Plaintiff v Defendant

2 The background as to the current application can be summarised as follows:

(a) Mr Hopkins Snr and Mr Hopkins Jnr are father and son. Mr Hopkins Jnr is, and has been, the owner of a number of properties in regional Victoria and Tasmania ('properties');

(b) after a falling out within the family, and correspondence between solicitors, Mr Hopkins Snr issued a proceeding in VCAT seeking, among other things, declarations, that he held a beneficial interest in three properties owned by Mr Hopkins Jnr, and an order that the properties be sold and half of the net proceeds be paid to him;

(c) the proceeding failed to settle at mediation, and proceeded to a two day hearing before the Tribunal ('primary hearing'). Mr Hopkins Snr's claim to a beneficial interest in the properties failed, but he was successful in obtaining compensation for payments made and work done by him with respect to the properties; and

(d) in a subsequent hearing ('costs hearing') the Tribunal Member heard submissions from both parties with respect to the costs of the proceeding. The Tribunal Member ordered that Mr Hopkins Snr pay the sum of $21,461.16 in respect of Mr Hopkins Jnr's costs incurred after the date of an offer made by Mr Hopkins Jnr on 24 July 2012 to compromise the proceeding ('24 July offer') with an 'allin' payment of $37,000. This order was made pursuant to ss 112-115 ('settlement provisions') of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) ('the Act').

3 Essentially, the issues for determination in relation to the question of costs are:

(a) whether, notwithstanding the findings I made on the appeal concerning the adequacy of the reasons of the Senior Member, I ought allow the question of costs to be re-agitated afresh, given the factual findings and conclusions of law made by the Senior Member;

(b) whether the settlement provisions could apply to an 'all-in' offer, which was the basis upon which Mr Hopkins Jnr made the 24 July offer;

(c) whether Mr Hopkins Jnr had established that the terms of the 24 July offer were a better outcome than that achieved by Mr Hopkins Snr in the proceeding, taking into account, as required by s 112(3)(a) of the Act, the costs that the Tribunal would have awarded at the time the offer was made, having regard to the nature of the enquiry required to be made by reason of the terms of s 112(3)(a) of the Act; and

(d) whether the 24 July offer was an effective Calderbank offer, which was unreasonable for Mr Hopkins Snr to reject.

4 Prior to the hearing on 15 October 2014 the parties filed further evidence with respect to the question of costs. The solicitor for Mr Hopkins Snr relied upon an affidavit sworn by him on 19 August 2014, which deposed to his estimate of Mr Hopkins Snr's partyparty costs up to and including the date of the 24 July offer, calculated on the County Court scale, as being $8,642.73. The solicitor for Mr Hopkins Jnr deposed, in her affidavit sworn on 10 September 2014, that the value of the accounts rendered to Mr Hopkins Jnr by her firm from the date the 24 July offer expired at the conclusion of the costs hearing totalled $34,763.80. The latter affidavit was presumably filed to provide evidentiary support for the costs awarded by the Tribunal Member in Mr Hopkins Jnr's favour at the conclusion of the costs hearing.

5 In relation to the affidavit sworn by the solicitor for Mr Hopkins Snr, having reviewed the schedule of costs, I have no difficulty with the quantum of those costs, and no evidence (such as the opinion of a costs consultant) was called to contradict this evidence.

6 My conclusions regarding each of the above issues are, in summary, as follows:

(a) it is appropriate, given the findings and orders I made on the appeal, the decision of Garde J in Metricon Homes Pty Ltd v Sawyer ('Metricon'),[2] and the additional evidence filed on behalf of the parties, to reconsider the question of the costs afresh, although having regard to the Senior Member's findings and observations where appropriate;

(b) the provisions of s 112 of the Act do apply to 'all-in' offers;

(c) Mr Hopkins Jnr has established that the terms of the 24 July offer were more favourable to the outcome Mr Hopkins Snr achieved at the trial, on the basis that the Senior Member's determination that the Tribunal would not have made an order for costs in favour of Mr Hopkins Snr, considered afresh, was correct;

(d) the 24 July offer was an effective Calderbank offer, and it was unreasonable for Mr Hopkins Snr to reject the offer; and

(e) even if, contrary to the conclusion consequent upon my construction of s 112(3)(a) of the Act, Mr Hopkins Jnr was unable to rely upon the 24 July offer, it would be fair that a costs order be made in favour of Mr Hopkins Jnr for the costs of the primary hearing.

