The Court held that where a differently constituted VCAT member determines costs following the retirement of the trial member, the costs decision-maker must engage with the substantive findings of the trial member — particularly credibility findings and findings about why parties were joined — as these are pivotal to the mandatory considerations under s 109(3) of the VCAT Act; failure to do so constitutes a House v King error. The Court also held that the discretion to extend time under s 148(5) of the VCAT Act requires a holistic assessment of all relevant factors (delay, reasons for delay, prejudice, and merits), and rejected the proposition that an adverse finding on delay alone can defeat the application without consideration of the merits. Having found error, the Court exercised its power under s 148(7) to set aside the costs order without remittal, distinguishing Leeda Projects and Concrete Construction on the basis that the Court was not making a first-instance evaluative assessment but had sufficient material to make a final determination.
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