Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD) [2007] NSWADTAP 74

Appeal Panel - Internal

CITATION: Satchithanantham v Zeaiter Corporate Holdings Pty Ltd (RLD) [2007] NSWADTAP 74

APPLICANT Hemalathasothy Ranjini Satchithanantham PARTIES: RESPONDENT Zeaiter Corporate Holdings Pty Ltd

FILE NUMBER: 079043

HEARING DATES: 13 November 2007

SUBMISSIONS CLOSED: 13 November 2007

DATE OF DECISION: 18 December 2007

BEFORE: Chesterman M - ADCJ (Deputy President); Rickards K - Judicial Member; Weule B - Non Judicial Member

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 075034

DATE OF DECISION UNDER APPEAL: 05/24/2007

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994

CASES CITED: Satchithanantham v Zeaiter Corporate Holdings Pty Ltd, Unreported, Administrative Decisions Tribunal, 24 May 2007

T Satchithanantham, agent REPRESENTATION: A Vincent, barrister

ORDERS: 1. The appeal is dismissed; 2. The Appellant is to pay the Respondent's costs of the appeal.

REASONS FOR DECISION Relevant facts 1 For the purpose of resolving this appeal, it is sufficient to summarise a few salient features of relatively complex and long-running litigation between the parties. The outcome of that litigation is not yet determined. 2 It commenced in the Local Court on 8 February 2005. On that day, the Respondent to this appeal, Zeaiter Corporate Holdings Pty Ltd, filed proceedings claiming unpaid rent and outgoings due from the Appellant, Mrs Hemalathasothy Rangini Satchithanantham, under a lease of retail shop premises governed by the Retail Leases Act 1994. 3 On 19 April 2005, the Appellant filed a defence to the Respondent's claim and a cross claim seeking an award of damages against the Respondent. 4 On 2 May 2005, the Respondent filed a defence to the cross claim. 5 By an order made in the Local Court on 15 September 2005, both the Respondent's claim and the Appellant's cross claim were transferred to the Tribunal. They both received the same file number, 055131. 6 The matter went through a number of interlocutory stages. It was fixed for hearing on 9 August 2006, but the hearing had to be adjourned because the Appellant was involved in Supreme Court proceedings on that day. 7 Directions made by the Tribunal on 31 August 2006 included a direction that the Respondent file and serve a further defence to the Appellant's cross claim. According to an affidavit sworn on 23 May 2007 by Mr Darren Edwards, the solicitor for the Respondent, this direction was not recalled by counsel appearing for the Respondent. In consequence, it was not complied with. 8 Further directions made on 23 November 2006 included a direction that the Respondent file and serve a further defence to the cross claim by 14 December 2006. 9 The further defence was not filed and served until 17 January 2007. Mr Edwards stated in his affidavit that this was because the manager of the Respondent was not available during the period when it should have been prepared. 10 On 23 February 2007 the Appellant filed an Application for Original Decision, together with an Application for an Urgent Interim Order. The Tribunal created a new file (075034) when receiving these Applications. In them, the Appellant sought judgment in her favour on the cross claim and orders for the payment of substantial damages and costs to her by the Respondent. 11 The grounds that the Appellant advanced in support of these Applications were to the following effect: (a) that the Respondent had been in default of numerous orders made by the Tribunal; (b) that she suffered 'financial hardship'; and (c) that the Respondent had threatened to lock up other premises leased by the Appellant's company from the Respondent. The orders that she sought and some of the grounds on which she relied were set out in a document headed 'Annexure A.1', which was annexed to the Application for Original Decision. The decision under appeal 12 On 24 May 2007, the Tribunal, constituted by Judicial Member Higgins, admitted into evidence the affidavit by Mr Edwards that has already been mentioned and an affidavit sworn on 24 May 2007 by Mr Thambiappah Satchithanantham. Mr Satchithanantham is the Appellant's husband and is her representative in these proceedings. 13 Having heard oral submissions, the Tribunal ordered that the Applications filed by the Appellant should be dismissed. The transcript of the ex tempore judgment given by the Tribunal (Satchithanantham v Zeaiter Corporate Holdings Pty Ltd, Unreported, Administrative Decisions Tribunal, 24 May 2007) contains the following passages:- What I propose is that your [i.e., the Appellant's] application 075034 is misconceived on the basis that it really is, in effect, an amendment of the cross claim that you had filed in the local court or district court and which is part of file 055131. I propose to dismiss this application but in doing that there may be material on this file which should be transferred into the earlier file… … the matter… came to the Tribunal as one file with a statement of claim and a cross claim. The matters that you have raised in 075034 do not really raise any new claims…. The first order is that the application (075034) is dismissed on the basis that it is misconceived in that it does not raise any new claim that relates to the claim that is the cross claim of the applicant in file number 055131.Two, the applicant is at liberty to file in proceedings 055131 annexure A.1 as part of its (sic) cross claim. 