1. I accept the applicant's submission that the rules of natural justice require that the respondent be afforded a reasonable opportunity to be heard, but that the applicant is entitled now to have his proceeding determined with as much speed as the requirements of the PL Act and a proper consideration of the matters before the Tribunal permit.
2. I have concluded that the respondent has submitted no evidence as suggests it to be arguable that the parties are likely to have a joint liability of any consequence arising out of their holding of the property.
3. To the extent that the respondent has submitted that the liability of the applicant to capital gains tax may be visited upon the respondent if the applicant does not pay his capital gains tax assessment, the respondent has produced no material in support of the submission, nor has Mr Start by the Start report, suggested any arguable basis for the proposition. It is therefore rejected.
4. Given these findings, I find that there is no material as would require the Tribunal to exercise its discretion by choosing between competing but arguable considerations as to what may be regarded as just and fair in the circumstances.
5. If however there were arguable material in this respect, I also consider that given the applicant's evidence concerning his desire to meet such liabilities (if any) and of his personal financial circumstances, there is no reason to consider that any course other than disbursing the remaining net proceeds of sale would be more fair.
6. Having regard to s 98 of the VCAT Act, I consider that there is no reasonable ground for the respondent's submission to the effect that the Tribunal should delay the distribution of the net proceeds of sale further, until after the eventual identification, quantification and payment of all and any tax obligations that may fall upon either of the parties as a result of jointly owning the property. In the absence of compelling evidence, the Tribunal should determine such proceedings with speed, and leave Commonwealth revenue questions to be determined by the appropriate authorities and in the appropriate jurisdictions.
7. It follows, I find, that the defence is frivolous, vexatious, misconceived and lacking in substance within the meaning of s 75 of the VCAT Act and is struck out.

1. The applicant also makes its application in the alternative under s 78 of the VCAT Act, that provides:

78 Conduct of proceeding causing disadvantage

(1) This section applies if the Tribunal believes that a party to a proceeding is conducting a proceeding in a way that unnecessarily disadvantages another party to a proceeding by conduct such as -

...

(f) vexatiously conducting the proceeding

(2) If this section applies, the Tribunal may -

(a) order that the proceeding be dismissed or struck out, if the party causing the disadvantage is the applicant; or

(b) if the party causing the disadvantage is not the applicant -

(i) determine the proceeding in favour of the applicant and make any appropriate orders; or

(ii) order that the party causing the disadvantage be struck out of the proceeding;

1. In Victoria v Bradto Pty Ltd ("Bradto")[15] Judge Bowman VP (as he then was) observed at [67] that "a proceeding is conducted in a vexatious manner if it is conducted in a way productive of serious and unjustified trouble or harassment, or if there is conduct which is seriously and unfairly burdensome, prejudicial or damaging".
2. I find that the respondent has filed multiple prolix submissions, often unrelated to the issues in dispute, and in parts insulting to the applicant and to his advisors. In some cases, the respondent has expressed himself in terms demeaning of the Tribunal.
3. The respondent also sought orders by his affidavit sworn 24 June 2022 that senior practitioners of Heinz Law be joined to the proceeding on the grounds of alleged unconscionable conduct, that the applicant's legal advisors be joined to the proceeding on the basis of unethically being involved in a conspiracy to pervert the course of justice and disadvantage the respondent. The respondent also sought an order that the applicant be required to attend the Tribunal for examination concerning his position given, the respondent alleged, the inconsistent positions adopted by the applicant's respective legal advisors in relation to the issues in dispute. I dismissed the applications by my orders dated 17 August 2022 for lack of any evidential basis.
4. The breadth of the respondent's wide-ranging and often irrelevant submissions has doubtless added to the cost of the proceeding to the applicant. I find that this conduct, and bringing of the joinder applications has unnecessarily disadvantaged the applicant.
5. I consider that a reasonable litigant in the position of the respondent, properly advised, would not have chosen the course in the litigation that he did, and would not have resisted the applicant's request for a sale of the property and subsequent division of the net proceeds of sale. Rather, the respondent has endeavoured to prevent the due disbursement of the proceeds from the sale of the property as a means by which the due winding up of the parties' previous business affairs might be achieved.
6. How the parties' previous business affairs are wound up, in the context of what is described by the applicant as a toxic relationship, remains something entirely in the hands of the parties.
7. I find from these matters that the respondent has vexatiously conducted the proceeding within the meaning of s 78 of the VCAT Act, as interpreted in Bradto. It is another reason why the defence of the respondent must be struck out.
8. I make the orders attached.

