Icbudak v Alsa Constructions

IN THE SUPREME COURT OF VICTORIA

Not Restricted

AT MELBOURNE

COMMON LAW DIVISION
JUDICIAL REVIEW AND APPEALS LIST

S ECI 2024 06511

BETWEEN:

NESET ICBUDAK and HULYA ICBUDAK	Applicants
v
ALSA CONSTRUCTIONS & ORS (according to the attached Schedule)	Respondents

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JUDGE:	Ierodiaconou AsJ
WHERE HELD:	Melbourne
DATE OF HEARING:	1 May 2025
DATE OF RULING:	27 June 2025
CASE MAY BE CITED AS:	Icbudak v Alsa Constructions
MEDIUM NEUTRAL CITATION:	[2025] VSC 377

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APPEAL – Application for an extension of time to appeal cost orders made by the Victorian Civil and Administrative Tribunal – Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs) [2024] VCAT 595 – Applicants sought costs of rectifying alleged defects to their house – Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 – Huang v Frankston City Council [2024] VSCA 38 – Explanation for delay – Whether any prejudice has been caused by the delay – Merits of the proposed appeal – Discretionary nature of cost decisions – Francis v Wilson [2023] VSC 410 – Real prospect of success – Extension of time to appeal granted.

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APPEARANCES:	Counsel	Solicitors
The Applicants in person
For the Respondents	Mr J Twigg KC with Mr L Hogan	Ward & Co. Legal Consultants

TABLE OF CONTENTS

Material

Background

Applicable Principles

Extension of Time
Cost rulings are discretionary
Error of Law

Notice of Appeal

Analysis

Length of delay
Explanation for the delay
Applicants’ submissions
Respondents’ submissions
Analysis - explanation of delay

Whether delay has occasioned respondents to suffer prejudice
Merits of the proposed appeal
Applicants’ submissions
Respondents’ submissions
Analysis – merits of appeal

Conclusion

HER HONOUR:

Neset Icbudak and Hulya Icbudak filed a notice seeking to appeal cost orders made by the Victorian Civil and Administrative Tribunal (‘Tribunal’). Their notice of appeal was filed more than three months late. The applicants seek an extension of time. The respondents oppose the application.

Material

The applicants are self-represented. They rely on two affidavits of the first applicant, Mr Icbudak, respectively sworn on 12 December 2024 and 25 February 2025, and their outline of submissions filed on 27 March 2025.
The respondents rely on the affidavit of their solicitor, Marvin Lyle Ward, sworn on 6 March 2025, and their outline of submissions filed on 24 April 2025.