7 In relation to the question of whether it is appropriate to consider the matter afresh, I accept in general terms, that a superior court should be reluctant to disturb the factual findings and the exercise of discretion of the primary decision maker, particularly in relation to matters such as costs, and that in many cases, mere inadequacy of reasons might not infect the soundness of the original decision. However, in my reasons for judgment on the appeal,[3] I determined that I would consider the matter afresh, and provided an opportunity for the parties to file and serve further evidence and/or submissions with respect to the following matters:

(a) whether, having regard to the matters set out in s 109(3) of the Act, the Tribunal would have made any orders as to costs at the time the offer in the 24 July letter was made;

(b) if the Tribunal would have made an order for costs at that time, the likely quantum of those costs (on both a 'party-party' and/or indemnity basis);

(c) in the event that the offer in the 24 July letter complied with s 112 of the Act, whether there was any grounds for the displacement of the presumption that costs would be ordered in favour of Mr Hopkins Jnr after that date; and

(d) to the extent that 24 July letter relied upon Calderbank principles, and having regard to the decision of the Court of Appeal in Hazeldene's Chicken Farm Pty Ltd v Victorian WorkCover Authority (No 2) ('Hazeldene's'),[4] whether it was reasonable for Mr Hopkins Snr not to accept the offer contained in the 24 July letter.

8 Further, in the current case, there are particular reasons for considering the matter afresh. First, the costs hearing took place before the judgment in Metricon, where Garde J not only decided that s 112 applies to 'all-in' offers, but also specified, with some precision, the steps required to be taken, and the information that needs to be before the Tribunal when making determinations under s 112 of the VCAT Act. While the Tribunal Member held a similar view to Garde J regarding the applicability of s 112 to 'all-in' offers, the procedure specified in Metricon was not undertaken by the Tribunal Member, understandably given that the costs hearing before him predated the judgment in Metricon. Given what has occurred, it seems appropriate, now that additional information is available, to reconsider the question of costs in the light of that additional judicial authority and guidance. Further, while it is not necessarily the case that the correctness of an original determination would be impugned by inadequate reasons, there are certainly instances where that has been found to be the case.[5]

112 Presumption of order for costs if settlement offer is rejected

(a) a party to a proceeding (other than a proceeding for review of a decision) gives another party an offer in writing to settle the proceeding; and

(b) the other party does not accept the offer within the time the offer is open; and

(c) the offer complies with sections 113 and 114; and

(d) in the opinion of the Tribunal, the orders made by the Tribunal in the proceeding are not more favourable to the other party than the offer.

(2) If this section applies and unless the Tribunal orders otherwise, a party who made an offer referred to in subsection (1)(a) is entitled to an order that the party who did not accept the offer pay all costs incurred by the offering party after the offer was made.

(3) In determining whether its orders are or are not more favourable to a party than an offer, the Tribunal -

(a) must take into account any costs it would have ordered on the date the offer was made; and

(b) must disregard any interest or costs it ordered in respect of any period after the date the offer was received.

10 The effect of s 112 of the Act is to displace the presumption in s 109 of the Act that each party to a proceeding before the Tribunal bear their own costs with a presumption that, where a settlement offer which otherwise complies with the settlement provisions of the Act would, if accepted, provide the offeree with a better outcome than ultimately ordered by the Tribunal, the offeree must pay costs after the date of the offer. Both presumptions are, of course, rebuttable.

11 As for the question of whether s 112 applies to 'all-in' offers, I respectfully agree with the conclusion of Garde J in Metricon that the provisions of s 112 apply to 'all-in' offers. Contrary to the submissions made on behalf of Mr Hopkins Snr, it is clear from the reasons for judgment,[6] that his Honour considered the reasons of Ashley JA in Velardo v Andonov,[7] where his Honour highlighted the practical difficulties facing an offeror under the provisions of s 112 of the Act in circumstances where an offeror would be making an 'all-in' offer without necessarily being aware of the quantum of costs incurred by the offeree to date. Garde J endorsed the statement of the Tribunal Member below that:

