CITATION: Denovan v Tynan [2009] NSWADT 159 DIVISION: General Division Applicant: Margaret Denovan PARTIES: Respondent: Judith Ann Tynan FILE NUMBER: 085197 HEARING DATES: 16 April 2009 EXTEMPORE DECISION DATE: 16 April 2009 DATE OF DECISION: 22 June 2009 BEFORE: Fox R - Judicial Member LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Applicant Representative: In Person REPRESENTATION: Respondent Representative: Nick Dan, Solicitor 1. Note that bond monies have been repaid. 2. Lessor to comply with covenant 18.2 of the Lease. 3. Lessor to take all steps to have effected necessary repairs to prevent leakage into leased premises. ORDERS: 4. Lessor to forthwith appropriately place "Private" and "No parking" signs in carparking area of building to identify a space as the Lessee's. 5. Rent to be calculated from 19/9/07. 6. Lessor to pay $405.95 as damages being 4 days rent which should have been abated. 7. No order for costs. REASONS FOR DECISION 1 Pursuant to s89 of the Administrative Decisions Tribunal Act 1997, the Applicant has requested written reasons for a decision which I made at a telephone directions hearing on 16 April 2009. These are they. 2 The application dated 1 October 2008 sought relief set forth in 6 items. The Applicant was not legally represented, and because she trades in the Newcastle area, appeared by telephone. The Respondent was represented by Mr Dan, solicitor, of Newcastle, and he too appeared by telephone. 3 The matter was dealt with by way of directions hearings on 6 November 2008, 20 November 2008, 18 December 2008, 5 February 2009, 19 March 2009 and 16 April 2009 either before Molloy JM or me. 4 The mater was not ever formally referred to mediation, but the parties were encouraged to negotiate. On 16 April 2009 Mr Dan indicated that only the question of "costs", which was the Applicant's sixth request, remained outstanding; he was prepared to concede the other five. I made the following Orders. 1. Note that bond monies have been repaid. 2. Lessor to comply with covenant 18.2 of the lease. 3. Lessor to take all steps to have effective and necessary repairs to prevent leakage into leased premises. 4. Lessor to forthwith appropriately place "private"; "no parking" signs in parking area of building to identify a space as the lessees. 5. Rent to be calculated from 19 September 2007. 5 The sixth claim, was for "costs" of $913.56, broken up as follows:- $250.00 amount taken by Respondent from bank guarantee. $405.95 rent paid for 4 days when shop closed by water damage $55.00 Tribunal filing fees (for this matter) $115.00 Tribunal filing fees (for previous unconscionable conduct claim). $50.00 photocopying and time spent doing so $37.70 for 3 Express Post bags 6 It was clear that the bond monies of $250.00 had been reinstated. It as just as clear that the Respondent would have no real answer to the claim for $405.95, being an entitlement to abatement of rent due to the state of the premises during the four days. However, neither of these payments comes under the heading of "costs" as they are used in the litigation context. In truth they were damages. 7 The usual liabilities covered by the word "costs" as it is used in legal shorthand are fees paid to lawyers, Court fees and witness expenses. 8 The Applicant was not legally represented in the matter, nor did she make any claim for fees which she might have paid to a lawyer for preliminary advice, or other relevant assistance. It follows that she has no claim for those kinds of liabilities. 9 In a traditional Court, where costs follow the event, the Applicant may well have been able to claim her filing fee and photocopying expenses. This Tribunal is governed by different rules, as set out in s88 of the Administrative Decisions Tribunal Act. Since 1 January this year that has read:- "(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section. (1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following: (a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as: (i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or (ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or (iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or (iv) causing an adjournment, or (v) attempting to deceive another party or the Tribunal, or (vi) vexatiously conducting the proceedings, (b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings, (c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law, (d) the nature and complexity of the proceedings, (e) any other matter that the Tribunal considers relevant. (2) The Tribunal may: (a) determine by whom and to what extent costs are to be paid, and (b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis. (3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs . (4) In this section, "costs" includes: (a) costs of or incidental to proceedings in the Tribunal , and (b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application." 10 Thus the starting point is that there be no order for costs, but a party may be able to avail themselves of one of the "gateways" set by s88(1A) to seek the exercise of the Tribunal's discretion. I do not consider, in view of all of the circumstances, that I should exercise that discretion. 11 The Applicant raised the fact that the Respondent refused to mediate, and that fact might well enliven the gateway set by s88(A)(a)(ii), or (b) but only in my view, when a party has remained obdurate to the end of a fully litigated contest in which they were so spectacularly unsuccessful as to raise the suggestion that, properly advised on the facts and the law, the case proposed should have been seen to be so hopeless that it should never have been litigated in the first place, thus making it abundantly unfair that the opposing party be put to the cost of either defending or pursuing the litigation. That is certainly not the case before me; the Respondent conceded almost the whole claim, leaving only the abatement claim to be resolved. 12 If it be suggested that the fact that negotiations took a long time to find a resolution, and that that fact alone enliven s88(1A), then I would point out that there were only 5 actual directions hearings. The notes indicated that neither party was available by phone on 6 November 2008, and the Applicant did not respond on 5 February 2009. I note that the Respondent did not file any evidence in response to the Application, but simply negotiated. To award costs against the party who concedes a negotiated settlement before taking the first substantial step on the litigation treadmill would be, in my view, tend to discourage parties from negotiating, and would be entirely contrary to the spirit of the Retail Leases Act. 13 The Applicant drew my attention to s88(4), but in order to fall within that she must first establish that she is entitled to the exercise of the discretion. 14 Lastly, in relation to the claim for the $115.00 filing fee, that is misconceived, relating as it does, to the previous matter. 15 Order No 6 is:- Lessor to pay $405.95 as damages being 4 days rent which should have been abated. Order No. 7 is:- No order for costs. 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.