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[2005] VCAT 1129
Victorian Civil and Administrative Tribunal
2005-06-07
Alfred P
Original judgment source is linked above.
1 The applicant shall pay the respondent's costs of and incidental to the hearing on 15 April 2005 fixed in the sum of $713.56, to be paid within 30 days of the date of this order.
1 This costs application is made in respect of a hearing on 15 April 2005 to consider an application under section 120 of the Victorian Civil and Administrative Tribunal Act 1998 by Whittlesea City Council to reopen the order of the Tribunal in this matter dated 15 February 2005. The Tribunal's order dated 15 February 2005 gave leave to the applicant to withdraw the application for an enforcement order, which was the subject of this proceeding, and ordered the applicant to pay the respondent's costs fixed in the sum of $1,621.10 within 30 days. It was that aspect of the order relating to costs which the applicant sought to reopen.
2 In my order dated 28 April 2005 relating to the hearing on 15 April 2005) the application to reopen the order of the Tribunal in this matter dated 15 February 2005 was dismissed for the reasons set out. Costs were reserved. The Tribunal has now received a bill of costs from Alfred P Mayuka, solicitor, on behalf of the respondent, of and incidental to the hearing on 15 April 2005 totalling $713.50.
3 I regard this case as being one where an award of costs under section 109(2) of the Victorian Civil and Administrative Tribunal Act 1998 is appropriate. I do so on the basis of the matters set out in section 109(3) of the Act. I consider it is fair to make an order for costs having regard to the way in which the applicant conducted the proceeding, which I find unnecessarily disadvantaged the respondent. The respondent received the benefit of an order for costs made by the Tribunal on 15 February 2005. In seeking to reopen the order, the respondent was placed in the position of having to appear before the Tribunal again to defend his position and the order. In seeking to reopen the Tribunal's order, the applicant was required to satisfy the Tribunal about the two matters set out in section 120(4) of the Act, namely that the applicant had a reasonable excuse for not attending or being represented at the hearing and that it is fit to revoke or vary the order. I concluded as follows:
[18] I do not consider that the applicant has satisfied either requirement of section 120(4). The applicant has not provided any reasonable excuse for not attending or being represented at the hearing on 10 January 2005 and, on the merits, there is no reason why the order should be revoked or varied.
4 Based on the facts of the case set out in my order dated 28 April 2005 and my conclusion that the applicant had failed to meet the requirements of section 120 of the Act pursuant to which the application to reopen the order was being made, I do not consider it can be said that the applicant had a tenable basis for the proceeding to reopen the case.
5 In terms of the quantum of costs they have been prepared on a party/party basis pursuant to scale "D" of the County Court rules. I consider the costs claimed are reasonable and I will order that the applicant pays the respondent's costs fixed at $713.56.
Whittlesea CC
Dimitrioski [2005] VCAT 1129