Background

The applicants issued a Tribunal proceeding seeking the costs of rectifying alleged defects to their house from the respondents (‘Tribunal proceeding’).
The respondents to the Tribunal proceeding were:
(a)the first respondent, Symmetric Homes Pty Ltd (‘Symmetric’), a building company – its director, Mr Yorenc, was also a registered builder;
(b)the second respondent, Alsa Constructions, a building company controlled by Mr Alinc;
(c)the third respondent, Mr Alinc, was a registered builder; and
(d)the fourth respondent, Mrs Alinc, Mr Yorenc’s sister.
The applicants alleged that the respondents had breached implied warranties. The applicants asserted their rights as subsequent owners per ss 8 and 9 of the Domestic Building Contracts Act 1995 (Vic).[1]
[1]See Icbudak v Symmetric Homes Pty Ltd (Building and Property) [2021] VCAT 1074 (16 September 2021) (the ‘substantive ruling’), [93].
A brief background to the claim follows.
On 2 August 2010, Symmetric agreed to construct a house for Mrs Alinc for the contract price of $379,000.00. In the building permit, Mr Alinc was named as ‘contact person’ for Symmetric, in addition to being the building practitioner engaged in the building work. Once constructed, Mr and Mrs Alinc resided at the house.[2]
[2]Ibid [4]-[5].
On 12 February 2013, Mrs Alinc sold the land containing the house to the applicants. The applicants noticed defects in the house after moving in. The applicants made complaints to Mr Yorenc, who advised them to pursue these issues with Mr and Mrs Alinc. Mr Yorenc claimed that Mr and Mrs Alinc carried out all work on the house following lock-up.[3]
[3]Ibid [8]-[11].
On 1 August 2017, the applicants commenced the Tribunal proceeding against Symmetric and Alsa Constructions.[4]
[4]Ibid [12].
On 18 December 2017, the Tribunal, on its own motion, joined Mr Alinc as the third respondent.[5]
[5]Ibid [13].
On 11 September 2018, the applicants joined Mrs Alinc as the fourth respondent.[6]
[6]Ibid [14].
On 28 March 2019, the Tribunal, on its own motion, joined Hulya Icbudak as the second applicant.[7]
[7]Ibid.
Originally, the Tribunal proceeding was fixed for hearing on 17 March 2020. Due to the applicants’ late filing of an engineer’s report however, that date was vacated.[8] Consequently, by consent on 19 May 2020, the Tribunal ordered that the applicants pay the second to fourth respondents’ costs thrown away due to the vacation of the hearing date in the sum of $7,000.00.[9] Mr Ward deposes that these orders were not complied with resulting in Magistrates’ Court enforcement proceedings.[10]
[8]Ibid [15].
[9]See exhibit ‘MLW-1’ to the affidavit of Marvin Lyle Ward sworn on 6 March 2025 (‘Ward affidavit’), 59.
[10]See the Ward affidavit, [11]; see also exhibit ‘MLW-1’ to the Ward affidavit, 11-12.
The proceeding returned before the Tribunal for substantive determination on 9 March 2021. However, the hearing was adjourned to 1 September 2021 following the late production of a video recording by the first applicant.[11]
[11]The substantive ruling, [17].
On 16 September 2021, the applicants were successful in obtaining judgment in their favour against Symmetric: see Icbudak v Symmetric Homes Pty Ltd (Building and Property) (‘substantive ruling’).[12] The Tribunal ordered Symmetric pay the applicants $117,061.70. The Tribunal struck out the applicants’ claims against Alsa Constructions and Mr and Mrs Alinc.[13]
[12]Ibid (n 1).
[13]Ibid [165].
In the substantive ruling, the Tribunal found evidence given by Mr and Mrs Alinc to be untruthful.[14] The Tribunal held:
[14]Ibid [70], [88].
Mr Icbudak’s gave his evidence in a measured way without overstatement, accepting my direction as to what was and what was not relevant. I found him to be a cooperative and a believable witness.
In contrast, the evidence of each of the three lay witnesses for the Respondents raises serious concerns.
Although all of the objective evidence clearly points to the House having been constructed by the Builder, the evidence of Mr Yorenc and Mr and Mrs Alinc was that the Builder only constructed it to lock-up stage and that, thereafter, construction was completed by Mrs Alinc as an owner-builder. I do not accept that evidence.
First, it is inconsistent with all of the relevant documents. There is no evidence whatsoever to support the partial construction allegation, apart from the oral evidence of these three persons. All of the documentation is against it. If what they said was true, there would have been some supporting documentation, but none was produced. They would also have committed a number of offences under the Building Act 1983 (“the Building Act”).
Secondly, I am satisfied that all three of them gave some false evidence. The difficulty then is deciding what, if anything, was true in the evidence they gave. This is particularly so as the story shifted and changed as they gave their evidence.[15]
The … [applicants’] evidence was factual and substantially uncontested. Mr Yorenc and Mr and Mrs Alinc gave slightly different versions of a common story which are not only internally inconsistent but inconsistent with the available documentary evidence, which tells a different story. Given the reservations expressed above concerning credibility, I must prefer the documents to the story told by the Respondents’ three witnesses.
There was no evidence produced by Mr or Mrs Alinc of them paying any tradesmen, no emails or other communications passing between either of them and any tradesmen, no documentation of the alleged “hand over”, and certainly no communication between Mrs Alinc and the Relevant Building Surveyor to the effect that she had taken over the job.
Why the three of them are seeking to move responsibility for the defective work from the insured Builder to an uninsured woman with serious health issues and unknown financial resources does not appear from the evidence. However, this is protective legislation intended by Parliament to protect persons such as the … [applicants] and it is not to be avoided by people making up a story like this without any objective evidence to support it.
I am satisfied that the Builder constructed the House, using the services of Mr Alinc as the registered building practitioner. That is what the documentary evidence establishes and I find that is what occurred.[16]
[15]Ibid [34]-[38].
[16]Ibid [89]-[92].
I shall refer to the findings above regarding the respondents as ‘the credibility findings’.
Concerning costs, the Tribunal’s substantive ruling held:
When I adjourned the hearing of this proceeding on 10 March 2021, [the sitting Tribunal Member] … informed the parties that, because of … [their] imminent retirement, any submissions on costs would also be heard when the hearing resumed.
The … [applicants] provided some evidence of the costs that they have incurred, being legal fees, expert witnesses and Tribunal fees. Mr Reid [counsel for Symmetric] has persuaded me that that it is not a practical course to deal with the Applicants cost in this order, so I will reserve them.
The proceeding against the second, third and fourth respondents will be struck out. I was proposing to make no order as to their costs, because the only reason they are parties to this proceeding is that Mr and Mrs Alinc falsely claimed that they constructed part of the House and Alsa Constructions staff attended to some of the rectification work. However, it may be that Mr Reid wishes to make some submissions about that and I ought to give him the opportunity to do so, so those costs will be reserved as well.
There will be an order that the First Respondent pay to the Applicants $117,061.70. The proceeding against the second, third and fourth respondents will be struck out. Costs will be reserved.[17]
[17]Ibid [162]-[165] (emphasis added).
I shall refer to the findings in bold above as ‘the joinder findings’.
Symmetric initially failed to pay the applicants the amount ordered in the substantive ruling. The applicants consequently caused statutory demands to be served on Symmetric.[18] The statutory demands were set aside by orders of this Court on 6 June 2022 and 24 May 2023.[19]
[18]Ward affidavit, [20]-[21]; see also, the applicants’ outline of submissions dated 27 March 2025 (the ‘applicants’ outline of submissions’), [11]-[14] .
[19]Exhibit ‘MLW-1’ to the Ward affidavit, 20-22.
On 10 December 2021, out of time, Symmetric filed a notice of appeal in this Court concerning the substantive ruling (‘2021 notice of appeal’).[20] On 13 September 2023, the appeal was discontinued by consent.[21]
[20]Ward affidavit, [16].
[21]Exhibit ‘MLW-1’ to the Ward affidavit, 15-19.
On 5 February 2025, the applicants issued a further statutory demand on Symmetric in respect of their costs, in the sum of $115,800.00. On 26 February 2025, Symmetric made payment.[22]
[22]Ward affidavit, [42]; see also, applicants’ outline of submissions, [16]. Note: neither the applicants’ further statutory demand, nor Symmetric payment was in evidence.
By this stage, the Tribunal Member who heard and determined the substantive ruling had retired. Therefore, another Tribunal Member considered the pending cost orders consequential to the substantive ruling.
On 28 November 2023, the Tribunal made timetabling orders providing for the parties to file affidavits and written submissions in support of their respective cost applications. The costs ruling was to be made on the papers (‘28 Nov 23 costs directions’).
On 6 June 2024, the applicants initiated proceedings against Symmetric in the Costs Court, seeking to have their costs assessed following Symmetric’s 2021 notice of appeal. It is deposed that solicitors, Ward & Co. Legal Consultants (‘Ward & Co’) did not act for Symmetric during the Costs Court proceeding.[23]
[23]Ward affidavit, [39].
The Tribunal made a cost ruling on 3 July 2024, published to the parties on 11 July 2024: Icbudak v Symmetric Homes Pty Ltd (Building and Property) (Costs).[24] The cost ruling states:
In his affidavit dated 5 February 2024, [the first applicant] … deposes to a number of matters including the confusion he experienced when he purchased the property as to the identity of the builder and which building company carried out the work. He also deposes to matters concerning the vendor (fourth respondent) who he says was joined as a party to the proceeding because of untruthful or misleading allegations she made.
It is clear to me that [the first applicant] … has not received any legal assistance in preparing the affidavit and it does not contain any depositions which directly relate to or assist with the applicants’ costs application against the respondents.
Nor do the applicants specifically refer to any of the factors in … [s 109(3) of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (‘Tribunal Act’)] in support of their application for costs. However, I infer from their submissions and the [first applicants’] … affidavit that they consider their claim against the respondents was difficult and complex in that they had a claim for numerous building defects which required extensive lay evidence and expert opinion, the hearing ran for 6 days and there was confusion about the identity of the builder and which entity carried out the building work.[25]
[24][2024] VCAT 595 (3 July 2024).
[25]Ibid [13]-[16].
The Tribunal refused the applicants’ costs against the second to fourth respondents and allowed the second to fourth respondents’ application for costs against the applicants.
On 3 July 2024, the Tribunal made the following costs orders (‘cost orders’):
1. The first respondent must pay the applicants’ costs of and incidental to the proceeding to be taxed in default of agreement by the Victorian Costs Court on a standard basis in accordance with the County Court Scale.
2. The applicants must pay the second, third and fourth respondents’ costs of and incidental to the proceeding to be taxed in default of agreement by the Victorian Costs Court on a standard basis in accordance with the County Court Scale.
3. The applicant’s application for costs against the second to fourth respondents is dismissed.[26]

