Lau v Westfield Limited (Westfield Eastgardens) [2005] NSWADT 165

CITATION: Lau v Westfield Limited (Westfield Eastgardens) [2005] NSWADT 165 DIVISION: Retail Leases Division APPLICANT PARTIES: Tim Lau Trading as Home and Variety RESPONDENT Westfield Limited (Westfield Eastgardens) FILE NUMBER: 045153 HEARING DATES: 07/07/2005 SUBMISSIONS CLOSED: 07/07/2005 DATE OF DECISION: 07/26/2005

BEFORE: Fox R - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: D Gasic, barrister RESPONDENT M Deutsch, solicitor ORDERS: 1. Application withdrawn – dismissed; 2. Applicant to pay Respondent's costs on party/party basis, on and from 12 May 2005 (including allowance for preparation for Directions Hearing on 12 May 2005).

1 The Applicant commenced these proceedings on 31 December 2004 by way of application for urgent relief. There appears to have been a lock out for a failure to pay rent. 2 On 7 January 2005, by consent, the Applicant was granted re-entry on conditions of payment of various amounts, and there was a referral to mediation (RTU) to take place no late than 31 January 2005. 3 At the next directions hearing on 10 February 2005 nothing had been done about the mediation and Higgins JM adjourned to 17 March 2005 noting "matter has been adjourned so that parties can arrange and participate in mediation". 4 On 17 March 2005 Molloy JM adjourned to matter to 14 April 2005 because mediation was still being arranged. The Applicant was directed to file "such amended Application as he may be advised". 5 I am told that a mediation took place on 11 April 2005 and on 14 April 2005 there was a further adjournment by consent, to 28 April 2005, to allow negotiations to continue. 6 On 28 April 2005 my notes indicate "Applicant to respond to offer of settlement made at mediation by 9 May 2005 – further directions 12 May 2005". 7 On 12 May the Applicant was directed to file and serve and amended application by 19 May 2005 and file evidence by 26 May 2005; there were Orders which allowed the Respondent respond in due time, and the matter was for further directions on 23 June 2005. 8 On 23 June 2005 the Applicant had taken no further steps of any kind, but Mr Tiernan sought a further adjournment, to allow him to take further instructions, and to allow the matter to be placed in order to proceed. 9 No further steps had been taken by last Thursday's direction hearing, when Mr Gasic of Counsel withdrew the Applicant's Application, and then resisted Mr Deutsch's application on behalf of the Respondent for costs. 10 It seems to me that there have now been enough published decisions in this division of the Tribunal to make quite clear the position in relation to Orders for costs. That is so even in circumstances where there has been no evidence filed of any kind, making it impossible to gauge the relative strengths of the claim made by a party, or assessing its' basis in law. I am entirely reliant on the history of the conduct of the parties as shown in the above summary, and that which was put to me from the bar table, and not contested, to the effect that, at some stage the Applicant again fell into arrears, was again locked out, did not further seek entry, and now could not do so, because the Respondent had re-let the premises. As I indicated during oral argument, I take the view that it is inappropriate for the Tribunal to place any obstacle in the path to mediation, and consequently I am not prepared to grant the Respondent's request for an Order for costs prior to the date of the mediation. 11 That is not to say that such an Order should not be made in an appropriate case, where a party unduly delays making the arrangements for mediation. However, in the present circumstances, where there is no evidence to indicate that kind of delay over the objections of the other party, I am not prepared to make such an Order. 12 During oral argument I indicated that my inclination was to make an Order for costs on a party/party basis in favour of the defendant from 14 April 2005 onward. 13 However, on further consideration, and on closely considering the progress of the matter through the Tribunal, I am not satisfied that is the appropriate Order. 14 As it was put to me from the bar table that the offer (what ever it may have been) made at mediation on 11 April 2005 was still open for acceptance on 14 April 2005, it would be simply unfair to impose a costs order against the Applicant at that time. 15 Much the same considerations apply from 28 April 2005, in view of my Order of that day which directed the Applicant to Respond by 9 May 2005 to the offer of settlement made at mediation. I note that time limit to be some three (3) working days before the Directions Hearing on 12 May 2005, and in my view that was the appropriate window of opportunity for the Applicant to have withdrawn without the possible hazard of a costs application. 16 However, at the Directions Hearing of 12 May 2005 the Applicant sought further time to file Amended Application, and at that point I am satisfied that the Applicant's conduct of the proceedings became so prejudicial to the Respondent to be the turning point where the Applicant's actions amounted to special circumstances in favour of the Respondent. 17 As I indicated at the hearing in oral argument, I am satisfied that the "no cost" rule of this Tribunal in the commercial circumstances of the Retail Leases Division places a strong burden on the parties and their representatives in the first instance to ensure that they do not without due reason put the other to the cost of coming to the Tribunal. I am also satisfied, for the same reason, that once proceedings are on foot, it behoves the parties to be vigilant for the point where the pursuit of the proceedings becomes untenable (for whatever reason) because that is the point where special circumstances may commence to arise. 18 My Orders are:- a Application withdrawn – dismissed. b Applicant to pay Respondent's cost on party/party basis, on and from 12 May 2005 (including allowance for preparation for Directions Hearing on 12 May 2005).