Yee Kwong Wah Pty Limited v Hawach & Anor [2003] NSWADT 151

CITATION: Yee Kwong Wah Pty Limited v Hawach & Anor [2003] NSWADT 151 DIVISION: Retail Leases Division APPLICANT Yee Kwong Wah Pty Limited PARTIES: RESPONDENTS Elias Hawach Joseph Hawach FILE NUMBER: 025128 HEARING DATES: 28/05/2003 SUBMISSIONS CLOSED: 05/28/2003 DATE OF DECISION: 06/25/2003

BEFORE: Fox R - Judicial Member APPLICATION: Claim for payment of money - Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: R Horsley RESPONDENTS No appearance ORDERS: Orders made on 28/5/03.; 1. Respondents Elias and Joseph Hawach are to pay to the Applicant Yee Kwong Wah Pty Limited, by way of debt for outstanding rent, and by way of the cost of restitution of the premises, the sum of $28,614.62.; 2. The Respondents are to pay interest at the rate of 7% calculated from 23 February 2003 on the amount of $18,064.62 and calculated from 15 April 2003 on the amount of $10,550.00.; 3. The Respondents are to pay the Applicant's costs for all work done to prepare for the 14 February 2003 hearing, and for all subsequent work, to the date hereof.

1 In this matter Ms Rafferty first appeared, and then, later, Mr Horsley Barrister appeared on behalf of the Applicant. Although the respondents had been previously represented by firstly Sid Hawach Solicitor and later by Mr Compton Bailey Solicitor, there was no appearance at today's hearing. 2 The Applicant claimed $18,064.62 as unpaid rent and $10,550.00 as the cost of the reinstatement of the premises. 3 The premises are a restaurant called "Positanos". The Respondents were in occupation pursuant to a holding over, and appeared to have vacated the premises on 23 January 2003. 4 The matter first became before this Tribunal on 12 December 2002, for directions, and Mr Sid Hawach Solicitor wrote to the Tribunal seeking an adjournment because his client Elias Hawach was ill. The matter was adjourned til 14 February 2003, when there was no appearance for the Respondent, and the matter was listed for possible ex parte hearing on 3 April 2003. I directed that the Respondents be notified of the possibility of orders being made for both rent and reinstatement. On 7 March 2003 Mr Sid Hawach forwarded letter to the Tribunal seeking to file a statement by Eddie Hawach. It was unsigned, but claimed that he (Eddie) and not Joseph or Elias were the tenant of the premises. 5 On 3 April 2003 all of Eddie, Joseph and Elias appeared, and I set the matter down for urgent hearing (Joseph was about to go to Canada) on 24 April 2003, and arranged a further hearing on 17 April 2003 so that I could personally deal with the return of Summons for Production. On 17 April 2003 Mr Compton Bailey appeared for the Respondents, and the matter was (more or less) put on track for a hearing today, subject to further directions on 5 May 2003. Compton Bailey again appeared on 5 May 2003 and the matter seemed to be on track. 6 Compton Bailey did not appear at 10am today, but Ms Rafferty indicated that the parties were actually engaged in negotiations. Compton Bailey subsequently faxed to the Tribunal an indication that he was not in receipt of further instructions – settlement negotiations had failed and his client was "unable to afford the costs of litigation". 7 I proceeded ex parte 8 I had as evidence before me the Lease, and two affidavits, (30 January and 20 March), of Brendan O'Brien, Property Manager. 9 From Mr O'Brien's affidavit I am satisfied that an amount of $18,064.62 is outstanding and payable. This amount is mainly rent, but also is contributions to outgoings. In relation to the outgoings I am satisfied that the Section 27 and 28 provisions of the Retail Leases Act have been complied with and that the whole amount is payable. 10 From Mr O'Brien's affidavit, and from a letter written by Sid Hawach dated 14 February 2003 I am satisfied that the Respondents only removed part of the restaurant equipment from the premises, and that they were in need of reinstatement. In evidence were quotations for that work in the sum of $10,550.00 , $16,950.00, $34,959.10 and $41,888.00, and consequently I accept that the claim for the cost of reinstatement in the sum of $10,550.00 is appropriate. 11 In view of the fact that the Respondents did file material with the Tribunal which raised a prospect that they were not the Lessees, it is appropriate to advert to various recent letters by Mr Sid Hawach Solicitor either to the Tribunal or to the Applicants, in which he refers to his clients Joseph and Elias Hawach as the Lessees. 12 At one of the directions hearings, and in some of the paperwork which appears on the Tribunal file, the Respondents raised the finding of a Residential Tenancies Tribunal, arising out of a dispute between the occupier of the restaurant and the strata manager of the building. The relevant document certainly does refer to Eddie Hawach as the occupier of the restaurant, but goes on to speculate that he may be manager, occupier or owner and makes no further finding. I do not make this observation because I am in any way bound by the findings of that Tribunal. I am satisfied that Elias and Joseph Hawach were the Lessees and are properly the Respondents to these proceedings. 13 I order pursuant to Section 72 (1)(a) that the Respondents Elias and Joseph Hawach pay to the Applicant, by way of debt for outstanding rent, and by way of the cost of restitution of the premises, the sum of $28,614.62. Further, the Respondents are to pay interest at the rate of 7% calculated from 23 February 2003 on the amount of $18,064.62 and calculated from 15 April 2003 on the amount of $10,550.00. 14 The circumstances of the hearings and appearances which I have detailed above satisfy me that special circumstances exist for all but the first appearance. If a party takes advantage of the procedures of this Tribunal, raises the real prospect of a defence, and puts the opponent to the time and trouble of appearing at various interlocutory of proceedings and then preparing for and appearing at a hearing, only, at the very last moment, to withdraw, then it would be monstrously unfair to apply the usual "no costs" rule which follows from Section 88 of the Administrative Decisions Tribunal Act. The Respondent is to pay the Applicant's costs for all work done to prepare for the 14 February 2003 hearing, and subsequently, to the date hereof.