Applicable Principles

[26]Ibid [1]-[3] of the Tribunal’s orders.

Extension of Time

Per s 148(2)(a) of the Tribunal Act, an appeal from orders of the Tribunal must be filed within 28 days after the order was made. Per s 148(5) of the Tribunal Act, the Court may extend time.
The ‘discretion to extend time is given for the sole purpose of enabling the Court … to do justice between the parties.’[27] An object of statutory time limits is to achieve finality in litigation.[28]
[27]Gallo v Dawson [1990] 64 ALJR 458, 459 (‘Gallo’).
[28]Ibid.
In Huang v Frankston City Council,[29] Beach and Niall JJA (as his Honour then was), outlined four factors to be considered in determining whether to extend time, namely:
(a)the length of the applicant’s delay;
(b)explanation for delay;
(c)whether the delay has occasioned any other party to suffer prejudice; and
(d)the merits of the proposed appeal.[30]
[29][2024] VSCA 38.
[30]Ibid [53].
cx If the proposed appeal is devoid of merit, then it would be futile to grant an extension of time.[31] Generally, the proposed appeal should have a real prospect of success for an extension of time to be granted.[32]
[31]Ibid [56].
[32]Auslong Development Management Pty Ltd v Morey [2021] VSC 250, [211].
In considering whether an extension of time should be granted, Kyrou J (as his Honour then was), stated the four above factors are not exhaustive and other matters may be relevant.[33] These include ‘whether the delay was intentional or contumelious, or merely the result of a bona fide mistake or blunder, and whether the delay was that of the litigant or its legal representatives’.[34]
[33]Kuek v Devflan Pty Ltd [2012] VSC 571, [25].
[34]Ibid [26].

