El-Saeidy v NSW Land and Housing Corporation [2011] NSWSC 447

Supreme Court New South Wales

Medium Neutral Citation: El-Saeidy v NSW Land and Housing Corporation [2011] NSWSC 447 Hearing dates: 9 December 2009, 15 February, 2 March 2010, 28 February 2011 Decision date: 19 May 2011 Jurisdiction: Common Law Before: Hislop J Decision: Each party is to bear his or its own costs of the summons filed in this court on 4 December 2009 save for the costs in respect of 15 February 2010 which are to be paid by the plaintiff. Catchwords: Common law - administrative law - proceedings dismissed - costs. Legislation Cited: Consumer, Trader and Tenancy Tribunal Act 2001 Cases Cited: Australiawide Airlines Limited t/as Regional Express v Aspirion Pty Limited [2006] NSWCA 365 One Tel Limited v Deputy Commissioner of Taxation (2000) 101 FCR 548 Category: Costs Parties: Fawzi El-Saeidy (Plaintiff) New South Wales Land & Housing Corporation (First Defendant) Consumer Trader & Tenancy Tribunal (Second Defendant) Representation: R. Notley (Plaintiff) S. Gardiner (First Defendant) Submitting appearance (Second Defendant) Slattery Thompson (Plaintiff) NSW Land & Housing Corporation (First Defendant) Crown Solicitor's Office (Second Defendant) File Number(s): 2009/297217

Judgment

Introduction 1This is an application for costs of a summons dismissed on the plaintiff's application pursuant to UCPR 29.8.

Background 2The plaintiff was the tenant of premises of the first defendant at Villawood. 3On 26 February 2009 police charged the plaintiff with assault occasioning actual bodily harm. The plaintiff pleaded not guilty to the charge. The alleged victim was the plaintiff's next door neighbour, also a tenant of the first defendant. 4As a result of the charge the first defendant commenced proceedings in the Consumer, Trader & Tenancy Tribunal ("CTTT") in April 2009 to terminate the plaintiff's tenancy pursuant to s 68 of the CTTT Act. The plaintiff defended those proceedings. 5On 24 September 2009 the plaintiff was ordered by the CTTT to "provide to the applicant and the Tribunal, a copy of any further documents on which the respondent intended to rely at the hearing by 15 October 2009". 6On 10 November 2009 this Court stayed the proceedings in the CTTT pending finalisation of the criminal proceedings on 7 December 2009. The plaintiff had made two previous unsuccessful attempts for a stay in the CTTT. 7On 1 December 2009 the CTTT refused the plaintiff's request for an extension of time for compliance with the order for the filing of further documents. The CTTT also confirmed that the matter remained listed for completion of the hearing on 10 December 2009. 8On 4 December 2009 the plaintiff filed a summons in this Court seeking administrative law relief against the CTTT for not permitting him to file an affidavit and other material after 15 October 2009. 9The first defendant opposed the orders sought in the summons. The CTTT filed a submitting appearance, save as to costs. 10On 7 December 2009 the charge against the plaintiff was dismissed. 11The hearing of the summons commenced on 9 December 2009 but was adjourned part heard. 12On 10 December 2009 the CTTT directed the plaintiff to file and serve on the first defendant a copy of the transcript of the criminal proceedings. 13On 1 February 2010 a copy of the transcript of the criminal proceedings was provided to the first defendant. 14On or about 12 February 2010 the CTTT proceedings were withdrawn by the first defendant as a consequence of the dismissal of the charge against the plaintiff. 15On 15 February 2010 the summons was before the court and the plaintiff was ordered to pay the costs of the day. 16On 2 March 2010 the summons was dismissed pursuant to UCPR 29.8 on the application of the plaintiff. The first defendant did not oppose the order. It was agreed there was no purpose to be served by pursuing the summons. There was no agreement as to the costs of the summons. The plaintiff sought such costs on an indemnity basis. The first defendant also sought costs. The costs applications were stood over pending the determination of the costs application in the CTTT proceedings. 17On 11 June 2010 the plaintiff sought costs in the CTTT proceedings. On 2 September 2010 the CTTT ordered the first defendant to pay the plaintiff's costs of the proceedings in the Tribunal. However, on 28 January 2011 that order was overturned on appeal to the District Court on the ground that the CTTT was functus officio when it made the order. 18At the request of the parties, it was agreed the costs application in relation to the summons be determined on written submissions. I have been furnished with submissions of the plaintiff and the first defendant pursuant to that agreement. I have had regard to those submissions and submissions made orally by the parties on 2 March 2010.