[discussing the difficulties referred to above] That raises difficulties of proof for the offeror but the Court of Appeal has not said that, as a consequence, the offer was not made on an 'all-in' basis. It simply recognises that each of the parties, in making and rejecting the offer takes the risk as to whether or not the Tribunal would have made an offer for costs and in what amount.[8]

12 Further, Garde J referred to the statements of Gillard J in MT Associates Pty Ltd v AquaMax Pty Ltd (No 3) ('MT Associates'),[9] which emphasised the importance of 'allin' offers in promoting the settlement of litigation, and also made the following observation:

In this way, the use of 'all-in' offers may simplify the settlement of proceedings, not least where there is a litigant in person who may not understand or may distrust the costs assessment and taxation process. [10]

13 Having found that s 112 of the VCAT Act applies to the offer made by Mr Hopkins Jnr, it is then necessary to determine whether the terms of the offer were more favourable to Mr Hopkins Snr than the ultimate result before the Tribunal. Garde J in Metricon confirmed that the onus lay upon the offeror to make good such a proposition, but that it is incumbent upon the Tribunal to ensure that procedures and processes were put in train by which the correct position could be known, such as ordering discovery, or the filing and service of expert reports, or, in appropriate cases, referring the issue to the Costs Court.

14 The 24 July offer offered to compromise the proceeding with a payment by Mr Hopkins Jnr to Mr Hopkins Snr in the sum of $37,000. At the conclusion of the primary hearing, the Tribunal member ordered that Mr Hopkins Jnr pay Mr Hopkins Snr the sum of $29,389.70 on account of funds expended and work done by him on the properties. Mr Hopkins Snr's claim to a beneficial interest in the properties was rejected by the Senior Member.

15 Taking the judgment sum together with the costs of Mr Hopkins Snr, one arrives at the sum of $38,032.43, that is, $1,032.43 greater than the amount offered in the 24 July offer. Accordingly, this proceeding raises squarely the issue of the nature of the enquiry that needs to be undertaken by the Tribunal pursuant to s 112(3)(a) of the Act.

16 In particular, the question which is of significance to the issue in this proceeding is, when assessing whether the Tribunal's orders are more favourable to a party than an offer made by the opposing party, the Tribunal, when taking into account any costs it would have ordered on the date the offer was made, must turn its mind to whether it would have made any order for costs at the time the offer was made, or whether the enquiry is limited, as suggested by Garde J in Metricon,[11] to the amount of costs that the Tribunal would have ordered.

17 In the course of considering what steps must be undertaken by the Tribunal to ascertain whether the terms of an offer were more favourable to the offeree than the orders ultimately made by the Tribunal, Garde J made the following statement:

It is significant that s 112(3)(a) refers to any costs it would have ordered, and not any costs order it would have made. The provision is directed to the amount of costs that the Tribunal would have ordered rather than the costs order that the Tribunal would have made.

18 In Metricon, the nature of the dispute (concerning building defects) and the manner in which the hearing proceeded meant that the question of whether the losing party would have been required to pay costs to the victorious party was not an issue in contention in the hearing below or on appeal. All parties proceeded on the basis that there would have been an order for costs made at a relevant point in time: the real issues were which party bore the relevant onus of establishing whether the jurisdiction of s 112 was enlivened, and how the quantum of the costs was to be determined. This proceeding is of quite a different character, being essentially a dispute between family members, where the relationship between the parties could not be characterised as purely, or even largely, commercial, and the 24 July offer was made at a very early stage of the proceeding. Therefore, the question of whether any costs order would have been made at that time the 24 July offer was made is very much a live issue in this proceeding, and indeed, the Senior Member determined that he would not have made an order for costs at the time the offer was made, and as such did not embark upon any quantification exercise.

19 In many cases in the Tribunal unlike Metricon, the enquiry required by s 112(3)(a) is a multi-stage process: first, a determination of whether any costs would have been ordered at the time the offer was made, and, if the Tribunal determines that, having regard to the provisions of s 109 of the Act that it would have made a costs order, what type of costs order it would have made (that is, which Court scale ought to apply, and whether costs ought to be awarded on a partyparty basis or some other basis), and finally, the quantum of those costs. In my view, the language of s 112(3)(a) of the Act does not limit the Tribunal's task to a quantification of the costs incurred by a party to whom an offer is made, having regard, in particular, to s 109(1) of the Act, which provides that

Subject to this Division, each party is to bear their own costs of the proceeding.

