1. The applicant relied upon an affidavit of Ebony Rice affirmed 8 April 2025 ('the Rice Affidavit') in relation to the amount of costs sought. The applicant submitted at paragraphs 16 and 17 that:

Pursuant to the Rice Affidavit, the OC's actual costs of and incidental to the Proceeding and the Costs Applications is $25,950.59 (excl GST).

Given that the actual costs are less than that of the scale costs, the OC seeks that the Tribunal makes an order on the standard basis, with such costs to be determined on the County Court scale. The OC seeks that the Tribunal exercise its power pursuant to section 111 of the VCAT Act to fix the amount of costs to be paid by the Respondent to the OC in the amount of $28,457.65 (excl GST). The OC seeks an order that such costs be fixed in the amount of $28,457.65 (excl GST), as calculated in the Rice Affidavit, to avoid further delay and expense in a potential assessment.

1. In light of this submission, it appears, doing the best that I can on the information I have, that the applicant is seeking that costs be fixed on scale that are higher than the costs actually incurred. If this accurately represents the applicant's intended submission, it is unclear on what basis the applicant considers that costs ought be fixed on scale that are higher than the costs actually incurred by the applicant. If this is not the intention of the applicant's submission, then what is, in fact, being sought by the applicant for costs is not evident to the Tribunal from the submission.
2. The respondents submitted that the Tribunal ought reject the applicant's costs application because the threshold for departing from the default position had not been met, and it would be unfair and unreasonable to make such an order in the circumstances of this case.
3. The starting point of this application, as with all costs applications before the Tribunal, is the presumption at section 109(1) of the VCAT Act that each party is to bear their own costs in the proceeding. However, the combined effect of sections 109(2) and 109(3) of the VCAT Act is that the Tribunal can exercise its discretion to depart from the presumption and make a costs order against a party if satisfied that it is fair to do so, having regard to the various factors set out at subsections 109(3)(a) to (e) of the VCAT Act.
4. On the parties' respective submissions, the following issues arise for consideration by the Tribunal:

Whether the respondents were in possession of sufficient information and ought to have known that the threshold issue was unlikely to be successful (sections 109(3)(a)(vi), (b), (c) and (e) of the VCAT Act)