[1] The respondent filed by email a First Submission dated 10 June 2020 and attachments, a Second Submission dated 26 June 2020 and attachments, a Third Submission dated 30 June 2020 and attachments, a Fourth Submission dated 1 July 2020 and attachments, a Fifth Submission dated 2 July 2020 and attachments, a Sixth Submission dated 15 July 2020 and attachments, a Seventh Submission dated 15 July 2020 and attachments, an Eighth Submission dated 16 July 2020, a Ninth Submission dated 23 July 2020, and a Tenth Submission dated 11 October 2020 (partly responding to the applicant's submission dated 12 June 2020).

[2] The applicant has long since abandoned his allegation in the proceeding that the respondent may have received a greater benefit from holding the property than the respondent and the order for an accounting sought as a consequence.

[3] The power of the Tribunal to appoint an expert is provided in Schedule 3 clause 7 of Schedule 3 to the Victorian Civil and Administrative Tribunal Act 1998

[4] I also then summarily dismissed the respondent's application to join the respondent's counsel and his instructor as cross-respondents to the proceeding on the ground that they were conspiring with the stakeholder to pervert the course of justice against the respondent's interests.

[5] A four-page table of legislation and other authorities relied on by the respondent refers to 30 pieces Commonwealth and Victorian statutes (including Corporations Act 2001 (Cth), Charter of Human Rights and Responsibilities Act 2006 (Vic), Crimes Act 1958 (Vic), Subdivision Act 1958 (Vic) and Instruments Act 1958 (Vic)), the Tribunal's fair hearing obligations comprised in Practice Note PN VCAT 3, the alleged torts of "co-operation, defamation and negligence", and 43 decisions including Fancourt v Mercantile Credits Pty Ltd [1985] HCA 20, Thurin v Krongold Constructions [2022] VSCA 226 and Cutts v Head [1983] EWCA Civ 8; (1984) 1 All ER 597.

[6] See for example, Melbourne Water Corporation v Vaughan Constructions Pty Ltd [2022] VSCA 241 in which the Court of Appeal dismissed an appeal against the Tribunal's striking out certain paragraphs of a respondent's amended points of defence.

[7] Dey v Victorian Railways Commissioners (1949) 78 CLR 62 (per Dixon J); Norman v Australian Red Cross Society (1998) 14 VAR 243 at [31] per DP McKenzie; Arrow International Australia Pty Ltd v Indevelco Pty Ltd [2005] VCAT 306 at [32] and [34] per Judge Bowman; Owners Corporation No. 1 PS537642N v Hickory Group Pty Ltd [2015 VCAT 1683 at [8]- [11] per Garde J; Owners Corporation PS No. 1 PS 519798G v May [2016] VCAT 399; Owners Corporation PS 542601Y v Phenix Holdings Pty Ltd [2017] VCAT 1235; Owners Corporation 1 PS538430Y v H Building Pty Ltd (Under External Administration) and Ors [2019] VCAT 1485 all per DP Aird.

[8] The applicant relies also on his affidavits sworn on 29 October 2018, 30 October 2020 and 16 August 2022.

[9] The respondent relies also on his affidavits referred to in paragraph 2 of the affidavit.

[10] Paragraph 5(a) and (d). This issue was dealt with by order 1 of the Tribunal's orders dated 20 October 2020.

[12] Consistent with his previous written submissions, relied on by him in opposing this application.

[13] Paragraph 5(d), second and sixth sub-paragraphs.

[14] Paragraph 29, second sub-paragraph.

[15] State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre)(Retail Tenancies Costs Ruling) [2006] VCAT 1813.