Cost rulings are discretionary

A discretionary judgment will only be overturned if error is demonstrated. An error in exercising the discretion must be identified. Such an error includes acting on the wrong principle, mistaking facts, not taking into account a material consideration or taking into account an irrelevant consideration or if, upon the facts, the result is ‘unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance.’[35]
[35]House v TheKing (1936) 55 CLR 499, 504-505.
As Gorton J stated in Francis v Wilson:[36]
… a decision whether or not to order costs and if so the basis upon which to order the costs involves the exercise of an ‘absolute and unfettered discretion’ and it is only in exceptional cases that leave to appeal will be granted from that type of order.[37]
[36][2023] VSC 410 (‘Wilson’). See also, Commissioner of the Australian Federal Police v Opal Storm Pty Ltd [2018] VSCA 301, [73].
[37]Wilson, [21].
The reason that appeals from cost orders are treated as exceptional cases is primarily because the ‘trial judge is almost always best placed to assess in whose favour and to what extent the discretion should be exercised.’[38] As described above, the circumstances here are unusual. The cost orders were not made by the Tribunal Member who heard the trial.
[38]Cargill Australia v Viterra Malt [2023] VSCA 301 (‘Cargill’), [63]. See also, Gallo, 459.

Error of Law

Per s 148(1) of the Tribunal Act, a party may appeal to this Court on a question of law from an order of the Tribunal. This Court’s ‘role is purely supervisory, limited to ensuring that the decision arrived at on the merits was made in accordance with law.’[39]
[39]McSteen v Architects Registration Board of Victoria [2018] VSCA 96, [5].
In Coliban Heights Pty Ltd v Citisolar Vic Pty Ltd,[40] the Court of Appeal stated that:
[t]he ‘question of law’ to which s 148 refers founds the jurisdiction of the Court and constitutes the subject matter of the appeal itself. For that reason, questions of law must be clearly stated and not simply ascertained by reference to the grounds of appeal.[41]
[40][2018] VSCA 191.
[41]Ibid [38].
Nevertheless,
… fairness requires that the Court will not read a notice of appeal … narrowly and will address questions of law that are identified in the document stating grounds of appeal and perhaps also from surrounding circumstances. Even where a notice of appeal or originating process fails altogether to state questions of law, it is therefore still necessary to decide whether questions of law are none the less articulated by reference to the document as a whole.[42]
[42]Ibid [39].
A notice of appeal must state the question of law upon which the proposed appeal is brought and state concisely the proposed grounds of appeal: r 4.06(1)(b)(v) and (vi) of the Supreme Court (Miscellaneous Civil Proceedings) Rules 2018 (Vic) (‘Miscellaneous Rules’). An application for an extension of time may be dismissed if the notice of appeal does not sufficiently identify a question of law, or if refusing leave would impose no substantial injustice on the applicant: r 4.08(8)(a) and (b) of the Miscellaneous Rules.

Per s 148(2A) of the Tribunal Act, leave to appeal may only be granted if the appeal has a real prospect of success.
Merits review is not permissible per s 148 of the Tribunal Act.[43]
[43]Secretary, Department of Justice and Regulation v Zhong [2017] VSCA 18, [54].
The Tribunal must give reasons per s 117 of the Tribunal Act,[44] and those reasons ‘must explain the actual path of reasoning in sufficient detail to enable [the appeal judge] to see whether its final order in the proceedings did or did not involve any error of law.’[45] It is an error of law not to give adequate reasons. I adopt the following principles given by Kyrou J (as his Honour was then) in Secretary to the Department of Justice v Yee (‘Yee’):[46]
In my opinion, a failure by the … [Tribunal] to comply with its obligation in s 117(1) of the … [Tribunal] Act to provide reasons for a final order, constitutes an error of law.
In the context of judicial reasons for decision, it has been said that the reasons must disclose ‘the route that led to the answer’, ‘how or why the conclusion was reached’, ‘the process of reasoning’ or ‘the path of reasoning’.
Thus, for example, in Franklin v Ubaldi Foods Pty Ltd, Ashley JA, with whom Warren CJ and Nettle JA agreed, said:
Reasons must be such as reveal – although in a particular case it may be by necessary inference – the path of reasoning which leads to the ultimate conclusion. If reasons fail in that respect, they will not enable the losing party to know why the case was lost, they will tend to frustrate a right of appeal, and their inadequacy will in such circumstances constitute an error of law.[47]
[44]Coliban Heights Pty Ltd v Citisolar Vic Pty Ltd [2017] VSC 751, [82]-[85].
[45]Ibid [85].
[46][2012] VSC 447 (‘Yee’).
[47]Ibid [90]-[92] (citations omitted).
Per s 98(1)(a) of the Tribunal Act, the Tribunal is bound by the rules of natural justice. It is a breach of natural justice and an error of law not to consider a party’s case and the evidence presented by them.[48] This is not to say that every single point raised by a party must be considered. Rather, the Tribunal must engage with the substance of the case in a meaningful way. As stated in Yee:
In determining whether the … [Tribunal’s] reasons are adequate, the Court does not scrutinise those reasons over-zealously with a view to finding error. Nor does the Court expect the … [Tribunal] to address every issue raised in the proceeding. The reference to ‘material questions of fact’ in s 117(5) of the … [Tribunal] Act is to factual matters that affected the … [Tribunal’s] findings or conclusions. Accordingly, under s 117(5), it is enough for the … [Tribunal] to make findings on the facts upon which its decision turns and to explain the logic of the decision. The … [Tribunal] is also expected to set out the law that it has applied in reaching its decision.[49]
[48]Dranichnikov v Minister for Immigration and Multicultural Affairs (2003) 197 ALR 389, [24] (Gummow and Callinan JJ). In the Tribunal’s context, see eg, EXW v Mulroney [2022] VSC 524, [69].
[49]Yee, [96].
It is an error of law if the Tribunal fails to apply the correct legal test.[50]
[50]Cosmopolitan Hotel (Vic) Pty Ltd v Crown Melbourne Ltd (2014) 45 VR 771, [49] (Warren CJ), [167] (Whelan JA, Santamaria JA agreeing), judgment reversed on appeal on different grounds in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 333 ALR 384. See also, Marshall v Emergency Services Superannuation Board (No 2) [2022] VSC 122, [105] (Cavanough J).