1. The applicant contended that the respondents ought to have known that the levies sought to be recovered in the proceeding were not, on any view, the same as the levies sought to be recovered in the previous proceeding OC698/2020.
2. The respondents submitted that the applicant did not provide sufficient information in relation to each of the special levies it claimed in both proceedings, OC698/2020 and OC1095/2022. The respondents said they could only rely on the affidavit of Glen Osmond which shows that there were 2 special levies claimed by the applicant in both cases (fee notices dated 4 October 2019 for $339.47 and 23 October 2019 for $339.47).
3. Furthermore, the respondents submitted that although on 3 August 2020 the applicant informed the Tribunal that OC698/2020 had settled, those same special levies appeared again in the original claim in OC1095/2022, and were only removed by the applicant on 18 September 2024, 1 day before the first hearing. The respondents contended that the applicant either knew or ought to have known that it had no basis to pursue these special levies in this proceeding and may have erroneously re-issued the levies and then wrongly included them in the subsequent proceeding. The respondents argued that had they not filed a defence and instead paid the amounts claimed, they would have suffered clear detriment and, in those circumstances, it was reasonable for them to request that the threshold issue be determined by the Tribunal.
4. Although it had been anticipated by the Tribunal's orders of 21 June 2023 that the threshold issue would be determined on the papers, when reviewing the material filed by the parties in response to those orders the Tribunal found that further evidence was required in order to determine whether the applicants were prevented, by operation of section 74 of the VCAT Act, from pursuing the claims made in the proceeding.
5. The Tribunal noted, amongst other things, that the fee notice dated 18 November 2019 and the final fee notice dated 17 January 2020, which were relied upon in the application for OC698/2020, appeared to be relevant to this proceeding but had not been filed. Furthermore, the Tribunal considered that decisions of the applicant at Annual General Meetings and Committee Meetings in 2018, 2019, 2020, 2021, and 2022 also appeared to be relevant to the proceeding but had not been filed with the Tribunal.
6. The Tribunal found that, as not all relevant evidence was before it, it was appropriate to list the proceeding for a fee recovery hearing, which was fixed for 19 September 2024, with directions for the applicant to file and serve the evidence listed at paragraph 29 by 12 July 2024.
7. Whilst the respondents' arguments in relation to the threshold issue ultimately did not succeed, on the evidence that was available to the Tribunal when making its order on 21 May 2024 it was clearly not apparent that their case in relation to the threshold issue was hopeless or that the applicant at that time had filed sufficient evidence to make out its case.
8. It was also evident to the Tribunal at the fee recovery hearing on 19 September 2024 that the respondents were unaware of case law, such as Peters v Southern Health [2002] VCAT 120, which informed the Tribunal's decision in relation to the threshold issue. Namely, that although proceeding OC698/2020 had been withdrawn by the applicant, section 74(2)(d) of the VCAT Act did not operate to prevent the applicant from prosecuting the claims in this proceeding because the facts and circumstances of this application, read as a whole, could not be said to be, as a whole, the same in substance as OC698/2020 because some of the fee notices relied upon in this proceeding did not come into existence until after the application in OC698/2020 had been made. Given that the respondents were self-represented, this is hardly surprising.
9. Having reviewed the hearing recording from 19 September 2024, the Tribunal notes that the determination of the threshold issue occurred merely 16 minutes into the scheduled half day hearing which then proceeded as a fee recovery hearing. The progress of the fee recovery hearing was, however, hampered by the fact that the applicant submitted a significant amount of additional evidence at 4:12pm the day before the hearing which neither the presiding member nor the respondents had had an opportunity to read. Whilst the respondents sought an adjournment on that basis, the applicant's lawyer elected to proceed without regard to the late-filed documents and the adjournment application was refused by the Tribunal.
10. Ultimately, however, the Tribunal was unable to locate in the applicant's previously filed documentation any evidence to support a finding that all special levies the subject of the application related to extraordinary items of expenditure, as required by section 24(1) of the Act.
11. Accordingly, the hearing on 19 September 2024 was not adjourned because of the threshold issue or because of anything the respondents did or did not do but, rather, because the applicant could not adequately make out its case without relying on the late-filed evidence which the Tribunal did not have regard to at the hearing.
12. On the basis of the foregoing, and having particular regard to the fact that the respondents were self-represented, the Tribunal does not consider that they knew, or ought to have known, that the threshold issue was unlikely to be successful.
13. Furthermore, the Tribunal is not satisfied that the respondents' claims in relation to the threshold issue were made vexatiously or were so weak, as regards the relative strengths of the applicant's claims, that they had no tenable basis in fact or law. Neither is the Tribunal satisfied that the respondents were responsible for prolonging unreasonably the time taken to complete that part of the proceeding relating to the threshold issue, or that there is any other relevant matter to be considered in relation to this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

Whether the respondents were in possession of sufficient information and ought to have known that their defence was unlikely to be successful (sections 109(3)(a)(vi) and (e) of the VCAT Act)