20 Of course, s 109(2) empowers the Tribunal to order that a party pay part or all of the costs of another party in the proceeding, and costs orders are made by the Tribunal on a regular basis. However, while the principles and practices vary according to the nature of the proceeding, and the various lists within the Tribunal, it is clear from the language of s 109(1) that the default position at the Tribunal is that each party is to bear their own costs of a proceeding, unless the Tribunal is persuaded to order otherwise. Indeed, s 109(3) of the Act provides that the Tribunal may make an order for costs against a party only if it is satisfied that it is fair to do so, having regard to the various matters enumerated in s 109(3). The purpose of the general rule that each party is to bear its own costs has been expressed to be 'to promote access to justice generally and to minimise the overall level of costs in tribunal proceedings as far as practicable.'[12]

The Tribunal may make an order under subsection (2) only if satisfied that it is fair to do so, having regard to -

(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;

(d) the nature and complexity of the proceeding; and

(e) any other matter the Tribunal considers relevant.

22 Further, the authorities make it clear that the Tribunal must be persuaded that it is fair, or 'just and appropriate' to make an order for costs other than an order that each party bear their own costs. In Vero Insurance Ltd v The Gombac Group Pty Ltd,[13] Gillard J stated as follows:

In approaching the question of any application for costs pursuant to s 109 in any proceeding in VCAT, the Tribunal should approach the question on a step by step basis, as follows -

(i) The prima facie rule is that each party should bear their own costs of the proceeding.

(ii) The Tribunal may make an order awarding costs, being all or a specified part of costs, only if it is satisfied that it is fair to do so. That is a finding essential to making an order.

(iii) In determining whether it is fair to do so, that is, to award costs, the Tribunal must have regard to the matters stated in s 109(3). The Tribunal must have regard to the specified matters in determining the question, and by reason of paragraph (e) the Tribunal may also take into account any other matter that it considers relevant to the question.

23 Given the general rule, and the purpose of the general rule, it seems to me that s 112(3)(a) should be construed in such a way as to recognise, and give effect to, the general rule and its purpose. A construction of s 112(3)(a) which does not take into account the fact that in a substantial number of proceedings, the Tribunal would not be persuaded to depart from the general rule as to costs, seems to me to be inconsistent with the general rule and the purpose of the general rule, and could lead to anomalous results.

24 The purpose of the settlement provisions is to promote the settlement of disputes prior to trial, by abrogating the general rule as to costs in circumstances where a party rejects what in hindsight turns out to be a reasonable offer of settlement. As stated by Gillard J in MT Associates:[14]

Any offer made in litigation should be carefully considered and a party and his solicitor ignores or rejects the offer at his peril.

25 If the proposition that the only work that s 112(3)(a) has to do is to require a calculation of the quantum of the costs that would have been payable to the offeree at the time of the offer is correct, then this changes the risk calculation facing parties making offers or in receipt of offers. By way of example, a party pursuing what might be regarded as an unmeritorious claim could feel relatively confident about rejecting an offer which fell short of the costs incurred by it to date, even if that offer was an accurate assessment of the merits of the claim, because even if that party was totally unsuccessful at the conclusion of the proceeding, then provided the party can establish that the quantum of their costs exceeded the offer, the presumption that the offeree must pay the offeror's costs after that date could not be triggered.

26 On the other hand, any parties wishing to avail themselves of the opportunity to take advantage of the presumption in the settlement provisions of the Act would be forced to start from the premise that, at the very least, they would be required to make an offer that included an allowance for the other party's costs. That proposition appears to be not only inconsistent with the general rule, but also with the statements in the authorities regarding the legitimacy and effectiveness of 'allin' offers.

27 Another matter which supports my preferred construction of s 112(3)(a) is the requirement that the Tribunal, when determining whether its orders are or are not more favourable to a party than an offer, take into account any costs it would have ordered on the date when the offer was made (emphasis added). Of course, offers can be made at any stage during the course of a proceeding, and one would expect that many offers would be made well prior to the stage of a proceeding that the Tribunal might consider it appropriate to depart from the general rule as to costs.

