Kriletich v Dee Why Projects Pty Limited (No. 2) [2011] NSWADT 255

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Kriletich v Dee Why Projects Pty Limited (No. 2) [2011] NSWADT 255 Hearing dates: 10 August 2011 Decision date: 08 November 2011 Jurisdiction: Retail Leases Division Before: S Higgins, Deputy President Decision: The respondent's application for costs is dismissed. Catchwords: Costs - unsuccessful retail tenancy and unconscionable conduct claim - whether it is fair to award costs to the successful party - indemnity costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Privacy and Personal information Act 1998 Retail Leases Act 1994 Victorian Civil and Administrative Tribunal Act 1998 (Vic) Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 Calderbank v Calderbank [1975] 2 All ER 333 De Costi Seafoods (Franchises) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40 Denis Corporation Pty Ltd v Casey CC (Red Dot) [208] VCAT 691 Kriletich v Dee Why Projects Pty Ltd [2011] NSWADT 109 Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64 Category: Costs Parties: Nick Kriletich (Applicant) Dee Why Projects Pty Limited ACN 126 740 181 (Respondent) Representation: Counsel D H Mitchell (Respondent) B Gelonesi (Applicant) Mallesons Stephen Jaques Solicitors (Respondent) File Number(s): 105108

REasons for decision 1RETAIL LEASES ACT (S Higgins, Deputy President): On 19 May 2011, the applicant's retail tenancy and unconscionable conduct claim was dismissed: see Kriletich v Dee Why Projects Pty Ltd [2011] NSWADT 109 ( Kriletich ). In accordance with the orders that were made, the respondent has pressed its application for an order that the applicant pay its costs in regard to these proceedings. The respondent also seeks costs on an indemnity basis. 2The background to this application is that at all relevant times, the respondent was the owner and developer of the Dee Why Grand Plaza at 834 Pittwater Road, Dee Why (the Plaza). In June 2009, the applicant entered into an agreement with the respondent to lease shop 32A of Plaza. The agreed use of the premises was the 'sale of coffee, gelato juice, pre-packaged beverages, focaccias, and the provision of short order caf menu'. The applicant commenced trading from the premises on 29 July 2010. 3On 30 August 2010, the respondent sold the Plaza to Dee Why Grand Shopping Centre Pty Ltd (the new lessor). 4The dispute between the parties arose prior to the applicant commencing to trade from the premises. It centred on the respondent's alleged failure to provide a mechanical exhaust system for shop 32A. The applicant contended that he had entered the agreement to lease in reliance of a statement made in the respondent's ' Tenancy Fit-out Manual '. That statement the applicant contended was a representation that the respondent would provide a mechanical exhaust system to all food shops, including shop 32A. 5The Tribunal found that the statement of the respondent was a representation as alleged and that it was misleading or false: see Kriletich at [38]. However, the Tribunal found that as the representation was as to a future matter, the onus was on the applicant to prove that at the time the representation was made the respondent had no reasonable basis to make it: see Kriletich at [40] and [41]. The Tribunal found that the applicant failed to prove this aspect of his claim: see Kriletich at [44]. The Tribunal also found that the applicant failed to discharge his onus of proof in regard to the issue of reliance: see Kriletich at [49]. On the basis of these findings the Tribunal l also found that the applicant had failed to establish his unconscionable conduct claim: see Kriletich at [50] to [59].