1. The applicant's submissions noted that the respondents' defence was largely brought on the basis that a special resolution was required for the special levies the subject of the application because they amounted to twice the annual fees, and whether or not this threshold was reached was within the respondents' knowledge. Specifically, had the respondents done a simple calculation based on the applicant's annual budgets it would have been clear that a special resolution was not required. Moreover, the respondents were informed by the applicant's representative in 2019 that the relevant threshold had not been reached,[5] including being informed that a petition under section 97 of the OC Act could not be made against a special levy, copies of which were filed with the respondents' defence.
2. The respondents submitted that they did not have sufficient information to know that their defence was unlikely to succeed. Their request that the rationale and itemised costs of the special levies be provided, and that this matter be added to the annual general meeting, was rejected by the applicant's manager. They say they were entitled to access this information which was essential for them to meaningfully assess their position.
3. The respondents maintained that the applicant's manager's 18 March 2020 email advising them that a special levy could not be petitioned does not support the conclusion that their case was unlikely to succeed. They asserted that the dispute is relevant to the interpretation of section 24 of the OC Act and the applicant did not provide any legal authorities regarding the interpretation of this provision prior to the second hearing on 6 March 2025.
4. The respondents submitted that during that hearing, the applicant's representative initially adopted their interpretation of section 24 of the OC Act and spent considerable time, uninterrupted by the Tribunal, calculating all the special levies issued during the year to determine whether the total amount exceeded twice the annual fees, for the purposes of section 24. It was only after it was determined that the total amount of special levies issued in that year exceeded twice the annual fees that they shifted their position and proposed an alternative interpretation of section 24.
5. In the applicant's reply submission dated 21 May 2025, it was maintained that the interpretation and application of section 24 of the OC Act is clear on its face. Furthermore, the respondents, not the applicant, argued that the special levies required a special resolution, and it was for the respondents to substantiate their defence on this basis, which they failed to do. The applicant noted that given that the application proceeded on the basis that a special resolution was not required, it is nonsensical to suggest that the applicant at any time adopted the respondents' application of section 24 of the OC Act.
6. Whilst the respondents' defence incorporated other arguments such as what they asserted to be a failure by the applicant to respond to their requests to provide the rationale for, and the itemised costs of, the special levies, it is fair to say that their defence placed emphasis on what they perceived to be the applicant's error in raising an extraordinary levy without a special resolution.
7. The granular detail of the respondents' submissions in that regard are set out at paragraphs 7 to 15 of their Points of Defence, dated 27 September 2022, which discloses a misunderstanding on their part of how a requirement for a special resolution under section 24(4) of the OC Act is generated.
8. Specifically, section 24(4) of the OC Act requires a special resolution when an owners corporation proposes to raise special levies for extraordinary items of expenditure when the amount involved is more than twice the total amount of current annual administration and maintenance fees set under section 23 of the OC Act.
9. In this instance, the respondents asserted the requirement for a special resolution on the basis of their calculation that the special levy of $2,546.01 raised against their lot was more than double the approved annual Maintenance budget for their lot. The Tribunal considers that this error on the part of the respondents was genuinely made.
10. On the evidence, the Tribunal is not satisfied that the respondents' claims in relation to their Defence of the proceeding were conducted vexatiously or that there is any other relevant matter raised under this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

Whether, notwithstanding the known facts, particularly in relation to the respondents being informed by the applicant of the valid basis of the applicant raising those special levies, the respondents unreasonably pressed their defence of the proceeding (sections 109(3)(a)(vi) and (e) of the VCAT Act)

1. The applicant claimed that, despite the respondents' admissions and the undisputed application of the OC Act in reference to the special levies and, therefore, the obvious deficiencies in the respondents' defence, the conduct of the respondents was unreasonable and unreasonably disadvantaged the applicant by:

(a) Causing delay in the applicant obtaining the benefit of the order;

(b) Causing delay in recovering levies which had a catalyst effect on the financial position of the applicant and other lot owners, whilst causing costs being incurred unnecessarily;

(c) Being forced to expend time, effort and resources of the applicant and its agents in prosecuting the proceeding;

(d) The Tribunal found that the respondents did not have a defence to the applicant's claim and did not have a basis to bring the threshold issue and held that the respondents were liable for the amounts claim; and

(e) It is therefore reasonable to infer that the respondents' defence was pursued for some ulterior motive.[6]

1. The respondents claimed that the applicant failed to establish, or provide any evidence to establish, that the respondents unreasonably pursued their defence in this proceeding. Among other issues, the respondents argued that the validity of the relevant special levies and the application of section 24 of the OC Act are matters that should properly be determined by the Tribunal.
2. The respondents asserted that they acted reasonably at all times and did not cause any unreasonable disadvantage to the applicant, and it is not reasonable to conclude that there were obvious deficiencies in their defence or in their submission on the threshold issue. Specifically, they claimed that:

