1 The application by Solid Investments Australia Pty Ltd that other parties pay its costs is refused.

1 On 8 December 2004 I made orders, generally in favour of Solid Investments Australia Pty Ltd ("Solid"), concerning certain land in Eastern Beach Road, Geelong. In introducing my reasons I commented that the case involved difficult issues about the content, validity and amendment of agreements made under section 173 of the Planning and Environment Act 1987. I added that these were novel issues. I directed that if any party wished to make application for costs the party must file a written application with the tribunal. I also directed that the application be heard on the papers.

2 Solid has now made an application for costs, which is supported by a detailed written submission. Subsequently written submissions have been received from Brigalow Nominees Pty Ltd, the Greater Geelong City Council and The Brougham Pty Ltd. I have read the submissions and have taken them into account in reaching my conclusion.

3 Section 109 of the Victorian Civil and Administrative Tribunal Act 1998, which is the provision which governs costs in this proceeding, establishes the general principle that each party is to bear their own costs in a proceeding. However it also gives the power to the tribunal to order costs if it is fair to do so. Various sub-considerations are set out, such as whether a party has conducted the proceeding in a way that unnecessarily disadvantaged another party, whether a party has been responsible for unreasonably prolonging the case and the relative strengths of the claims made by the parties.

4 The power of the tribunal to order that a party pay costs is discretionary; and because it turns upon fairness the discretion is a broad, sweeping one. For this reason, and because every case is different, it is difficult to articulate clear principles that promote predictability in relation to costs, notwithstanding the obvious attraction of promoting certainty.

5 The parties referred to two decisions of mine: one in which I ordered costs (Sweetvale Pty Ltd v Minister for Planning [2004] VCAT 2000); and one in which I did not award costs (Stonnington City Council v Blue Emporium Pty Ltd [2004] VCAT 1441).

6 In the Sweetvale case I identified a number of factors that will make it "more likely" that the nature and complexity of a proceeding will make it fair to make an order as to costs. One of these was if the proceeding failed and was of a type where a party had asserted a right which it knew, or ought to have known, was tenuous. In that case that factor was an important part of the mix of factors that swung the balance in favour of an order for costs.

7 In the Blue Emporium case, in the context of an application for an enforcement order, I observe that the primary focus should generally be upon the circumstances that occur after the matter is commenced in the tribunal.

8 Having regard to the terms of section 109, I am not persuaded that this is a proceeding where it would be fair to make any order as to costs. I am not satisfied that any of the respondents conducted the proceeding in a way that unnecessarily disadvantaged another party to the proceeding. Further, none of the respondents has been responsible for unreasonably prolonging the time taken to complete the proceeding. Further, the claims of both the applicant and the respondents were legitimately pursued; and I do not accept that the substantive claims and defences advanced by the respondents had no tenable basis in fact or law. It is true that the proceeding was complex, but that will rarely be enough, in itself, to justify an order as to costs. Section 109(3)(d) requires one to consider "the nature and complexity" of the proceeding. The proceeding pursuant to section 184 of the Act was essentially a merits review proceeding; and the practice is that costs are rarely awarded in this type of proceeding; and for good reason. As for the declaration proceeding, its nature may sometimes justify an order as to costs. But it is not automatic.

9 Solid relied on my decision in Sweetvale. There are, I think, two important differences between that case and the present. In the first place, the award of costs in Sweetvale was made against an unsuccessful applicant: that is, against a person who initiated the proceeding that caused costs to be incurred. In the present case Solid seeks an order against respondents who were brought to the tribunal as a result of Solid's application. Second, I regarded the Sweetvale case as somewhat tenuous; whereas I regard the various claims put by the respondents in the present proceeding as tenable, even though I ultimately found for Solid in the proceeding. As I observed in my reasons for decision, the case raised difficult issues. This was not a case where it was obvious that one side was pursuing, or defending, a hopeless cause and, by doing so, was unnecessarily and unfairly causing legal costs to be incurred.