CITATION: Nguyen v Giannacopoulis [2007] NSWADT 44 This decision has been amended. Please see the end of the decision for a list of the amendments. DIVISION: Retail Leases Division APPLICANT Hong-Nhu Nguyen PARTIES: RESPONDENTS Con Giannacopoulis Angela Giannacopoulis FILE NUMBER: 065151 HEARING DATES: 24/01/07 SUBMISSIONS CLOSED: 24 January 2007 EXTEMPORE DECISION DATE: 24 January 2007 DATE OF DECISION: 28 February 2007 BEFORE: Fox R - Judicial Member CATCHWORDS: Claim for payment of money - Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED : Retail Leases Act 1994 APPLICANT K Quy, solicitor REPRESENTATION: RESPONDENT No appearance ORDERS: (1) Leave to Applicant to amend Application to claim $3,792.80 instead of return of bank guarantee; (2) Applicant has 7 days liberty to file submissions about disputed rent, Applicant to serve Respondents with these submissions; (3) Respondent has 7 seven days to file with response. List for directions 22/7/07, limited to the disputed rent and costs; (4) The Respondent to pay Applicant pursuant to S72(1)(a) an amount of $2431 by way of debt ; (5) Respondent to pay Applicant's costs on a party/party, basis up to 15 November 2005, and on a full indemnity basis after and including 16 November 2006. REASONS FOR DECISION 1 The Applicant lessee makes an application for the return to her of a Bank Guarantee in the sum of $9724.00 as a result of the expiry of her lease on 15th December 2005 of premises at 102 Oxford Street Cambridge Park. 2 The Applicant had the lease assigned to her some 15 months before the expiration date. 3 Her evidence before me, by way of affidavit dated 15th November 2006 satisfies me that there has been an on going dispute between her and the Respondent landlords about the payment of the sum of $2,431.00 being the first month's rent payable by her upon the assignment. 4 The Applicant says that she paid that amount as part of the payments paid by her, through her solicitor, when the assignment was completed, and it seems clear that the Respondents, by their actions, but not by any pleadings or material filed in the Tribunal, deny ever having received it. 5 The Respondents did initially appear in the Tribunal, but withdrew on 16th November 2006. The Respondents did not appear at today's hearing. 6 The Applicant's termination of her occupancy coincided with her sale of the goodwill of her business, and the Respondents appear to have entered into a new lease with the Applicant's purchaser. 7 As I have said earlier, the only and uncontested evidence before me was the affidavit of the Applicant. It satisfies me that she made every rental payment due to be paid by her, from the commencement of her occupancy to its end. 8 It seems clear that the Respondents have never acknowledged receipt of the first month's rental payment, which was not made direct to the Respondents - as was every subsequent payment – but was made by the Applicant by way of bank cheque through her solicitors to the Respondents' Solicitor. 9 I am satisfied from that which was put to me at the bar table that there was correspondence in March and May of 2006 between the solicitors who acted for the Applicant on her purchase and later sale, and the solicitors for the Respondents who also acted in respect of the initial assignment, and the subsequent termination. 10 The dispute between the parties was clear at the time, and unresolved. The Applicant subsequently applied for a mediation with the Retail Tenancy Unit, but the Respondents failed to attend, and the Registrar certified failure on 21st August 2006. The Applicant then filed these proceedings on 15th September 2006. 11 First directions hearing was 19th October 2006, Mr Valtas appeared for the Respondent and there appear to have been negotiations proposed, so the matter was adjourned for further directions on 16th November 2006. 12 On 8th November Mr Valtas wrote to the Applicant's solicitor threatening to sue for an amount of $3277.80, and proposing to deduct it from the guarantee. An earlier letter to the Applicant explains that amount (20th September) in which the following appears- "I am instructed that you were never asked for a rental increase during your tenancy. The CPI for Sydney from September 2004 – 2005 increased by 2.9%" and went on to claim:- 16 November 2005- Increase 17th November 2004 $ 846.80 Rental outstanding $2,341.00 Total $3,277.80 13 On 16th November Mr Valtas wrote in the Tribunal to indicate that he had no further instructions, the Respondents called upon the whole Bank guarantee including interest, and on the same day forwarded to the Applicant $6500.25. 14 Obviously the amount now in issue between the parties is $3792.80. I must stress that the Respondents did not appear, and much of what I have calculated is by inference. 15 Mr Quy sought leave to amend his application to recover outstanding bond in the sum of $3792.80, and I gave him that leave. He also sought an order for costs. 16 It is clear that the Respondents' conduct of the proceedings is a relevant consideration to assess whether there are special circumstances and I cannot think of a clearer example of that kind of conduct than the saga which unfolded before me. The Applicant is clearly entitled to her costs. 17 The Respondents did not ever raise anything formally in these proceedings but, it is clear that they now assert a rental increase, which was never claimed during the currency of the lease, or at its end. 18 I have serious doubts about the Respondents' entitlement in law, or as a result of their conduct, their entitlement to have it taken into account in these proceedings in the Tribunal. 19 The Applicant was not prepared to argue that matter today, and I gave Mr. Quy 7 day's liberty to file written submissions. Such submissions are to be forwarded to the Respondent personally, and the Respondent has 7 days to respond in writing. 20 I make the following orders: 1. Leave to Applicant to amend Application to claim $3,792.80 instead of return of bank guarantee. 2. Applicant has 7 days liberty to file submissions about disputed rent, Applicant to serve Respondents with these submissions. 3. Respondent has 7 seven days to file with response. List for directions 22/02/07, limited to the disputed rent and costs. 4. The Respondent to pay Applicant pursuant to S72 (1) (a) an amount of $2431 by way of debt. 5. Respondent to pay Applicant's costs on a party/party, basis up to 15 November 2005, and on a full indemnity basis after and including 16 November 2006. 21 Unfortunately, these reasons were not published in time for the 22 February 2007 directions, the matter is now for directions on 8 March 2007 limited to the question of the claimed rent increase and the cost of making submissions in relation to that aspect. 28/03/2007 - To correct month from 22/7/07 to 22/02/07 in Paragraph 20.3 - Paragraph(s) 20.3 28/03/2007 - amend date from 22/07/207 to 22/02/2007 - Paragraph(s) paragraph 20 sub paragraph 3 DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.