(a) They consistently complied with the Tribunal's orders and followed procedural steps without delay. In fact, it was the applicant's conduct that should be considered unreasonable, including by raising similar issues in overlapping fee notices in OC698/2020 and OC1095/2022, submitting documents after the due date on several occasions, and altering the claimed amount just one day before the hearing;

(b) There is no evidence to support the applicant's claim that the disputed amount of $1,685.12 had a catalytic effect on the financial position of the applicant or other lot owners. The respondents had paid all the standard levies on time except for those under dispute in this case. They claimed that other lot owners who chose to follow the respondents suggests that the respondents' actions were reasonable and supported by other lot owners;

(c) The time and effort spent by each party in preparing for the proceeding is a natural part of the process, particularly as the proceeding was initiated by the applicant. As laypersons, the respondents were likely to have spent even more time and effort preparing for the proceeding under significant pressure.

(d) The Tribunal did not suggest, nor did the applicant provide any evidence or authorities to prove, that the respondents' claim was unreasonable. The outcome of the Tribunal's findings are irrelevant and cannot be used as evidence to suggest that the respondents had no basis for defending the claim. If such an argument were adopted, any Tribunal decision against a party could be used as evidence in a costs application against them, which would contradict the intention of section 109 of the VCAT Act.

1. The Tribunal accepts that the respondents having raised a defence to the application caused delay in both the applicant obtaining the benefit of the order and being able to recover the levies the subject of the order. However, the Tribunal does not accept that the relatively small amount of levies ultimately found to be owing by the respondents had a 'catalyst effect' on the financial position of the applicant and other lot owners.
2. The Tribunal accepts that the applicant was forced to expend time, effort and resources in prosecuting the proceeding. However, the Tribunal is not satisfied that the respondents having pressed their defence amounted to unreasonable conduct that unnecessarily disadvantaged the applicant. As is usually the case in fee recovery proceedings, it was for the applicant to prove its case and the respondents were entitled to put the applicant to its proofs.
3. Furthermore, the Tribunal has already found at paragraphs 28 to 30 and 33 to 36, that the delays in the progression of the proceeding outlined in those paragraphs were occasioned by the conduct of the applicant, not the respondents.
4. For the reasons previously set out at paragraphs 43 to 47, the Tribunal is not satisfied that the respondents' claims in relation to their defence of the proceeding were conducted vexatiously.
5. Neither does the Tribunal consider that there is any other relevant matter raised under this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

Whether the respondents unreasonably forced the applicant to respond to their defence, the threshold issue and the Liu affidavit and, therefore, to prepare further affidavit material, outline of submissions and appear at the hearings in September 2024 and March 2025 g (sections 109(3)(a)(vi), (c), (d) and (e) of the VCAT Act)

1. The applicant's submissions did not expand further upon this claim.
2. In their submissions, the respondents claimed that the applicant has not provided any evidence to support this claim and it is unreasonable to suggest that the exercise of their right to submit a defence constituted an attempt to compel the applicant to prepare for the proceeding. The respondents asserted that their response was a natural and expected consequence of the process and they followed the Tribunal's orders throughout the proceeding exactly.
3. The Tribunal accepts that the applicant was put to additional expense in prosecuting this proceeding, over and above what would ordinarily be incurred in an undefended fee recovery proceeding. However, for the reasons set out at paragraphs 28 to 30, 33 to 36, and 51 to 53 above, the Tribunal does not consider that the respondents were responsible for unreasonably prolonging the time taken to complete the proceeding or that the relative strengths of the applicant's claims were so strong that the respondents' claims were, by comparison, completely untenable.
4. By its nature, a fee recovery hearing is a proceeding that is dealt with on a very routine basis at the Tribunal and this is not, of itself, a consideration that would justify an award of costs against the respondents under this aspect of the applicant's claim. Furthermore, although the proceeding was adjourned part-heard for a second hearing day, this was not due to any inherent complexity associated with the proceeding, but rather because the applicant had not provided sufficient evidence to make out its case.
5. For the reasons set out at paragraphs 43 to 47 the Tribunal is not satisfied that the respondents' claims in relation to their defence of the proceeding were conducted vexatiously. Neither does the Tribunal consider that there is any other relevant matter raised under this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

