Decrevi Pty Ltd v Matela Pty Ltd & Anor [2003] NSWADT 265

CITATION: Decrevi Pty Ltd v Matela Pty Ltd & Anor [2003] NSWADT 265 DIVISION: Retail Leases Division APPLICANT PARTIES: Decrevi Pty Ltd RESPONDENT Matela Pty Ltd and Chiall Pty Ltd FILE NUMBER: 025007 HEARING DATES: 7/03/02 SUBMISSIONS CLOSED: 05/23/2003 DATE OF DECISION: 12/16/2003

BEFORE: Hole M - Judicial Member APPLICATION: Costs MATTER FOR DECISION: Costs LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: APPLICANT REPRESENTATION: D Smyth, solicitor RESPONDENT P Coster, solicitor ORDERS: Orders made 23 May 2003:; 1 The matter is dismissed; 2 Costs in the sum of $4,260.78 (incl GST) are to be paid by the applicant to the respondent in respect of the period from 7 March 2003 to 23 May 2003 inclusive, within 28 days of the date hereof; 3 Costs ordered to be paid on 6 March 2003 are fixed in the sum of $5,189.04 (incl GST) and are to be paid by the applicant to the respondent within 28 days of the date hereof ; 4. That the respondent advise the applicant of these orders within 7 days of the date hereof

