Spiteri v Rasic (Civil Claims) (Costs) [2025] VCAT 340

1. Consequent on finalisation of proceedings initiated by homeowner Jason Spiteri against trader painter and decorator Spasoje Rasic, trading as Bonzett Painting, and a cross-application pertaining thereto, orders as to the making of an Application for costs were made.
2. By agreement, determination of this final issue was to be made on the papers. The substantive hearing ran for the three days scheduled by way of the previous Compulsory Conference.
3. Mr Spiteri and Ms Spiteri appeared as unrepresented litigants. They had not sought legal advice at any stage. Mr Rasic was represented by Mr Beaconsfield of Counsel.
4. Due to circumstances preventing the attendance of both parties' respective "expert witnesses", the parties reached agreement to dispense with reliance on those witnesses.
5. The case proceeded on the sworn evidence of the parties, various documents (including invoices from Mr Rasic), and a significant amount of unspecified, uncollated, and undated "site" photographs on which the Spiteris sought to rely.

1. The (original) application by the Spiteris claimed payment of $51,009.00 being; refund of a payment of $10,000 to Spasoje Rasic, $1,536.00 Inspection Report, $503/00 VCAT fee, $8,970.00 accommodation costs, and $30,000 for remedial works.
2. The counterclaim by Spasoje Rasic claimed payment of $15,500.00 being; materials and supplies (approximately) $3,000.00 and extras $2,500.00.

1. At the conclusion of the proceedings, oral reasons were delivered. The Spiteris' various claims for breach of contract, breach of Australian Consumer Law, and damages were unsuccessful. A finding of a payment of $10,000.00 (equating to just shy of 20% of the Spiteris' claim) was made in their favour.
2. The claim by Mr Rasic for recompense was allowed in part; his claim for the payment of $10,000.00 being off-set.
3. Accordingly, an amount of the $5767.29 was payable by the Spiteris to Mr Rasic.

1. The costs application was made by Mr Rasic through his lawyer. A response in defence was received some 3 weeks subsequent. This response appears to have been submitted beyond the time stipulated in my initial order; however, an extension of time had been granted by Deputy President Lulham. This does not give rise to any disadvantage to Mr Rasic. It does however contextualise the considerable delay between the respective filings and the date of this Order, given the timetabling (as advised to the parties at the hearing) of the long-term absence from the Tribunal by me.

1. Mr Rasic claims entitlement to a percentage of his costs. He says, it is fair and reasonable for an order in his favour because:

(a) The claims by the Spiteris have no tenable basis in fact or law;

(b) The finding of fact referrable to the $10,000.00 component goes to quantum only and does not contaminate the question of liability; and

(c) the conduct of the Spiteris in the running of the proceedings unnecessarily disadvantaged Mr Rasic. Mr Spiteri neither sought legal advice nor properly addressed substantive matters in his Points of Claim, failed to disclose a course of action, and served and filed disorganised and confusing documentation. Further, appropriate setting out could have resulted in resolution at the earlier Compulsory Conference or by way of strike out.

(d) No part of the Spiteris' claim was successful.

1. This confusion generated by the Spiteris put Mr Rasic at "an unreasonable disadvantage" with the bulk of the claimed costs being expenditure pertaining to the Spiteris' case. As a matter of fairness Mr Rasic's position should be improved by the making of a costs order.
2. Reliance is placed on section 109 of the Victorian and Civil Administrative Tribunal Act 1998 (Vic) ("The Act").

1. Section 109 of the VCAT Act relevantly provides:

(1) Subject to this Division, each party is to bear their own costs in the proceeding.

(2) At any time, the Tribunal may order that a party pay all or a specified part of the costs of another party in a proceeding.

(3) 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);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

(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;

(e) any other matter the Tribunal considers relevant.

1. The underlying principles to be considered are well-established:

(a) Prima facie each party bears their own costs;

(b) It is only appropriate to award costs if the Tribunal is satisfied it is fair to do so (i.e "just or appropriate in the circumstances"); and

(c) Regard must be had to matters stipulated in Section 109(3) of The Act and, by virtue of paragraph (e), take into account any other matters it considers relevant.

1. As to section 109(3)(a) & (b) there is no tenable basis that the Spiteris unnecessarily disadvantaged Mr Rasic by failing to comply with Tribunal directions or unreasonably delaying completion of proceedings; the matter ran for the 3 days (assessed by Senior Member Vassie at the Compulsory Conference). An examination of material on file does not establish any evidence of failure by the Spiteris to comply with directions or such like.
2. As to section 109(c) it was established the Spiteris failed to establish the majority of his claim; nonetheless their limited success, in so far as it was determined, by orders made at the conclusion of the hearing, that they had paid Mr Rasic the sum of $10,000.00, significantly eroded the value of Mr Rasic's counterclaim.
3. In respect of section 109(d), the nature and complexity of the proceedings were, like many proceedings in the Civil Claims List, relatively confined and straightforward. Although I accept the somewhat chaotic conduct of the case by the Spiteris gave rise to complexities that one would anticipate a well advised and well versed litigant could have avoided, nonetheless, as observed in Juresko v Watts & Orsq [2007] VCAT 2462 (at 18), "It is unusual to make costs order against an unrepresented litigant in the Civil Claims List, particularly against an unrepresented litigant with unrealistic expectations".
4. Finally, as to section 109(3)(e) it is accurate to remark the power to award costs is a means to deter frivolous or costly proceedings; however, the Spiteris' case, given a degree of success as a component of their claim and a substantial impact on the quantum of Mr Rasic's claim does not fall within such consideration.
5. In consideration of all the above, I decline to make any order for costs. Accordingly, the application for costs is dismissed.