The Court held that a party who successfully urged VCAT to exercise jurisdiction may nevertheless be permitted on appeal to argue that the Tribunal lacked jurisdiction under Thurin v Krongold, because constitutional jurisdictional limits cannot be conferred by consent or estoppel, and the public interest requires such issues to be ventilated. However, leave to amend was conditioned on the applicant repaying the $69,126 benefit received from the Tribunal's orders, as it would be inconsistent with the administration of justice to impugn orders while retaining their benefit. The Court declined to impose a contingent costs order requiring the applicant to pay the respondent's Tribunal costs if the jurisdictional challenge succeeded, holding this premature and noting that requiring undertakings the applicant was unwilling to give risked leaving the constitutional issue unresolved.
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