28 Indeed, the current case is an example of the difficulties caused by such a construction of s 112(3)(a). While in the hearing before the Tribunal Member the solicitor for Mr Hopkins Snr sought an order for costs in favour of his client, it was only faintly pressed, and rightly so. After all, Mr Hopkins Snr failed in his primary claim against Mr Hopkins Jnr, which was that Mr Hopkins Jnr held his interest in the properties on trust for Mr Hopkins Snr, and instead was reimbursed a modest amount on account of labour, expenses, and materials. It is quite unlikely that he would have been awarded costs in his favour in a jurisdiction where the general rule is that costs follow the event, let alone a "no costs" jurisdiction such as the Tribunal. In such circumstances, limiting the scope of the term "any costs it would have ordered" to the quantum of costs, as opposed to a determination of whether a costs order ought to be made, on what basis (that is, on a "partyparty" or other basis, and on what scale), and in what amount, can lead to anomalous results, and reduce the incentive of parties to utilise the settlement provisions of the Act, which is hardly a desirable outcome. One can also see difficulties arising in the case of offers made by applicants to respondents, and in proceedings in Tribunal Lists where there is a general tendency not to order costs (such as the Anti-Discrimination and Residential Tenancy Lists).

29 Applying the multi-stage approach to the current proceeding, I, like the Tribunal Member, would proceed to assess the value of the 24 July offer on the basis that at the time that the offer was made, it is unlikely that any costs would have been ordered in favour of either party, having regard to the factors enumerated in s 109(3) of the Act. The proceeding was at an embryonic stage, having commenced on 4 June 2012, with mediation taking place on 11 July 2012. There was no basis at this time for finding that there was any litigation related misconduct on the part of any party. The claims made by Mr Hopkins Snr were not legally complex: ultimately they would be, and were determined on the evidence, which was relatively limited in compass, the matter being completed within two hearing days. While one can question the role to be played by hindsight in an assessment under s 112(3)(a), as it turned out, some of Mr Hopkins Snr's claims had merit, others did not. His primary claim to a beneficial interest in the properties failed.

30 Accordingly, standing in the shoes of the Tribunal, I am not satisfied that, at the time the 24 July offer was made, it would have been fair to make a costs order in favour of Mr Hopkins Snr. As such, the value of the 24 July offer needs to be assessed on the basis that the actual costs incurred by Mr Hopkins Snr to that date are of no relevance to the calculation. Therefore, the orders made by the Tribunal on 9 April 2013 were not more favourable to Mr Hopkins Snr than the offer, and he should pay Mr Hopkins Jnr's costs after that date. Further, while I would not necessarily agree with the Senior Member's findings that the proceeding was complex, I agree that there was no disentitling conduct on the part of Mr Hopkins Jnr which would deprive him of the benefit of the presumption. I endorse the approach adopted by the Tribunal Member with regard to the fixing of those costs, and therefore would make orders in the form sought by Mr Hopkins Jnr in that regard.

31 Further, while the enquiry to be undertaken is in some respects different, I also find, for substantially the same reasons as set out above, that the 24 July offer was an effective Calderbank offer, and that at the time that it was made, it was unreasonable for Mr Hopkins Snr to reject the offer.

32 In Hazeldene's, the Court of Appeal reaffirmed that the test of whether a Calderbank offer was effective was whether, in all of the relevant circumstances, it was unreasonable to reject the offer. The (non-exhaustive) matters that a court or tribunal should have regard to when determining whether the rejection of a Calderbank offer was unreasonable, includes the following:[15]

(a) the stage of the proceeding at which the offer was received;

(b) the time allowed to the offeree to consider the offer;

(d) the offeree's prospects of success, assessed as at the date of the offer;

(e) the clarify with which the terms of the offer were expressed;

(f) whether the offer foreshadowed an application for an indemnity costs in the event of the offeree's rejecting it.