14 On that day, the Tribunal also rejected an application by the Respondent for the costs of the proceedings on that day. It held, referring by implication to s. 77A of the Retail Leases Act 1994 and s. 88 of the Administrative Decisions Tribunal Act 1997 , that there were no special circumstances warranting an award of costs in the Respondent's favour. The appeal 15 On 27 July 2007, the Appellant filed the present appeal, which was heard on 13 November 2007. In her Notice of Appeal, in written submissions (filed on 29 August and 13 November 2007) and at the hearing, numerous arguments were advanced on the Appellant's behalf. Many of them were not at all clearly expressed and there was a considerable amount of repetition. 16 The matters chiefly relied upon by the Appellant were assertions as follows: (a) that the Respondent had not filed a further defence to the cross claim despite having directed to do so; (b) that it had been in default of a number of orders made by the Tribunal; (c) that the Tribunal, at the hearing on 24 May 2007, did not give the Appellant a sufficient opportunity to argue her case; (d) that the Tribunal did not give adequate reasons for its decision; and (e) that the Appellant was disadvantaged through not having legal representation. 17 In written submissions (filed on 30 August 2007) and in oral submissions made at the hearing, the Respondent contested each of these matters. It made the following points: (a) it had in fact filed a further defence to the cross claim; (b) its failures to comply strictly with the Tribunal's directions, which occurred for reasons outlined in Mr Edwards' affidavit, had limited significance only, were entirely excusable and occasioned no prejudice to the Appellant; (c) at the hearing on 24 May 2007 the Tribunal gave the Appellant's representative a sufficient opportunity to argue her case, since the issues raised in it were relatively straightforward; (d) for the same reason, the grounds articulated by the Tribunal for its decision were entirely adequate; and (e) the Appellant, although not formally represented by a legal practitioner, had received advice during hearings from two solicitors. 18 The Respondent also made two submissions regarding costs. These were (a) that the Appeal Panel should reverse the Tribunal's decision regarding the costs of the hearing on 24 May 2007 and (b) that it should award to the Respondent its costs of the appeal. The Appeal Panel's conclusions 19 In the Appeal Panel's opinion, the appeal is without merit and must be dismissed, for the following reasons. 20 The Tribunal's decision on 24 May 2007 had two principal components. First, it constituted the dismissal of an application by the Appellant for an order that the Respondent should pay to her the damages sought in her cross claim, together with costs. Secondly, it included a determination that since the cross claim was already before the Tribunal as an element of the proceedings in file 055131, the Appellant's filing of two fresh applications (i.e. an Application for Original Decision and an Application for an Urgent Interim Order), thereby causing file 075034 to be created, resulted in an unnecessary duplication, which should be remedied by appropriate orders. 21 The Appeal Panel has no doubt that the first of these steps was justified. The Appellant put forward no evidence to contradict the relevant statements in Mr Edwards's affidavit. These statements outlined the limited extent to which the Respondent had failed to comply with the Tribunal's directions regarding the filing of a further defence to the cross claim within stipulated time-limits and provided explanations for these failures. These failures fell very far short of providing grounds for an order striking out the Respondent's further defence to the cross claim. An order to this effect would have been manifestly unjust and unsupportable. 22 The second step taken by the Tribunal on 24 May 2007 was of formal significance only. Commonly, cross claims in the Retail Leases Division are given a separate file number to that of the initial claim. But that does not necessarily occur when, as in this case, a claim and a cross claim arrive at the Tribunal by transfer from a court. 23 The Tribunal, by taking this 'second step', did nothing to prevent the cross claim being heard and determined at a subsequent time, along with the claim initially instituted by the Respondent. It simply confirmed that, as had been the case before the Appellant filed her applications on 23 February 2007, both the claim and the cross claim should 'travel together' in one file, file no. 055131. By virtue of the second order made on 24 May 2007, the contents of Annexure A.1 to the Application for Original Decision that the Appellant had lodged on 23 February 2007 formed part of the material put before the Tribunal when it heard the claim and the cross claim. 24 Having reviewed the transcript of the proceedings on 24 May 2007, the Appeal Panel is satisfied that grounds (c), (d) and (e) in the foregoing summary of the Appellant's submissions (see [16] above) are without merit. 25 The Appeal Panel agrees with the Respondent's submission that, since this appeal as a whole is without merit, the Appellant should pay the Respondent's costs of the appeal. Within the case law interpreting s. 77A of the Retail Leases Act 1994 and s. 88 of the Administrative Decisions Tribunal Act 1997, it has regularly been held that where an appeal has no real prospect of success this amounts to 'special circumstances warranting an award of costs'. The Tribunal's Practice Note on Costs (No. 12, 2006) contains in clause 12 an express statement to this effect. 26 On the other hand, the Appeal Panel sees no grounds for overturning the Tribunal's decision on 24 May 2007 rejecting the Respondent's application for the costs of the hearing on that day.