1 Decrevi Pty Limited lodged an application in the Tribunal which sought : (1) Compensation and damage of $100,000.00 (2) Interest on loss and damages. 2 The application was listed for directions on 7 March 2002 by way of teleconference. A Certificate pursuant to Section 68(1) of the Retail Leases Act 1994 had been given on 17 December, 2001. On 7 March 2002 the matter was stood over for further directions to be made on 8 April 2002 by teleconference. 3 On 8 April 2002 directions were made that: (a) applicant to supply further and better particulars on or before 3 May 2002; (b) respondent to file and serve any response and/or cross application by 31 May 2002; (c) applicant file and serve any further affidavits, statements or submissions by 14 June 2002; (d) the respondent file and serve any affidavits, statements or submissions by 28 June 2002; and (e) that the matter be adjourned for further directions on 5 July 2002. 4 On 5 July 2002 further directions were made by teleconference that: (a) applicant to file and serve any affidavits, statements or submissions by 2 August 2002; (b) respondent to file and serve any affidavits, statements or submissions by 23 August 2002; and (c) further directions to be made on 26 September 2002 and a hearing date to be set then. 5 On 26 September 2002 further directions were made by teleconference that: (a) applicant to respond to respondent's formal questions on or before 18 October 2002; (b) respondent to file and serve any affidavits, statements or submissions by 29 November 2002; (c) the matter to be placed in the first available directions hearings after 29 November 2002 by arrangement with the parties by the Registry. Telephone conference to be required. 6 A teleconference was arranged for 5 December 2002 before Tribunal Member Mr B Donald and directions were made that: (a) applicant to file and serve: (i) particulars of breach of the lease (ii) particulars of the loss claimed to arise from alleged breaches (iii) evidence on which it proposes to rely to establish both breaches and loss in affidavit form. (b) further directions to be made on 6 March 2003 by teleconference. 7 On 6 March 2003 by teleconference Tribunal Member Mr B Donald made the following directions: (a) applicant to comply with directions of 5 December 2002 by close of business on 14 March 2003 failing which the matter will be struck out; (b) respondent to serve a copy of its letter of 5 March 2003 on Mr T Maher of applicant's solicitors; (c) costs against the applicant to date on a party/party basis as agreed or failing agreement as assessed; and (d) further directions to be made on 20 March 2003. 8 On 20 March 2003 by teleconference directions were made by Tribunal Member Mr B Donald that: (a) respondent to file and serve affidavits, statement or submissions by 2 May 2003; (b) the Tribunal to advise the applicant that if costs order of 6 March 2003 is not resolved by 15 May 2003 then security for costs will be required prior to hearing; (c) further directions to be made on 15 May 2003; and (d) hearing set down for 10 and 11 June 2003. 9 On 15 May 2003 the matter was listed before me by teleconference for further directions. Following submissions from the applicant's representative and the respondent's representative in respect of the amount of costs payable pursuant to the order made on 6 March 2003 I noted the file as follows: Noted - minimal attempts at negotiation by applicant. - if no agreement as to amount of costs by 30 May 2003 then respondent entitled to assume there is no agreement and then proceed to assessment of costs - applicant submitted that the Tribunal has no authority to order security for costs, and therefore ultra vires - decision on ultra vires submission to be intimated by phone on 16 May 2003 - in the event that it is ultra vires then the respondent has remedies available The following direction was then made: Matter to be re-listed for urgent hearing of the issue of security for costs and consideration of the power of the Tribunal to require security for costs and in the absence of that power consideration of fixing the costs payable pursuant to the order for costs made on 6 March 2003. The Tribunal further noted that the representative of the respondent would forward a letter dated 15 May 2003 to the representative of the applicant by facsimile on that day. The matter in respect of costs was re listed to be heard on 23 May, 2003. 10 By letter dated 15 May 2003 addressed to the Tribunal the applicant's representative requested that a new Tribunal Member be appointed to hear the matter other than Tribunal Member Mr. B. Donald. 11 On 21 May 2003 the applicant's representative forwarded a letter by facsimile to the Tribunal to the effect of: "Our client has instructed us to withdraw our application from this jurisdiction in view of the interlocutory orders made to date. These orders have had the effect of creating a lack of confidence in our client that it will receive a fair hearing on the merits of the application. On reflection it appears that the Tribunal does not have jurisdiction in this matter given that this is not a dispute relating to a retail lease as it is expressly excluded by Section 5 of the Retail Lease Act 1994. We have today informed the Respondent's solicitors of the withdrawal of our application." 12 On 22 May 2003 the applicant's representative forwarded a letter by facsimile to the Tribunal and a copy of this letter was handed to the Tribunal by the respondent's representative on 23 May 2003. The text of this letter is: "We refer to the Respondent's solicitors letter of even date which we received by facsimile this afternoon at 3.27 pm. The Administrative Decisions Tribunal does not have the jurisdiction to hear this matter or to make any orders in regards to this matter. The Retail Leases Act, and by consequence the jurisdiction of this Tribunal, is limited to retail leases that have a let able [sic] area of 1,000 sq metres or less by virtue of Section 5 of the Act. The let able [sic] area to which this lease applies is 1,720 sq metres. As our client's application has been withdrawn we oppose the making of any order for dismissal or for costs." 13 At the hearing on 23 May 2003 I considered the correspondence that had been received by the Tribunal and referred to in Paragraphs 9, 10 and 11. No evidence was provided to support the view that the subject Lease was precluded from the jurisdiction of the Tribunal as suggested in the letter dated 22 May, 2003 referred to in Paragraph 11. 14 I further considered a 'Schedule of the Respondents' Costs' handed up at the hearing on 23 May 2003. This schedule discloses the costs referred to in the Order dated 5 March, 2003 as $5,189.04 (incl GST) and discloses the costs claimed between the 6 March, 2003 and the 23 May, 2003 excepting costs of the 23 May, 2003 as $4,260.78 (incl GST). 15 The applicant filed an application with the Tribunal on 17 January, 2002 seeking a substantial sum in compensation and damages as set out in paragraph 1 above. A certificate had been obtained from the Registrar of Retail Tenancy Disputes. The matter was listed on 10 separate occasions before the Tribunal, on 8 of those occasions various directions were made. The Applicant and the Respondent provided affidavits, reports, statements, and written submissions to the Tribunal in respect of the substantive claim made in the Application in anticipation of hearing of the substantive issues on the 10 and 11 June, 2003. 16 The issue of costs subject of the Order made on the 6 March, 2003 and further issues relating to this costs order were to be considered on 15 May, 2003 and then subsequently on the 23 May, 2003. The substantive issues of the application having been set down for hearing on the 10 and 11 June, 2003 at the Directions hearing on 20 March, 2003 remained so set down. 17 By letter dated 21 May, 2003 directed to the Tribunal the applicant advised that the application was withdrawn. 18 On 23 May, 2003 I made Orders as set out at Paragraph 20 below for the reasons set out herein and in view of the following: (a) the Application made by the applicant filed on 17 January, 2002, relying on the jurisdiction of the Tribunal, (b) Certificate pursuant to , (c) the directions made on the occasion of each directions hearing, from the 7 March, 2002 to 15 May, 2003, (d) the submission of the material to the Tribunal by the Applicant and the Respondent for the purposes of the hearing set down for the 10 and 11 June, 2003, and (e) the unilateral withdrawal of the application by the Applicant by letter dated 21 May, 2003. 19 The Orders have been reduced to a certificate given pursuant to Section 82 of the Administrative Decisions Tribunal Act 1997. 20 A request has been made for written reasons for the decision. 21 On the 23 May 2003 I made the following orders: 1. The matter is dismissed. 2. Costs in the sum of $4,260.78 (incl. GST) are to be paid by the applicant to the respondent in respect of the period from 7 March 2003 to 23 May 2003 inclusive, within 28 days of the date hereof. 3. Costs ordered to be paid on 6 March 2003 are fixed in the sum of $5,189.04 (incl GST) and are to be paid by the applicant to the respondent within 28 days of the date hereof. 4. That the respondent advise the applicant of these orders within 7 days of the date hereof.