Benyameen v Wetherill Park Market Town Pty Ltd (No 2) [2011] NSWADT 120

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Benyameen v Wetherill Park Market Town Pty Ltd (No 2) [2011] NSWADT 120 Hearing dates: On the papers Decision date: 26 May 2011 Jurisdiction: Retail Leases Division Before: M Chesterman, Deputy President Decision: The Applicant is to pay the Respondent's costs of and incidental to these proceedings as between party and party, as agreed or assessed under the Legal Profession Act 2004. Catchwords: Costs - indemnity costs - retail lease - summary dismissal of application Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: AT v Commissioner of Police [2010] NSWCA 131 Benyameen v Wetherill Park Market Town Pty Ltd [2011] NSWADT 85 Calderbank v Calderbank [1975] 3 All ER 333 De Costi Seafoods (Franchises) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 Torchia v Swanton [2010] NSWADT 142 Category: Costs Parties: Akhaker Benyameen (Applicant) Wetherill Park Market Town Pty Ltd (Respondent) Representation: No appearance (Applicant) McGrath, Dicembre & Co (Respondent) File Number(s): 105027

REASONS FOR DECISION

Introduction 1This decision relates to the costs of proceedings instituted on 26 February 2010 by Akhaker Benyameen, a lessee under a lease governed by the Retail Leases Act 1994, against the Respondent lessor, Wetherill Park Market Town Pty Ltd. The lease was of premises forming part of a shopping centre owned by the Respondent. 2On 2 September 2010, the Applicant, Mr Benyameen, filed an Amended Application. On 14 September 2010, the Respondent filed a Reply to the Amended Application. 3The principal ground advanced in the Amended Application contained the following allegations: (a) in a disclosure statement preceding the execution of an earlier lease of the premises to the Applicant, the Respondent represented that it would not alter the tenancy mix within the shopping centre by introducing a competitor; (b) in reliance on this representation the Applicant agreed to enter into a subsequent lease, the terms of which were set out in consent orders made by the Tribunal on 6 June 2008, thereby bringing earlier proceedings between the parties to a conclusion; and (c) in or about 1 December 2009, the Respondent caused damage to the Applicant by introducing a direct competitor within the shopping centre. 4The hearing of the Application in its amended form took place on 21 and 22 February 2011. Mr Bland of counsel, instructed by Harb Lawyers, appeared for the Applicant and Mr Pretti, an estate agent, appeared by leave as agent for the Respondent. 5During the first day of the hearing, the Tribunal heard argument on an application by the Respondent, which it had foreshadowed in its Reply, for an order summarily dismissing the proceedings. The ground of dismissal advanced by the Respondent was that in instituting and maintaining the proceedings the Applicant was seeking to relitigate issues that had already been resolved in the consent orders made by the Tribunal on 6 June 2008. 6The Tribunal then adjourned overnight to consider these arguments. On the second day, 22 February 2011, it gave an ex tempore decision, in which it dismissed the proceedings on the ground put forward by the Respondent. 7On 22 April 2011, pursuant to a request made on 21 March 2011 under section 89(3) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'), the Tribunal published written reasons for this decision ( Benyameen v Wetherill Park Market Town Pty Ltd [2011] NSWADT 85). 8At the conclusion of the hearing on 22 February 2011, the Tribunal also made consent orders resolving certain other issues in dispute between the parties and gave the following directions on the question of costs:- (a) Any application for costs by the Respondent is to be filed and served by its representatives, together with supporting submissions and (if necessary) a notice of appearance, within 14 days of the date of these orders. (b) The Applicant is to file and serve submissions in reply within a further 14 days. (c) The question of costs is to be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997. 9On 7 March 2011, the solicitor now acting for the Respondent, Mr Anthony Dicembre, filed a notice of representation and an application, with supporting submissions, for an order that (a) the Applicant pay the Respondent's costs on an indemnity basis, or in the alternative on a party/party basis, and (b) that those costs be assessed on the basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004. 10The Applicant has not filed submissions in reply. On 18 May 2011, an officer in the Registry, having contacted Harb Lawyers by telephone, was informed that they had no instructions to represent the Applicant on the matter of costs. 11In these circumstances, it is appropriate that this matter should now be determined, even though no submissions have been received from the Applicant. 12One of the grounds on which the Applicant sought relief was that the Respondent had engaged in unconscionable conduct. Accordingly, the Tribunal was constituted at the hearing in accordance with clauses 1 and 4 of Part 3B of Schedule 2 of the ADT Act. For the purposes, however, of this decision relating to costs, which is an 'ancillary function' as defined in subsection (1) of section 24A of this Act, it is constituted by a single judicial member of the Retail Leases Division, pursuant to subsection (2)(b) of that section.