges or statutory fees, it could easily have inserted the word “statutory” before the word “fee” in sub-section (2)(a)(ii) to make the position clear. But it did not do so.

37. Sixth, the Commissioner’s submissions do not address the reasoning in JADK in relation to the word “fee” used in other related areas of the law, nor the extrinsic material such as the full Presentation Speech.

38. The Commissioner submitted that the use of the singular rather than plural “fee” in sub-section (2)(a)(ii) has some significance. The Commissioner says this points toward an interpretation intended to cover for the payment of limited, individual charges rather than the accumulation of charges for the performance of, potentially, significant work undertaken over a period of time. I do not see the distinction sought to be made by this submission because in this case the Commissioner accepts that various fees which were payable over a period of time (such as hearing fees) are payable.

39. The Commissioner next submitted that the examples provided in section 48 are all statutory charges, and if parliament had intended non-statutory charges to be included within the word “fee” it could have done so by referring to examples of non-statutory charges. There is some limited force to that submission, but section 132 of the LA says that examples are not exhaustive and may extend, but do not limit, the meaning of an Act or instrument, or the particular provision to which it relates. To accept the Commissioner’s submission would be to limit the meaning of the section by reason of the examples, something prohibited by section 132.

40. The Commissioner submitted that the apparent intention of section 48, particularly when read in the context of section 49 and the ACAT Act as a whole, was to restrict the award of costs in the Tribunal. It was limited, the submission went, to permitting an applicant who had obtained a favourable decision to seek recompense for a narrow class of expenses as a limited exception to the default position in the Tribunal that parties must bear their own costs. I accept those submissions, but the interpretation given to section 48 in JADK meets that test, and therefore the submission does not advance matters in this costs application.

41. The Commissioner then submitted that ‘costs’ generally includes both professional fees and disbursements, and the default position set out in section 48(1) is that parties should ordinarily bear their own costs. That position, the Commissioner submitted, would be undermined if ‘fee’ in sub-section (2) included disbursements.

42. I do not agree. Sub-section (2) is clearly expressed as an exception to the default position in sub-section (1).

43. The Commissioner then submitted that the interpretation for which the Commissioner contended was supported by the extrinsic material. The Commissioner then refers to some, but not all of the extrinsic material (other extrinsic material not addressed by the Commissioner is referred to in JADK such as the totality of the Presentation Speech and not just the examples referred to therein).

44. The Commissioner submitted that the ordinary meaning of the word ‘fee’ does not include disbursements, although the dictionary definition referred to included payment for services (which would seem to include disbursements such as fees for the provision of expert evidence and fees for the supply of transcripts). I do not think dictionary definitions of the word ‘fee’ are of any help in this context.

45. The Commissioner submitted that the interpretation for which the Commissioner contended was more harmonious with the objects of the ACAT Act, namely that access to the Tribunal should be inexpensive. There is some force to that submission, but the section relied on refers to access to the Tribunal being inexpensive, not proceedings in the Tribunal. That may be splitting hairs somewhat, or perhaps it is an arid semantic distinction, but at least some of the expert witness’s fees charged to Molonglo in this case were critical to it prosecuting its case. That is, Molonglo’s case would have been doomed to fail without incurring those expert witness’s fees.

46. In that sense, access to the Tribunal was made expensive because of the nature of the case (being one requiring expert evidence) rather than by a provision which governed who might have to pay those expert witness’s fees.

47. If I was against the Commissioner on the meaning of “any other fee”, the Commissioner submitted that only fees which were necessary should be ordered to be paid. The parties agreed that if that were the case the amounts in Column 3 of the Table would be payable.

48. In relation to whether the amounts claimed were “necessary for the application”, the Commissioner submitted that ‘necessary’ was a strong word, and it could be contrasted with the word ‘reasonable’ in sections 48(2)(b) and (d). The Commissioner submitted that to be ‘necessary’ required more than being reasonable.

49. I agree with this submission. Molonglo, in substance, equated ‘necessary’ with reasonable. But if that were the case one would assume parliament would have used the word ‘reasonable’ rather than ‘necessary’. I think it fair to say that the ACAT’s jurisdiction seeks to confine the costs parties may incur. One method utilised is to prohibit compensation being received by a successful party for professional costs, thus discouraging (but not preventing) the retention of lawyers. Another is to only compensate a successful applicant for necessary disbursements rather than reasonable ones, such as only one expert in any relevant field rather than two.

Decision

50. I am not persuaded that I should come to a different conclusion to that reached in JADK as to the meaning and operation of section 48.

51. As to ‘necessary’, I agree with the Commissioner’s submissions. Necessary means something less than reasonable, and in my view ‘necessary’ means something like strictly necessary, indispensable, essential or vital.

52. For example, one expert valuer’s evidence was indispensable, essential or vital to Molonglo in prosecuting its case, but the second expert valuer’s evidence was not (it covering the same ground as the other valuer’s evidence).

53. It seems to me that the fees set out in Column 3 were each necessary, indispensable, essential or vital to Molonglo’s case.

54. In my view, in the circumstances of the case, the awarding of this amount for necessary fees should follow the event.

55. In relation to Molonglo’s application for professional fees, there is no dispute that those are not recoverable in the Tribunal. The time for appealing the decision in CIC has well passed. An appeal was filed in Jolley but was discontinued on 17 March 2026. Therefore, nothing is to be gained in making a decision on professional costs in circumstances where any change in the law as it applies to the Tribunal in this regard is purely theoretical. Orders 1. I make the following Order: (a) The respondent is to pay the applicants’ costs of $185,866.48.

……………………………….. Acting Presidential Member G Curtin SC

Date(s) of hearing: On the papers Counsel for the Applicant: Mr J Bird Solicitors for the Applicant: Clayton Utz Counsel for the Respondent: Mr A Berger KC with Mr N Oram and Ms J Cunliffe Solicitors for the Respondent: ACT Government Solicitor