Finch v Samios [2012] NSWADT 16

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Finch v Samios [2012] NSWADT 16 Hearing dates: 15 September 2011, 13 October 2011 Decision date: 08 February 2012 Jurisdiction: Retail Leases Division Before: S Montgomery, Judicial Member Decision: The Applicant is to pay the Respondent the sum of $500 as costs of and incidental to these proceedings. Catchwords: Retail Tenancy Claim - costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131 Gizah Pty Limited -v- AXA Trustees Limited (No. 2) [2001] NSWADT 164 Kriletich v Dee Why Projects Pty Limited (No. 2) [2011] NSWADT 255 Petria Pty Ltd v Makhoul [2005] NSWADTAP 12; Prasad & anor -v- Fairfield City Council [2002] NSWADTAP 2; Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64 Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADTAP 27; Singh v Solomon & Ors (No 2) [2005] NSWADTAP 58 Category: Costs Parties: Phylis Marie Finch (Applicant) Helen Samios (First Respondent) Stamatina Tsikleas (Second Respondent) Representation: P Finch (Applicant in person) Sparke Helmore Solicitors (Respondents) File Number(s): 115126

REasons for decision 1RETAIL LEASES DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant applied to the Tribunal seeking both urgent interim orders and final orders in relation to the lease ("the Lease") for premises at 1013 Old Princess Highway, Engadine ("the premises"). The Lease commenced on 1 October 2010 and expires on 30 September 2013. The permitted use of the premises stated in the Lease is "Laundromat and dry cleaning services". The Applicant conducts a laundrette business on the premises. 2It is not in dispute that the Lease is governed by the Retail Leases Act 1994 ("the Act"). 3The initial application sought an order for the assignment of rights under the Lease and asserted that the Respondents had refused to agree to the assignment in circumstances that were unreasonable. 4At the time the matter came before me on 15 September 2011, it was apparent that the Applicant's case could not succeed and the Applicant sought to address these by filing an amended application. In her amended application for urgent interim orders the Applicant stated: "I am in ill health, 70 years of age and cannot continue for another two years. 3 other buyers have walked away because the Landlords will not grant an extension to my restrictive lease and the current buyer has now walked away due to the hassles of obtaining the assignment of the lease with the changes he requires to give him continuity of business. The current buyer has no further interest in obtaining the business at these premises. Three other buyers have walked away in the past 9 months due to the fact that the Landlords would not grant an extension beyond the two years remaining on my lease. I feel very victimised by this whole affair. I am very stressed and suffer repeated anxiety attacks I am quite sure that in this strained economic environment now I will have great difficulty in selling this business with no right of renewal on the lease. Ideally the landlords could consider buying the business from me at a fair market price and settle this matter." 5In the Applicant's amended Application For Original Decision the order sought is stated as: "An order to cancel my lease that expires September 2013" 6The grounds for the application are stated as: "Ground 1Buyer has walked away due to too many hassles in getting the lease assigned. Particulars 1.1 My buyer has now walked away due to the fact that he no longer wishes to have these people for his landlords even though he wants the business. Ground. 2 The Landlords have repeated thwarted my attempts to sell this business over the past year Particulars 2.1 by not responding to information requested from numerous buyers by the Landlord refusing the buyers requests after they have made numerous phone calls to see why their correspondence has not been answered. Buyers concerned have walked away because "The Landlords are so slack in answering their correspondence and phone calls regarding requested changes to the lease." Ground 3Term of Lease restrictions Particulars 3.1 I am quite sure I that I would not now be able to sell this business in the current economic climate with a two year lease with no right of renewal." 7When the urgent interim application came before me for hearing on 15 September 2011, the problems with the application were apparent. I stood the matter over to allow the Applicant the opportunity to consider legal advice and I referred the matter for mediation. Mediation was unsuccessful and the matter again came before me on 13 October 2011. 8The Respondents objected to the amended application on the basis that it concerned issues of commercial negotiation only. Mr Oros, solicitor for the Respondents, submitted that the Tribunal has no jurisdiction to hear the matter where there is no defined 'dispute' in accordance with the Act. 9The Applicant conceded that there had been no breach of the Lease by the Respondents and that her request was of a commercial nature only. 10I indicated to the parties that I agreed with Mr Oros's submission that the Tribunal did not have jurisdiction to hear the matter. In the circumstances, the Applicant withdrew her application and I made the order that the application was dismissed. 11Mr Oros sought an order for costs in favour of the Respondents and made brief submission in support of that application. 12I set a timetable for filing of submissions in relation to the issue of costs - to allow the Applicant to respond to the application for costs and for the Respondents to reply. Each of the parties filed submissions.