Appeal Panel - Internal CITATION: Satchi & Satchi Australia Pty Ltd & anor v Zeaiter Corporate Holdings Pty Ltd (No. 2) (RLD) [2008] NSWADTAP 87 APPELLANTS Satchi & Satchi Australia Pty Ltd Thambiappah Satchithanantham PARTIES: Hemalathasothy Ranjini Satchithanantham RESPONDENT Zeaiter Corporate Holdings Pty Ltd FILE NUMBER: 089025 HEARING DATES: 22 July 2008 SUBMISSIONS CLOSED: 22 July 2008 DATE OF DECISION: 24 December 2008 BEFORE: O'Connor K - DCJ (President); Higgins S - Judicial Member; Weule B - Non-Judicial Member CATCHWORDS: Costs DECISION UNDER APPEAL: Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (unreported, 18 December 2007) FILE NUMBER UNDER APPEAL: 075031 DATE OF DECISION UNDER APPEAL: 12/18/2007 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: Cripps & Anor v G & M Dawson Pty Ltd & Anor [2006] NSWCA 81 Satchi & Satchi Australia Pty Ltd & anor v Zeaiter Corporate Holdings Pty Ltd (RLD) [2008] NSWADTAP 65 APPELLANTS In person REPRESENTATION: RESPONDENT A Clachers, Thurlow Fisher Lawyers ORDERS: 1. The respondent's application for costs of the appeal granted. 2. The appellants, jointly and severally, to pay the respondent's costs of the appeal proceedings, as agreed or assessed. REASONS FOR DECISION 1 On 8 October 2008 the Appeal Panel delivered its principal decision in this matter: see Satchi & Satchi Australia Pty Ltd & anor v Zeaiter Corporate Holdings Pty Ltd (RLD) [2008] NSWADTAP 65. It dismissed an appeal brought by a company tenant against the lessor. 2 The appeal had contested a decision by the primary Tribunal summarily dismissing proceedings that had been commenced by the appellants against the lessor under the Retail Leases Act 1994 (RL Act). The Tribunal made that decision because the company had been deregistered. 3 The fact of deregistration had been known to the two directors, Mr and Mrs Satchi, since July 2007, yet it had not been advised to the lessor or the Tribunal. The Tribunal made its order in December 2007. Subsequently the company has been reregistered, and it is pursuing its claims against the lessor in new proceedings filed in the Tribunal. More detail is given in the principal decision. 4 The lessor received a costs order in its favour both against the company and against Mr Satchi, as the company's agent. The order disposing of the appeal included dismissal of the appeal against that order. 5 The lessor applied for the costs of the appeal. 6 Section 88(3) of the Administrative Decisions Tribunal Act 1997 (ADT Act) provides: '(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.' 7 This appeal arises out of proceedings for an original decision brought under the RL Act. Section 77A of the RL Act provides: 'The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.' 8 Accordingly, the following rule applies, ADT Act, s 88(1): '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 there are special circumstances warranting an award of costs.' 9 There is also a Tribunal Practice Note, 12, giving guidance as to how the costs discretion may be exercised. 10 The Appeal Panel made the following directions: 'Respondent to file and serve any submissions (limited to not more than 1000 words) in relation to its application for an award of costs within 14 days. Appellants to file and serve any submissions in reply (limited to not more than 1000 words) within a further 14 days. Respondent's application to be determined without hearing, as permitted by Administrative Decisions Tribunal Act 1997, s 76.' 11 The timetable was not observed. The appellants' submissions rejecting any order for costs was filed 4 November 2008, and the respondent lessor's submissions in support of their application for costs were filed 7 November 2008. 12 The lessor's position is simple. First, it submits that the appeal was without merit, misconceived and wasteful of costs. Second, the lessor referred to the role of Mr Satchi in the proceedings. He has acted throughout as the company's agent. They noted that as a company's agent he has a duty to ensure that he acts responsibly and with care. The submissions acknowledged that he does not have legal qualifications, but that nonetheless he is experienced in being a party to, and conducting, litigation. 13 Mr Satchi for the appellants made a counter-application for the appellants' costs of the proceedings, and for an order dismissing the respondent lessor's application. 14 Mr Satchi attached a document to his submissions which appears also to be seen as relevant to another set of proceedings in the Tribunal, and canvasses issues the subject of those proceedings. 15 The submissions do not deal with the core question here – whether dismissal of this appeal involves 'special circumstances' of such degree that an order should be made against one or more of the appellants. 16 The usual position in this Tribunal is that the parties to proceedings bear their own costs. In light of s 88, the Tribunal does not adopt the 'costs follow the event' rule usually applied in the ordinary courts. Something more than merely losing needs to be demonstrated to support the conclusion that 'special circumstances' justify the imposition of a costs order. On the other hand, the Practice Note and decisions of the Appeal Panel have recognised that the bringing of an appeal involves a second round of litigation, and if an appellant loses the appeal that may in its own right be appropriate to take into account as a special circumstance. The Appeal Panel and the Practice Note recognise that retail leases disputes arise in a commercial environment, and the unsuccessful pursuit of proceedings and especially appeals may expose the successful parties to substantial cost and expense. 17 In this instance the conduct of Mr Satchi in not advising either the lessor or the Tribunal of the lessee company's deregistration was wrong. It was wrong for him to continue to pursue proceedings in circumstances where the company had no legal capacity. The Tribunal's order against him personally to bear the costs of the proceedings as from 25 July 2007 was, in our view, well founded. 18 Had Mr Satchi moved promptly to rectify the deregistration, these problems may not have arisen. The Tribunal might have been more inclined to allow an adjournment to have the problem rectified, as ultimately occurred over the January-February period of 2008. 19 The Practice Note notes that special circumstances may include lodgement of an appeal that had no real prospects of success. The Court of Appeal said in Cripps & Anor v G & M Dawson Pty Ltd & Anor [2006] NSWCA 81 per Santow JA at [60] in reference to exercise of the power given by s 88(1): 'For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional.' 20 In our view, Mr Satchi has pursued these proceedings indifferent to the weakness of the appellants' case as it went to the failure to advise promptly the deregistration and minimise any exposure to costs on the part of the lessor while that situation remained. By the time the matter reached the Appeal Panel he had filed on behalf of the now reregistered company fresh proceedings against the lessor. In these circumstances his appeal was unnecessary. 21 The respondent lessor's application is granted. 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.