Whether the respondents, on their own material and knowledge, ought to have known that their defence and claim under the threshold issue lacked merit as their defence admitted to not paying the amounts claimed by the applicant (sections 109(3)(a), (c), (d) and (e) of the VCAT Act)

1. The respondents' submissions in relation to this aspect of the applicant's claims are outlined at paragraph 57 above.
2. The material filed by the respondents makes it clear that they had not paid the outstanding levies the subject of the application because they were disputing that the applicant had complied with the requirements of the OC Act in raising the levies.
3. Furthermore, for the reasons set out at paragraphs 28 to 31 and 33 to 36, the Tribunal considers that it was not self-evident throughout the proceeding that the respondents' defence and claim under the threshold issue lacked merit, especially given that the protraction of the proceedings was occasioned by the applicant's failure to file and serve all the evidence required to substantiate the claims raised in the application.
4. On the evidence, the Tribunal is not satisfied that any of the factors set out at section 109(3)(a)(i) to (vi) are relevant to the respondents' conduct of their defence, such as would constitute an unnecessary disadvantage having been occasioned to the applicant.
5. Having regard to the factors set out at paragraphs 58, and 62 to 63 above, the Tribunal does not consider that the relative strengths of the parties' respective claims justifies an award of costs under this consideration. For the reasons set out at paragraph 59, neither is the Tribunal satisfied that the nature and complexity of the proceedings justifies an award of costs against the respondents.
6. Furthermore, the Tribunal does not consider that there is any other relevant matter raised under this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

Following the first hearing in September 2024, whether the respondents' failure to adduce any evidence to support their claim that the applicant had misallocated their payments caused an adjournment, constituted vexatious conduct of the proceeding, or whether the respondents were responsible for prolonging unreasonably the time taken to complete the proceeding (sections 109(3)(a)(iv), (vi) and (b) of the VCAT Act)

1. The respondents' submissions in relation to this consideration are outlined at paragraph 57 above.
2. The Tribunal has previously found that the adjournment of the first hearing on 16 September 2024 was occasioned by the applicant's, not the respondents', conduct. The proceeding was subsequently determined at the next hearing on 6 March 2025.
3. On that basis, the Tribunal is not satisfied that the respondents' failure to adduce any evidence to support their claim that the applicant had misallocated their payments caused an adjournment, constituted vexatious conduct of the proceeding, or that the respondents were responsible for prolonging unreasonably the time taken to complete the proceeding.
4. Neither does the Tribunal consider that there is any other relevant matter raised under this aspect of the applicant's claim that would satisfy the Tribunal that it is fair to depart from the starting proposition that each party is to bear their own costs in the proceeding.

1. The applicant submitted that whilst the Tribunal usually makes costs orders on a standard basis, it is appropriate to award costs on an indemnity basis when a party is being particularly vexatious, cavalier or bloody minded.[7]
2. The applicant submitted that it was pertinent to consider that the respondents knew or ought to have known that the special levies the subject of the application did not require a special resolution and were within the power of the OC Committee pursuant to section 24 of the OC Act and that their defence of this nature lacked merit. In those circumstances, they ought not be permitted to have the applicant put to significant costs and then seek to obtain the benefit of a standard costs order leaving the applicant out of pocket through no fault of its own as this would result in all lot owners paying part or all the costs of prosecuting the proceeding.[8]
3. The respondents submitted the following in relation to this aspect of the applicant's claim:

