(1) Declaration that the respondent, Antony Catalano, is estopped from re-litigating the matters the subject of orders 1 to 4 of the orders of Deputy President Cremean of 20th December 2002.

(2) Declaration that the original proceedings in matter D314/2001 be reinstated in full, including the question of liability.

(3) Declaration that Antony Catalano may not in law maintain a right to claim damages for breach of the terms of settlement dated 26th September 2002.

(4) Application by Antony Catalano for the appointment of a special referee and for effective assessment of damages without determination of the question of liability dismissed.

(5) Application by Antony Catalano for damages to be assessed on account of the breach of the terms of settlement dated 26th September 2002 dismissed.

(6) Antony Catalano pay to Sabroni Pty Ltd its costs of and associated with the hearing of 1 October 2004, including the costs of relevant directions hearings. In default of agreement, such costs are to be taxed on Scale "D" of the County Court Scales.

(7) Liberty to apply.

(8) Applicant file and serve Amended Points of Claim by 5 April 2005.

(9) Respondent file and serve Amended Points of Defence and any Counterclaim by 10 May 2005.

(10) Applicant file and serve a Reply and Defence to Counterclaim by 24 May 2005.

(11) Expert reports to be filed and served by 24 May 2005.

(12) The proceeding is referred to a Compulsory Conference which will be conducted on 15 July 2005.

1 On 26 November 2004, I delivered Reasons for Decision in relation to legal arguments advanced before me concerning a failed settlement in a building dispute. At that time, effectively I reserved argument as to the orders that should flow from those Reasons for Decision. I am now required to make further rulings upon arguments concerning the specific orders to be made both in relation to the substance of the application which had been before me and in relation to costs.

2 The orders which I now set out are intended to embody the effect of the Reasons for Decision. In making these orders, I am also bearing in mind that Mr Shand QC, who was appearing for Catalano and who was in essence the applicant before me in this matter, set out in his written submissions specific orders which he was seeking. Catalano lost the application before me, and the orders which I now make should reflect not only my findings by way of declarations but also the dismissal of the orders sought by Catalano. Apart from the orders which I shall now make in respect of the substance of the matter and the issue of costs, the other orders proposed by counsel are not contentious and represent a timetable for the future disposition of the matter. Whilst they shall be included in the formal orders issued out of the Tribunal, I shall not set them out here.

3 The substantial orders which I make in this matter are as follows:-

(1) Declaration that the respondent, Antony Catalano, is estopped from re-litigating the matters the subject of orders 1 to 4 of the orders of Deputy President Cremean of 20th December 2002.

(2) Declaration that the original proceedings in matter D314/2001 be reinstated in full, including the question of liability.

(3) Declaration that Antony Catalano may not in law maintain a right to claim damages for breach of the terms of settlement dated 26th September 2002.

(4) Application by Antony Catalano for the appointment of a special referee and for effective assessment of damages without determination of the question of liability dismissed.

(5) Application by Antony Catalano for damages to be assessed on account of the breach of the terms of settlement dated 26th September 2002 dismissed.

(6) I shall reserve liberty to apply in relation to these and all orders made.

4 In relation to costs, my conclusion is as follows.

5 Despite the observations of Member Young in Australia's Country Homes Pty Ltd v Vasiliou (delivered 5 May 1999), I am not of the view that there is anything peculiar to cases in the Domestic Building List that in some way gives a successful party an entitlement to a reasonable expectation that a costs award will be made in its favour. There is nothing in the wording of s.109 of the Victorian Civil and Administrative Tribunal Act 1998 that warrants such almost automatic expectation. In this regard I prefer the approach adopted by Deputy President Macnamara in Pure Capital Investments Pty Ltd v Fasham Johnson Pty Ltd (delivered 31 October 2002). Deputy President Macnamara concluded that there is nothing in the nature of a proceeding in the Domestic Building List that would justify departure from the presumption contained in s.109 and the exceptions thereto, and I am of the same opinion. Each case, whether it be in the Domestic Building List or elsewhere, must be viewed on its merits. It may well be that cases in the Domestic Building List, because of their nature, have a propensity to fall within the exceptions contained in s.109(3), but that does not mean that each case should not be considered on its merits, or that cases in the Domestic Building List automatically fall into a different category when issues of costs arise.

6 It is well accepted that the Tribunal has a wide discretion in relation to costs pursuant to s.109. S.109(3)(e) illustrates the breadth of that discretion.

7 In my opinion, Sabroni Pty Ltd is entitled to its costs. I reject arguments that what was argued before me represented the disposal of a preliminary point, the outcome of which was of mutual benefit to the parties, or that it in some way clarified issues subsequently to be dealt with when the matter is determined on its merits. This was a discrete issue argued, and forcefully argued, on behalf of Catalano and which, if successful, effectively disposed of the issue of liability. Catalano engaged Mr Michael Shand QC, an eminent member of Her Majesty's Counsel, to argue the matter. I note, in passing, that one of the orders sought by him was an order for costs against Sabroni Pty Ltd should he succeed in this application.

8 The matter was complex. It involved issues of res judicata and issue estoppel. A large number of authorities was referred to, and legal argument took some considerable time.

9 Further, in considering relevant matters, I would point out that the matter involves a substantial amount of money, and that argument was presented in an adversarial manner typical of the courts of law. Apart from the numerous authorities referred to, detailed written submissions were presented. In short, the whole presentation of this quite technical legal argument was as one would expect in a court of law. Counsel and solicitors on each side obviously put a lot of time and effort into preparation of the legal argument in relation to this point.

10 The ruling of Deputy President Cremean was in December 2002. I note that, on that occasion, he ordered costs in favour of Catalano. Catalano was also seeking costs in relation to the application before me. He opted to pursue this aspect of the matter in order to enforce the terms of settlement and, potentially, land a knockout blow on the question of liability. He failed. In my opinion, and bearing in mind the provisions of s.109 and the matters which I have referred to above, he should pay the costs of Sabroni Pty Ltd. Bearing in the mind the quantum of the matter, Scale "D" of the County Court Scales seems to me to be appropriate.

11 Accordingly, in addition to other orders made, I order that Antony Catalano pay to Sabroni Pty Ltd its costs of and associated with the hearing of 1 October 2004, including the costs of relevant directions hearings. In default of agreement, such costs are to be taxed on Scale "D" of the County Court Scales.