33 In the current case, the matters referred to in (b), (e) and (f) raise no difficulties for Mr Hopkins Jnr, and the letter containing the 24 July offer explained in some detail the basis upon which the offer was formulated. The 24 July offer did involve what might be seen, in the light of the ultimate outcome of the primary hearing, a wellpitched compromise, even taking into account the costs incurred by Mr Hopkins Snr. Finally, while the 24 July offer was made at a relatively early stage of the proceeding, the evidence of Mr Hopkins Snr's solicitor was that the solicitors for the parties had engaged in correspondence for some months prior to the issue of the proceeding, and the parties had undertaken a mediation, and as such, the merits of the parties' respective positions had no doubt been exhaustively canvassed during the course of this process. In any event, it could well be argued that in some cases, it is unreasonable to reject an offer of substance made at an early stage of a proceeding, because its rejection usually leads to the expenditure of often unrecoverable legal costs after that date. It was not contended, nor could it be contended that Mr Hopkins Snr could not understand the terms of the 24 July offer, or the reasoning behind it: indeed, the Tribunal Member described Mr Hopkins Snr as 'experienced in commercial matters and astute'.[16]

34 Even if I am wrong about my preferred construction of s 112(3)(a) of the Act, and as such, it would be necessary for me to find that the 24 July offer would not have bettered the outcome achieved by Mr Hopkins Snr at trial, having regard to the costs incurred by him up to and including the date of the offer (and, by extension, the Calderbank offer might be considered ineffective), I would still be minded to make the order for costs sought by Mr Hopkins Jnr. For the effect of the 24 July offer is not the end of the inquiry. Even if Mr Hopkins Jnr was unsuccessful in attracting the benefit of the presumption in the settlement provisions of the Act, or the Calderbank offer is found to be ineffective, the determination of the question of the costs of the proceeding would still be 'at large'. It simply means that the onus of persuasion shifts to Mr Hopkins Jnr to contend that, having regard to the factors enumerated in s 109(3) of the Act, and any other matter considered relevant, it is fair that Mr Hopkins Snr ought to pay part or all of the costs of Mr Hopkins Jnr's costs of the proceeding.

35 In my view, Mr Hopkins Jnr has discharged that onus. Mr Hopkins Snr's claims to an equitable interest in the properties were not made out. While it is not entirely clear what the value of his claim with respect to these properties was, given the number of properties concerned, the value of that claim no doubt dwarfed the claims with respect to labour, materials and expenses ultimately allowed. Mr Hopkins Snr's claims against Mr Hopkins Jnr in respect of the properties were soundly rejected, and, while there is no evidence before me regarding the proportion of hearing time taken up by that issue, the Senior Member's reasons for judgment indicate that the claim for a beneficial interest in the properties was the dominant issue in the proceeding.

36 Further, even if the 24 July offer is not effective for the purpose of attracting the presumption under the settlement provisions of the Act, the authorities indicate that the making of an offer is relevant to the determination of whether it is fair to make an order for costs, including in circumstances where the offer fell short of the ultimate result, or where the settlement provisions of the Act did not otherwise apply.[17] I consider the making of the 24 July offer, and its rejection, to be a relevant matter in the current case. Even if the costs incurred by Mr Hopkins Snr are to be taken into account, and the quantum of those costs accepted, the amount of the 24 July offers fall some $1,032.43 short of the ultimate result. That is a very small sum given the early stage at which the offer was made, especially having regard to the fact that Mr Hopkins Jnr went on to incur a further $34,000 in legal costs after the 24 July offer was made, and that his position in respect of the key issue in the proceeding was ultimately vindicated.

37 I have considered the form of orders submitted by the parties after the resumed hearing. I will make the orders sought by counsel for Mr Hopkins Jnr, with one exception: the costs ordered to be paid by him with respect to the appeal will not include the costs of the resumed hearing. I shall order, consistently with the general rule in Tribunal proceedings, that there be no order as to the costs of and incidental to the resumed hearing.

[1] See [2014] VSC 319.

[2] [2013] VSC 518. This judgment was delivered after the Tribunal Member heard the costs application which is the subject of the current appeal.

[4] [2005] VSCA 298.

[5] See Dimatos v Coombes & Ors [2011] VSC 619.

[7] [2010] VSCA 38; (2010) 24 VR 240, at 248-249.

[9] [2000] VSC 163.

[12] see Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441 [13] and Martin v Fasham Johnson Pty Ltd [2007] VSC 54 at [31].

[13] [2007] VSC 117 at [20].

[15] Calderbank [1975] 3 All ER 333.

[17] see Silkwood Dream Pty Ltd v Luca (Domestic Building) [2010] VCAT 1471 at [5], Ashjam Pty Ltd v Carroll [2007] VCAT 661, at [19], and Jamieson v Benalla Golf Club Inc [2000] VCAT 2303.