(a) The applicant decided to engage an expensive representative to pursue the proceedings over a nominal amount of $1,685.12, which resulted in legal costs exceeding 17.8 times the amount claimed. This unreasonable conduct has caused unnecessary financial strain on all lot owners, including the respondents;

(b) All lot owners having to bear part of the costs of the proceeding is merely one consideration and not, on its own, sufficient to justify a departure from the prima facie rule under section 109 of the VCAT Act;

(c) The legal authorities relied upon by the applicant are fundamentally and significantly different from the circumstances of this case; and

(d) There is no evidence that the respondents acted in a manner that was vexatious, cavalier or bloody-minded that would justify the award of indemnity costs, as referenced by the applicant in its submission.

1. The Tribunal notes that the following has been observed in relation to the award of indemnity costs by the Tribunal:

(a) The award of costs on a full indemnity basis is a 'most unusual award' that is made only in exceptional circumstances; [9]

(b) The Tribunal will not award costs on a full indemnity basis 'unless the conduct of the culpable party has been so extreme as to be quite vexatious or bloody minded'; [10] and

(c) Indemnity costs should only be awarded in the 'rarest of circumstances'. [11]

1. The Tribunal having not been satisfied that the respondents conducted this proceeding vexatiously, and there being no exceptional circumstances that would warrant an award of indemnity costs in this matter, the Tribunal is not minded to award indemnity costs against the respondents.

Any other matter the Tribunal considers relevant (section 109(3)(e) of the VCAT Act)

1. The Tribunal may depart from the presumption under section 109(1) of the VCAT Act that each party is to bear their own costs in the proceeding and make an order, under section 109(2) of the VCAT Act that a party pay all or a specified part of the costs of another party to the proceeding, when satisfied that it is fair to do so, having regard to the relevant considerations set out at section 109(3) of the VCAT Act, including section 109(3)(e): any other matter the Tribunal considers relevant.
2. The Tribunal's usual practice in relation to costs applications under section 109 of the VCAT Act relating to fee recovery applications was summarised by then Senior Member Vassie, as follows:

Subsection (1) lays down a general rule that in a VCAT proceeding the parties are to bear their own costs. There is nothing in the nature of a fee-recovery proceeding, or in the nature of a proceeding brought by an aggrieved lot owner against an owners corporation, that of itself justifies a departure from the general rule...

[However] it has long been the Tribunal's practice, when an owners corporation has succeeded in a fee-recovery proceeding against a lot owner, and when the Tribunal is satisfied that it is fair to do so, to make an order that the lot owner pay the owners corporation a nominal amount of costs which will include the amount of the filing fee that the owners corporation paid when it lodged the application. The reason is that it is usually fair to require a lot owner who has defaulted in payment of fees to bear a greater share of the costs incurred by the owners corporation than is borne by the lot owners who have paid their fees. Even if I were to refuse to make an order for costs otherwise, I would make such an order in the fee-recovery proceeding for payment of the nominal amount... [12]

1. The Tribunal considers that its usual practice in relation to making a nominal award of costs to the successful applicant in proceedings of this nature is relevant, under section 109(3)(e) of the VCAT Act, to the exercise of the Tribunal's determination of whether it would be fair, in the circumstances of this case, to do so.
2. Whilst the content of the applicant's submissions did not satisfy the Tribunal that it was fair under section 109(3) of the VCAT Act to award the costs the applicant was seeking, the Tribunal nonetheless considers it to be fair in this instance that the respondents pay a greater portion of the applicant's legal costs than other lot owners given that the fee recovery application was wholly successful.
3. That said, in assessing the amount of costs it would be fair to award the applicant, the Tribunal has taken into consideration both the relatively modest original claim amount of $4,231.10 and the successful claim amount of $1,247.87 for outstanding levies (reduced for payments since made) plus $437.25 interest, a total of $1,685.12, to the date of the hearing on 6 March 2025.
4. Having regard to these considerations, the Tribunal considers it fair to make a nominal award of costs to the applicant in the usual range awarded for fee recovery hearings involving the quantum of outstanding fees the subject of this application.

