1. The applicant submits both factors listed at section 109(c)-(d) of the VCAT Act are relevant. That is, not only did the respondent's counterclaim account for nearly all complex issues dealt with in the proceeding but, again, it was largely unsupported by any evidence of actual loss.
2. For example, the applicant contends a significant and costly portion of the final hearing was taken up by expert evidence regarding the respondent's defect claims, in circumstances where she failed to adduce any evidence regarding the quantum of those claims.[19]
3. I accept the applicant's submissions in relation to the factors in section 109(3)(c) and (d). I also found the respondent's counterclaim for the cost of completion of the dwelling (which was more than $234,000) was misconceived as it was well outside the applicant's contractual scope of work, which was confined to moving and re-locating an existing home from Melbourne to a rural property.
4. Further, the hearing, which ran for 4 days over 10 months in 2023, involved lay and expert evidence about the quality of the applicant's work and formation and interpretation of the home relocation contract, including many breaches of contract alleged by the respondent in her defence and counterclaim. It was clear to me that, had the respondent obtained legal assistance before or during the hearing, some of the allegations in her counterclaim may have been withdrawn, which would have led to a substantial reduction in the nature and complexity of the litigation and evidence given in relation to the allegations.

1. The applicant seeks an order that its costs should be fixed by the Tribunal under section 111 of the Act in the amount of $98,444.62. This amount is referred to and supported by material in the second Cupples affidavit and incorporates:

(a) 60% of the legal fees actually incurred by the applicant (to reflect the deduction that might reasonably be made on taxation); and

(b) full reimbursement of the fees paid by the applicant, pursuant to section 115B(3)(c) and section 115C(2) of the VCAT Act.

1. The applicant contends that the Tribunal should fix the amount of costs to be paid by the respondent, pursuant to section 111(a) of the VCAT Act, because the proceeding has been on foot for more than four years (since November 2020) and it would save the parties considerable time and expense involved with a taxation of costs.
2. Rule 1.07 of the VCAT Rules provides that, in the absence of an order to the contrary, if the Tribunal makes a costs order, the applicable scale of costs is the County Court costs scale. I see no reason not to follow Rule 1.07 in this case.
3. The Tribunal has a discretion under section 111 to fix the amount of costs or order that costs be assessed, settled, taxed or reviewed by the Costs Court. The Tribunal is not expert in the assessment of costs and has held that the fixing of costs should be approached "with some reluctance".[20]
4. In circumstances where the Tribunal is satisfied a costs order should be made, the Tribunal has fixed costs in some cases where the amount of costs claimed is relatively small or certain and ordered costs be assessed by the Costs Court, in cases where the amount of costs being sought is substantial or uncertain.
5. In this case, because the amount of costs being sought by the applicant is large and uncertain, and the proper jurisdiction with the relevant expertise to assess costs is the Victorian Costs Court, I will order the respondent pay the applicant's costs of and incidental to the proceeding from the time of the settlement offers in December 2021, to be assessed by the Costs Court on a standard basis in accordance with the County Court costs scale.

1. [1] As noted at paragraph 9 of the Tribunal's Reasons in Moving Views Property Developments Pty Ltd v Hoo (Building and Property) [2024] VCAT 1019 (Reasons), the Applicant initially claimed damages totalling $84,867.50 and subsequently abandoned claims totalling $13,500.
2. [2] See paragraph 13 of the Reasons and the footnote thereto.
3. [3] Affidavit in Support at [5], together with the documents referred to therein.
4. [4]Being those principles expressed in Calderbank v Calderbank [1975] 1 All ER 333, as applied and considered in Hazeldene's Chicken Farm Pty Ltd v Victorian Workcover Authority (No 2) [2005] VSCA 298; 13 VR 435 (Hazeldene's).
5. [5]Being the circumstances set out in Hazeldene's at 435, [25].

[6] Metricon Homes Pty Ltd v Sawyer [2013] VSC 518.

[7] Footnote: Mercuri v TCM Building Group Pty Ltd [2018] VSC 604 at [101].

1. [8] See paragraphs 176 to 178 of the Submissions.
2. [9] See paragraph 179 of the Submissions.
3. [10] See paragraph 180(a) of the Submissions.
4. [11] See paragraph 180(b) of the Submissions.
5. [12] See paragraph 180(c) of the Submissions.
6. [13] See paragraphs 140 to 141 of the Reasons.
7. [14] See paragraph 142 of the Reasons.
8. [15] See paragraph 181(a) of the Submissions
9. [16] See paragraph 181(b) of the Submissions

1. [18] See paragraph 181(c) of the Submissions

[20] Hobsons Bay CC v Haouli [2001] VCAT 433 at [30].