Notice of Appeal

The applicants identify the following questions of law, and grounds for appeal:
QUESTION OF LAW:
(a) Negligence: Did the Tribunal Member err by not considering the negligence of Respondents 2, 3, and 4, both prior to and during the … [Tribunal] hearing?
(b) Failure to Address False Information: Did the Tribunal Member err in failing to take into account Senior Member Walker’s orders regarding the false information provided by all Respondents during the six-day hearing?
(c) Self-Representation and Lack of Legal Knowledge: Did the Tribunal Member err by not considering the applicant’s self-represented status and lack of knowledge regarding Section 109 of the relevant Act?
(d)Failure to Consider Real Facts and Reasons for Applicant’s Failure: Did the Tribunal Member err by not considering the real facts and reasons underlying the applicant’s failure to succeed against Respondents 2, 3, and 4?
(e) Error in Considering Liability Offers: Did the Tribunal Member err by considering the Calder Bank offers made by all Respondents (admitting liability) during the court proceedings?
(f) Error in Considering Adjourned Hearing Date: Did the Tribunal Member err by considering the original hearing date in favor of the Respondents, which regardless was going to be adjourned due to the pandemic, despite the fact that all court hearings were canceled from March 17, 2020, onwards.
(g) Failure to Consider False Statements and Negligence: Did the Tribunal Member err by not taking into account the false statements and negligence of Respondents 2, 3, and 4, both during the six-day hearing and prior to the hearing?
(h) Error in Favoring the Fourth Respondent: Did the Tribunal Member err by making orders in favor of the Fourth Respondent, who had inserted herself into the proceedings by Making false allegations in an attempt to deflect blame from the two builders that caused me significant financial and emotional distress as I was forced to defend myself against her and others baseless claims.
(i) Failure to Consider Respondents' Work and Involvement: Did the Tribunal Member err by failing to consider the work performed by Respondents 2 and 3, as well as the involvement of Alsa Construction and its name appearing on all relevant documentation concerning the property prior to the … [Tribunal] proceedings?
THE PROPOSED GROUNDS RELIED UPON ARE:
(a) The Tribunal member erred in their decision by failing to take into account the fact that I was self-represented at the time of the hearing and experiencing a severe mental breakdown caused by the respondents’ ongoing negligence throughout the course of the case and 2nd and 3rd respondents trying to fix the defects when the house was still under building warranty.
(b) The Tribunal member overlooked the fact that no orders were made against the respondents despite their repeated amendments to their witness statements and points of claim, as well as their negligent prior to the hearing and during the hearing.
(c) The Tribunal erred by considering the orders that were made against the 2nd , 3rd and 4th respondents by Senior Walker to be struck but not considering his findings regarding their involvement and false allegations.[51]
[51]See the applicants’ notice of appeal filed on 27 November 2024.
Questions (b), (g) and (h) in the notice of appeal refer to a failure to address or consider ‘false information’, ‘false statements’ and ‘false allegations’. I understand this to be a reference to the credibility findings and joinder findings referred to in the Tribunal’s substantive ruling. Ground (c) appears to refer to the credibility findings and joinder findings.
The respondents say no question and error of law has been identified in the notice of appeal. I reject this contention.
The applicants are self-represented. Reading the notice of appeal as a whole, and considering the affidavit sworn by the first applicant on 11 December 2024, two questions of law may be distilled:
(a)did the Tribunal err by failing to consider the applicants’ submissions on the credibility findings and joinder findings?
(b)did the Tribunal fail to apply s 109 of the Tribunal Act when rejecting the applicants’ cost claims against the second to fourth respondents?

Analysis

Length of delay

The applicants filed their notice of appeal on 27 November 2024, 139 days after receipt of the Tribunal’s orders. Accordingly, the applicants’ delay exceeds three months (111 days).
The significant delay weighs against granting the extension of time.