1. For the reasons stated, the Tribunal considers it fair to make an order under section 109(2) of the VCAT Act that the respondents pay the applicant's costs of and incidental to the application fixed in the sum of $2,100.00, with fair allowance made for the following:

(a) Preparation of the application dated 18 July 2022 and all supporting documents;

(b) Payment of the Tribunal's application fee of $315.60;

(c) Preparation of the applicant's submissions under section 74(2) of the OC Act;

(d) Preparation of the applicant's Summary of Proofs and supporting documents; and

(e) Attendance at the first day of the final hearing on 19 September 2024.

[1] Peters v Southern Health [2002] VCAT 120.

[2] Braeside Bearings Pty Ltd v HJBrignell & Associates (Boronia) [1996] VSC 348; [1996] 1 VR 17 at 20_, Sawyer v Transport Accident Commission_ (2002) 19 VAR 48; [2002] VCAT 86 at [20]- [22].

[3] Lillas & Loel Lawyers Pty Ltd v Celona (2014) 43 VR 1; [2014] VSCA 19 at [32].

[4] Edwards v Owners Corporation PS628502Y (Owners Corporation) (Costs) [2019] VCAT 853.

[5] Paragraph 22 of the Affidavit of Xiaoyan Liu, affirmed 9 August 2022.

[6] 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 at [32] (referring to matters for indemnity costs overlap those for vexatious conduct, referring to Ugly Tribe Co Pty Ltd v Sikola [2001] VSC 189 at [7.iv] ' ... ulterior motive'; See also: State of Victoria v Bradto Pty Ltd [2006] VCAT 1813 at [67], [68]; Moussa v Herben (Building and Property) [2019] VCAT 560 at [28] - [30].

[7] Southern Grampians SC v Superior Selection Pty Ltd [2020] VCAT 1208 at [25]; Milankovic v Binyun Pty Ltd & Ors [2010] VCAT 538 at [26]; Velardo v Andonov [2010] 24 VR 240; [2010] VSCA 38 at [47]; Colvington Pty Ltd v Mildura Rural CC [2009] VCAT 2363 at [12]; 24 Hour Fitness Pty Ltd v W & B Investment Group Pty Ltd [2015] VSCA 216 at [9].

[8] For example, Filippou Management Pty Ltd v MREEF Project Company No. 11 Pty Ltd [2010] VCAT 1261 at [21(d)]; Owners Corporation No. 1 PS542645C v Filippou Management Pty Ltd [2010] VCAT 2085 at [36(b)], Member Proctor did consider that not making a cost order would result in all lot owners paying party of the costs of defending the proceeding, that the OC would be liable to pay as a factor support costs orders; and

In J-Corp Pty Ltd v Australian Builders Labourers Federated Union of Workers (WA Branch) (No 2) [1993] FCA 70; (1993) 46 IR 301 at [303], Justice French did not consider it necessary to find that the proceeding had been commenced or continued for an ulterior motive to exist or that there was wilful disregard of the known facts or the clearly established laws. Justice French said that the discretion to award indemnity costs could be enlivened if, "for whatever reason, a party persists in what should on proper consideration be seen to be a hopeless case". (cited with approval in Macedon Ranges Shire Council v Thompson [2009] VSCA 209 at [15]; Winslow Constructors v Head, Transport for Victoria (Costs) [2021] VSC 74 at [11]). (emphasis added)

[9] Hobsons Bay CC v Haouli (2001) 7 VPR 249; [2001] VCAT 433 at [30].

[10] Melbourne CC v Upmark Pty Ltd [2009] VCAT 11 at [15].

[11] Yarra Valley Water Ltd v Henley Arch Pty Ltd [2009] VCAT 504 at [39].

[12] Owners Corporation No. 1 PS401009W v Anderton (Owners Corporation) (Costs) [2023] VCAT 1023 (1 September 2023).