109(3)(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

1. I dismissed the Application as an abuse of process, on the basis that XON was precluded from bringing the application by reasons of the very broad terms of the release under the Deed.
2. Given this finding that the Application was an abuse of process, I accept that this is a reason broadly in support of a decision to award costs. However, it does not automatically follow that a claim dismissed as an abuse of process gives rise to an entitlement (or even a presumption) to an award of costs. Had that been Parliament's intent, section 109 would have no doubt made this clear.
3. The application having been dismissed has benefited the Respondents. They have not had to go to further costs in participating in a final hearing, which would have required further preparations and a hearing.
4. I also note XON's submission that there was some arguable ambiguity in the scope of the Deed as it related to the Respondents in their capacity as attorneys, separate from their personal capacity in which they signed the Deed, as well as in relation to pre-death transactions conducted under the power of attorney. I also accept that the Application was made on the advice of counsel. Whilst I ultimately did not accept any of the claims made at the hearing as to why it should not be dismissed as an abuse of process, I accept that careful thought had been given and counsel's advice obtained as to the potential merit of the Application before it was filed and served.
5. Further or alternatively, I note XON's point that the same release in the Deed that precluded the Application also precludes the making of any claim for costs. I flagged this with the Respondents at the conclusion of the hearing, yet this issue was not addressed at all in their submissions. I do not consider it necessary for me determine conclusively the scope of the release under the Deed as to whether, strictly speaking, it precludes the making of this application for costs. However, in the absence of any contrary submission on this point, I accept that the present application for costs appears on its face to fall within the scope of that release in the Deed and that this is a matter that weighs against the making of an award of costs in this matter.

109(3)(D) - THE NATURE AND COMPLEXITY OF THE PROCEEDING

1. The proceedings are not complex. While the Respondents sought legal advice, their submissions as to why the application should be dismissed were relatively straight forward and the hearing took less than an hour. This is not a reason to award costs in this proceeding.

109(3)(E) - ANY OTHER MATTERS THE TRIBUNAL CONSIDERS RELEVANT

1. The Respondents have submitted that they attempted to avert the need for the hearing in their and QGG's letters to XON on 7 September 2025. They claim that they provided XON with detailed correspondence outlining why the Application was an abuse of process and attempted without success to avert the need for a hearing and the incurring of legal costs.
2. However, it is common in litigation for parties to exchange correspondence and submissions attacking the lack of merit of an opposing party's claims and to demand that an application be withdrawn. I do not consider that this provides an adequate basis for an award of costs in this matter.
3. The Respondents have also made allegations against XON embarking on a course of action that was malicious, vexatious and aimed at causing maximum damage to his siblings. I do not consider that this allegation is made out in the materials before me.
4. Finally, I note that the conduct of the Respondents at the hearing is a further relevant matter as to why I should not award them costs. The Respondents appeared at the hearing in person together with their siblings QGG and another non-party sibling. Their solicitor and another non-party sibling appeared via video. As a group, they behaved poorly. They frequently spoke over, interrupted, jeered and mocked XON and his solicitor, despite my repeated requests that they desist.

1. A submission seeking costs from XON was also filed by an interested person, QGG. Specifically, he claimed travel costs from Adelaide on the basis that he felt it was preferable to appear in person rather than via zoom. He reiterated the claims he made in connection with the hearing on 6 October 2025 as to why the Application was an abuse of process. He also referred to discussions had with XON outside the hearing room which he said demonstrated that XON was a vexatious litigant (none of which was the subject of evidence at the hearing). He claimed that XON was dishonest and he referred to various past family disputes. He also took aim at XON's solicitors.
2. The claim for costs by QGG is misconceived. The power of VCAT to award costs under section 109 of the VCAT Act is limited to ordering a party to pay all or some of the costs of another party. It does not extend to an award of costs in favour of a non-party: Markos v Banyule CC [2021] VCAT 1096 at [11]. The scope of who is deemed a party for a proceeding under the Power of Attorney Act 2014 (Vic) is set out in section 124. Unlike the wider scope under section 123 as to who is entitled to notice of the hearing, the meaning of who is a party under section 124 is relevantly limited to the principal and any attorney. It does not extend to any interested person entitled to receive notice of the hearing. As such, I have no power to make an award of costs in favour of QGG, who was not a party.
3. Further or alternatively, even if VCAT had the power to award costs in favour of QGG, I would not do so for the same reasons as set out above. I would add that the conduct of QGG was particularly poor during the hearing. Despite repeated requests and warnings on my part, he frequently interrupted the proceedings in a manner that was unhelpful, distracting and disruptive, culminating in me ultimately having to request that he leave the hearing room. Further, I consider that his claimed travel costs were unnecessary. The hearing was only listed for 60 minutes and VCAT's order dated 18 September 2025 made clear that persons could elect to appear in person or by video. I consider that it was reasonably open for QGG to have appeared by telephone or video conference, as was the case of the solicitor acting for the Respondents as well as his non-party sibling. -. As submitted by XON, his attendance in person was not necessary or required.

1. Having considered the provisions listed in section 109(3) of the VCAT Act individually in the light of the submissions received, I have not found any factors that support it being fair for the Tribunal to depart from the usual position that each party bears their own costs under section 109(1) of the VCAT Act.
2. Having considered the provisions of section 109(3) of the VCAT Act and my findings in relation to each of those provisions together and in total, I am not satisfied that, on balance, it is fair for the Tribunal to make a costs order in favour of the Respondents or QGG. As a result, their applications for costs against XON under section 109 of the VCAT Act are dismissed.

[1] (Costs) (Human Rights) [2022] VCAT 1005.

[2] [2007] VSC 117 [20].