Explanation for the delay

Applicants’ submissions

The first applicant’s second affidavit provides seven reasons for the delay. I outline two that are relevant to the application.
First, he was overseas when the Tribunal made the costs order, and he did not receive proper notice in time to prepare an appeal. The first applicant submitted the appeal was brought out of time as a consequence of his trip to Turkey from 15 May 2024 to 15 August 2024 (inclusive) to care for his infirm mother.[52] In oral submissions, he stated that the second applicant, was overseas in May.[53] He said that he has run the case and she would not be in a position to assist and that she is only a party to the proceeding because her name is on the property title.[54] The first applicant submitted that the second applicant departed for and left Turkey ‘[a] bit earlier [than him]’.[55] The first applicant also alleges that, as a consequence of spending most of his time ‘in the village’,[56] he did not have regular email access and did not have ‘proper notice [of the costs order]’. Further, he says he could not have filed an appeal in time as salient material was left in Australia.[57] Although the cost proceeding was ongoing, he had legal representation and did not need to appear himself. He joined a Costs Court mediation via Zoom ‘just to see … [what was] going on’.[58]
[52]Transcript of Proceedings, Icbudak & Anor v Alsa Constructions & Ors (S ECI 2024 06511, Ierodiaconou AsJ, 1 May 2025), 28.16-17, (’T’); see also the affidavit of Neset Icbudak sworn on 25 February 2025 (‘second Icbudak affidavit’), [3c]. It is disposed that Mr Icbudak departed for Turkey on 14 May 2024, creating a discrepancy.
[53]T, 12.21.
[54]Ibid 31.7-10; 2.24-30.
[55]Ibid 28.17.
[56]Ibid 12.30-31.
[57]Second Icbudak affidavit, [3(d)]; see also, T, 12.27-29.
[58]T, 30.24-26.
Second, he suffered significant mental stress, which he says prevented him from filing a notice of appeal sooner.^[59] The first applicant submitted that the combination of having to balance the demands of seeking his costs from Symmetric per paragraph 1 of the costs orders, dealing with his mother’s issues overseas and her poor health on his return to Australia, and having to prepare for his daughter’s wedding caused him significant mental stress.[60] He referred to the stress and time taken up by Costs Court proceedings and Magistrates’ Court enforcement proceedings.[61] The first applicant said the dispute has been ongoing for ten years.[62]
[59]Second Icbudak affidavit, [3(d)].
[60]T, 13.2-10.
[61]Ibid 8.26-31; 9.1-7.
[62]Ibid 2.22.
In oral submissions, the first applicant referred to the catalyst for filing the notice of appeal as a letter dated 22 November 2024 from Ward & Co demanding $333,165.37 for their clients’ costs and disbursements (‘Ward 22 Nov 24 demand letter’).[63]
[63]Second Icbudak affidavit [3](e).

Respondents’ submissions

The respondents say there is no real explanation for the delay.
Firstly, the applicants failed to adequately address their delay across the relevant period being from 11 July 2024 (the date the Tribunal’s orders and reasons were delivered) to 27 November 2024 (the applicants’ notice of appeal filing date).[64]
[64]See the respondents’ outline of submissions dated 24 April 2025, [49]-[53] (‘respondents’ outline of submissions’).
Secondly, they reject the applicants’ submission of unavailability due to being overseas. The respondents say they were aware that the applicants had commenced a Costs Court proceeding against another party in the Tribunal proceeding (Symmetric) because they were incorrectly served with a summons for taxation listing the proceeding for mediation on 19 July 2024. The mediation on 19 July 2024 was attended by the first applicant while the applicants were allegedly in Turkey.[65]
[65]Ward affidavit, [38]-[42]; see also the respondents’ outline of submissions [48(g)]-[49].
Further, the first applicant had email access as he was in correspondence with the Tribunal on 27 May 2024, and it could be inferred that the Tribunal’s costs orders were available to him while he was abroad.[66]
[66]The respondents’ outline of submissions [54(b)].
Thirdly, the applicants have not evidenced the duration or the degree of care the first applicant’s infirm mother required, and the degree to which this may have prohibited the timely filing of an appeal.[67]
[67]Ibid [54(a)].
Fourthly, the only evidence of the delay concerns the first applicant. The second applicant has provided no explanation at all for the delays.[68]
[68]Ibid [49].
Fifthly, the applicants only decided to appeal after receiving the Ward 22 Nov 24 demand letter and receiving the bill of costs.[69]
[69]Ibid [48(c)].
Sixthly, the first applicant simply chose to prioritise other matters over the appeal. He was otherwise capable of filing in time, and that inference may be drawn because he filed the notice of appeal a week after receiving the Ward 22 Nov 24 demand letter. He has not said he was unaware of the cost orders or his appeal rights.[70]
[70]T, 20.11-13; 20.16-18; see also the respondents’ outline of submissions, [52].

