Behl v Hurstville Retail Pty Ltd (No 2) [2010] NSWADT 234

CITATION: Behl v Hurstville Retail Pty Ltd (No 2) [2010] NSWADT 234

DIVISION: Retail Leases Division

APPLICANT Saurabh Behl PARTIES: RESPONDENT Hurstville Retail Pty Ltd

FILE NUMBER: 095079, 095097

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 22 September 2010

DATE OF DECISION: 30 September 2010

BEFORE: Olsson E, SC - Deputy President; Harrison B - Non-Judicial Member; Griffiths G - Non-Judicial Member

CATCHWORDS: Costs

LEGISLATION CITED : Administrative Decisions Tribunal Act 1997

APPLICANT/CROSS RESPONDENT REPRESENTATION: RESPONDENT/CROSS APPLICANT

ORDERS: The Applicant/Cross Respondent pay the costs of the Respondent/Cross Applicant on the usual basis up until 23 June 2009 and thereafter on an indemnity basis.

REASONS FOR DECISION

1 On 10 August 2010 the Tribunal delivered its decision on the substantive part of this matter. The Tribunal made an order that each party pay its own costs but gave liberty to the parties to make submissions for a variation of the costs order within 14 days. The Respondent/Cross Applicant made submissions. No submissions were received from the Applicant/Cross Respondent.

2 In the substantive matter, the Tribunal found in favour of the Respondent/Cross Applicant and made orders dismissing the Applicant's claim and upholding the Cross Application.

3 The Respondent seeks an order that the Applicant pay its costs on an indemnity basis. In support of that application, it relies upon an affidavit sworn by Simone Corbett, solicitor, on 8 September 2010.

4 The affidavit deposes to the fact that various offers were made by the Respondent to settle the proceedings. The first offer (made on 23 June 2009) was proposed broadly in terms which would not have permitted the Applicant to continue to sell coffee but which would have continued the sub lease and expanded its permitted use to sell cold bottled drinks, sandwiches and wraps. It was a condition of the offer that the Applicant pays the sum of $7,500.00 in costs. A further offer in similar terms was made on 13 July 2009 although the part of the offer that dealt with costs required the Applicant to pay $13,500.00 in costs. The Lease Police which was representing the Applicant rejected both offers.