Analysis - explanation of delay

Firstly, I accept the applicants’ submission that the Ward 22 Nov 24 demand letter was the catalyst for the appeal.
Although the Ward 22 Nov 24 demand letter is not in evidence, both the applicants and respondents reference it. The respondents claim without prejudice privilege over it.[71]
[71]Ward affidavit, [31].
In the Tribunal proceeding, Ward & Co were solicitors for the second to fourth respondents but regularly wrote on behalf of all respondents, although Symmetric was separately represented.[72]
[72]See exhibit ‘MLW-1’ to the Ward affidavit, 65, 68, 71, 74, 77, 81, 85, 89, 93.
I reject the respondents’ submission that the bill of costs was the catalyst for the appeal.[73] On the material before me, Ward & Co sent a draft bill of costs to the applicants under the cover of a letter dated 3 December 2024.[74] That post-dates the filing of the appeal. The letter is stated to be an open offer of compromise. It asserts an entitlement of $287,638.55 relying on the draft bill, and offers to settle for $230,110.84.[75] As a matter of completeness, I should add that although the notice of appeal pre-dates the draft bill, it appears that the applicants only served it after receiving the draft bill of costs. The notice of appeal was served on 13 December 2024.[76]
[73]T, 17.14-16.
[74]See exhibit ‘MLW-1’ to the Ward affidavit, 185-302.
[75]Ibid 185-186.
[76]Ibid 303.
Secondly, I accept the first applicant’s submission that he, rather than the second applicant, his wife, effectively managed the litigation. There is no contrary evidence from her.
Thirdly, I accept the first applicant’s submission that he was mentally stressed and distracted by the litigation in the Costs Court and Magistrates’ Court, and other matters such as his mother’s health and his daughter’s wedding. However, I accord this factor little weight given there is no medical evidence to suggest that he was unable to file the appeal, and he was evidently involved in other litigation. It appears that he either did not prioritise the notice of appeal, or did not consider it until he received the Ward 22 Nov 24 demand letter.
Fourthly, I accept the first applicant was overseas for some of the period between the cost orders and the appeal being filed, but as he says, not the whole of the period. It does not explain the delay, particularly given that he had electronic access at least from time to time, as evidenced by him joining the Costs Court mediation.
Fifthly, I accept the first applicant’s evidence, uncontradicted, that he did not receive the orders until 25 February 2025. The first applicant, however, was still within time to file his notice of appeal at that point. He says that it delayed his ability to prepare and file the appeal. The delay from the date of the orders until he received them was less than two weeks.[77] On the other hand, the appeal was more than three months out of time.
[77]Second Icbudak affidavit, [2].
In conclusion, the explanation for the delay in filing the appeal weighs against granting the extension of time. The timing of the appeal is primarily explained as being responsive to the Ward 22 Nov 24 demand letter.

Whether delay has occasioned respondents to suffer prejudice

The first applicant submits that a ruling against an extension of time would be highly prejudicial to the applicants as they expect to lose their family home.[78] However, the question here is whether the delay has prejudiced the respondents. There is general prejudice by delay. Other than that, the respondents have not identified any prejudice that a costs order could not meet.
[78]T, 12.18-20.
I assess this factor neutrally.

Merits of the proposed appeal

Applicants’ submissions

The first applicant submits that the applicants have a very good case. All the documents referred to Alsa Constructions. He was successful in the Tribunal.[79] The costs order against the applicants was unfair and did not consider the orders made as a consequence of the substantive ruling in the proceeding.[80]
[79]Ibid 13.12-15; 13.24-26.
[80]Ibid 14.9-10.
In his first affidavit at paragraphs 13 to 14, the first applicant submits that the cost orders were unfair and unreasonable for the following reasons.
First, the Tribunal failed to take into account the ‘real fact’ about the second to fourth respondents, that they were the primary parties responsible for the defects and issues leading to the proceeding, and that the first respondent used a family member’s building licence to carry out work on the property.[81]
[81]See the affidavit of Neset Icbudak sworn on 11 December 2024, [13]-[14].
Second, the third respondent, Mr Alinc, never referred him to Symmetric to resolve defects, although his company, Alsa Constructions, was the principal builder.[82]
[82]Ibid [14(b)].
Third, due to the negligence and action of all respondents he incurred over $220,000.00 in costs in challenging a Supreme Court appeal by Symmetric that was later withdrawn.[83]
[83]Ibid [14(c)].
Fourth, the third respondent should have been aware that any repairs made while the building warranty was still in effect would invalidate it.[84]
[84]Ibid [14(d)].
Fifth, the fourth respondent entered the proceedings midway, making baseless claims.[85]
[85]Ibid [14(e)].
Sixth, the Tribunal Member did not take into account earlier orders made on 16 September 2021.[86]
[86]Ibid [14(f)].
Seventh, key portions of evidence were not properly considered, and the respondents engaged in tactics to avoid accountability for their actions.[87]
[87]Ibid [14(g)].
Eighth, the respondents provided false and inconsistent evidence, as addressed in the Tribunal’s substantive ruling.[88]
[88]Ibid [14(h)].
Ninth, the third respondent instructed him not to involve Symmetric in addressing the defects, suggesting that he, not Symmetric, was the primary builder responsible.[89]
[89]Ibid [14(i)].
Tenth, the fourth respondent intervened in the proceedings, seeking to shift blame away from the true parties responsible for the defects.[90]
[90]Ibid [14(j)].
Eleventh, from the outset, he knew Alsa Construction had built several properties in the area, including the property in question.[91]
[91]Ibid [14(k)].
Twelfth, the third respondent’s involvement in attempting to repair defects after selling the property further confirms its negligence. The first applicant filed an application with Domestic Building Resolution Victoria on 9 May 2017 to ensure defects were addressed within the building warranty period.[92]
[92]Ibid [14(i)-(m)].

Thirteenth, throughout the case, the respondents failed to provide proper documentation to support their witness statements and affidavits.[93]
[93]Ibid [14(n)].
Fourteenth, there was substantial evidence that Alsa Constructions was involved in the construction of the property, despite their claims to the contrary.[94]
[94]Ibid [14(o)].
Fifteenth, the respondents did not call several individuals directly involved in the construction and repair of the property.[95]
[95]Ibid [14(p)].

Respondents’ submissions

The respondents say there is no merit to the appeal. Their key submissions follow.
First, a costs order is a discretionary decision and it must be demonstrated that the Tribunal erred in exercising the discretion. There must be something exceptional to grant leave from a costs order.^[96] Here, there is nothing exceptional that would justify the grant of leave to appeal an order for costs.
[96]Cargill, [62]-[63].
Second, the applicants did not file any material opposing the costs orders. By their submissions dated 1 February 2024, the respondents claimed costs against the applicants. The 28 Nov 23 costs directions required the applicants to file responsive material by 1 March 2024 but they did not.[97]
[97]The respondents’ outline of submissions, [34]-[37].
Third, the cost ruling refers to the respondents' cost submissions dated 1 February 2024.[98]
[98]T, 24.4-10.
Fourth, the cost ruling addresses s 109 of the Tribunal Act.[99]
[99]Ibid 26.19-24.

Analysis – merits of appeal

Subject to div 8 of the Tribunal Act, each party in the Tribunal bears their own costs of the proceeding: s 109(1) of the Tribunal Act. As will be recalled in the joinder finding, it was indicated that the Tribunal was inclined to order that as between the applicants and second to fourth respondents, they bear their own costs.
In the cost ruling, the applicants were ordered to pay the second to fourth respondents’ costs. The Tribunal has power to order a party pay some or all of another party’s costs in the proceeding: s 109(2) of the Tribunal Act. If making such an order the ultimate question is whether it is fair to do so having regard to the following factors in s 109(3) of the Tribunal Act:
109 Power to award costs
…
(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.
In response to the 28 Nov 23 costs directions, the applicants filed a cost submission dated 30 January 2024.[100] In that submission, the applicants referred to an earlier cost submission dated 30 September 2021 (‘applicants’ first cost submission’).[101] The applicants’ first cost submission sought costs of approximately $60,715.72 against all respondents. The applicants also filed an affidavit sworn on 5 February 2024.[102] Although the applicants did not file any material in reply to the respondents’ submissions,[103] it is evident from their submissions of 30 September 2021 and 30 January 2024 that they sought costs against all respondents.[104] Clearly, the parties were in dispute about liability for costs.
[100]See exhibit ‘MLW-1’ to the Ward affidavit, 131.
[101]Ibid 124.
[102]Ibid 126-130.
[103]Cost ruling, [32].
[104]See exhibit ‘MLW-1’ to the Ward affidavit, 124, 131.
The cost ruling refers to the applicants’ claim for costs against the respondents.[105] The Tribunal’s reasons refer to the two cost submissions filed by the applicants, together with their affidavit.[106]
[105]Cost ruling, [10].
[106]Cost ruling, [5]. Noting that there appears to be a typographical error as the submissions are referred to as dated 31 September 2024.
The Tribunal held:
The applicants were unsuccessful in their claims against the second to fourth respondents and for the above reasons, I will dismiss the applicants’ application for costs against them.[107]
[107]Cost ruling, [29].
The applicants seek to appeal the cost orders against them. I am satisfied that the applicants have a real prospect of success regarding their proposed appeal for the following reasons.
Firstly, there is a real prospect that the applicants will establish that the Tribunal Member failed to consider their submissions regarding the credibility findings and the joinder findings. The Tribunal’s reasons do not address the credibility findings and the joinder findings when referring to the applicants’ cost application. Further, although the Tribunal considered 109(3)(a) regarding the second to fourth respondents’ application for costs, it did not address the credibility findings and joinder findings in that evaluation.
Secondly, there is a real prospect that the applicants will establish that the Tribunal failed to apply s 109(2) and (3) of the Tribunal Act to their submissions for costs against the second to fourth respondents in the Tribunal proceeding. The applicants’ cost submissions relied upon the credibility findings and joinder findings, amongst other things.[108] The cost ruling notes that the applicants (and second to fourth respondents) based their claims for costs on one or more of s 109(3)(a),(b),(c),(d) and (e) of the Tribunal Act.[109] However, there only appears to be consideration of s 109(3)(d), not s 109(3)(a) of the Tribunal Act.[110]
[108]Exhibit ‘MLW-1’ to the Ward affidavit, 131 [4]-[5], [10]; 126-130 [34a], [35d].
[109]Cost ruling, [8].
[110]Ibid, [44].
The respondents emphasised that the applicants did not file a submission in reply to the respondents’ cost application in the Tribunal. That misses the point. The applicants’ key grievance is that the Tribunal did not consider their own costs application.
The merits of the appeal weigh heavily in favour of granting the application.

Conclusion

Synthesising the factors above, and particularly given the real prospect of success, time should be extended. It would be a substantial injustice to the applicants if time were not extended. The substantial injustice would be that the applicants would be liable for a significant costs order notwithstanding that it may be infected with an error of law.

SCHEDULE OF PARTIES

S ECI 2024 06511
BETWEEN:
NESET ICBUDAK	First Applicant
HULYA ICBUDAK	Second Applicant
- v -
ALSA CONSTRUCTIONS	First Respondent
TANER ALINC	Second Respondent
FATMA ALINC	Third Respondent

[2025] VSC 377

27 June 2025