Chastel-Roux Pty Ltd v Le [2012] NSWADT 223

Administrative Decisions Tribunal New South Wales Medium Neutral Citation: Chastel-Roux Pty Ltd v Le [2012] NSWADT 223 Hearing dates: On the papers Decision date: 31 October 2012 Jurisdiction: Retail Leases Division Before: S Montgomery, Judicial Member Decision: Each party is to pay its own costs of these proceedings. Catchwords: Costs Legislation Cited: Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Cases Cited: Coogee Bay Village v Profilio (RLD) [2011] NSWADTAP 67 Du Aus Pty Ltd v Riviera Cove Pty Ltd (No. 2) [2010] NSWADT 302 Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64 Category: Costs Parties: Chastel-Roux Pty Ltd (Applicant) Chinh Le and Diane Phung (Respondents) Representation: Bicknell & Monteith Lawyers (Applicant) Than & Co. Solicitors (Respondents) File Number(s): 125066

REasons for decision 1GENERAL DIVISION (S MONTGOMERY, (JUDICIAL MEMBER)): The Applicant is the lessee of premises at 53 Walker Street North Sydney. The Respondent is the lessor of those premises. 2The Applicant applied to the Tribunal pursuant to section 71 of the Retail Leases Act 1994 ("the Act") seeking the following orders: "1. The Respondent submit the lease document to the Applicant with 14 days 2. The parties execute the lease document within 24 days after submission of the lease document The Respondent pay the Applicant's costs of the application." 3The Applicant identified the following grounds for its application * the Applicant exercised its option for a further term of the lease but agreement could not be reached on the rent for the new term to commence on 1 June 2011. * on 2 August 2011, the Applicant filed an application for the appointment of a specialist retail valuer to assess the rent for the new term. * on 18 August 2011, the Tribunal, by consent, ordered that Mr Phil Barlow of Landmark White be appointed as the specialist retail valuer. * the valuation was provided on 29 November 2011 assessing rent at $36,300.00 per annum plus outgoings and GST as from 1 June 2011. * no objection to the assessment was taken by either party. * following the provision of the valuation, the Applicant sought from the Respondents the new lease. * on 29 April 2012, the Respondents advised the Applicant that their solicitor had drafted the new lease and that it would be sent to the Applicant's solicitor 'soon' but wanted payment of outgoings cleared before the new lease would be sent. * on 1 May 2012, the Applicant instructed its solicitors to seek the submission of the new lease from the Respondents. On the same day, the Applicant's solicitors wrote to the Respondents requesting the submission of the new lease within 7 days. * the new lease was not submitted within such time and the Applicant's solicitor spoke to the Respondent's solicitor but was advised that the Respondent's solicitor had no instructions to submit the new lease. * the Applicant wishes to obtain the new lease to confirm its right to occupy the shop as soon as possible. * the Applicant is entitled to a new lease having exercised its option in accordance with the terms of the lease, which has not been disputed by the Respondent. As the rent for the first year of the new term has been determined by the valuation and the lease is otherwise on the same conditions as the existing lease, there is no reason for the delay by the Respondents in submitting the new lease to the Applicant. * there are no issues in dispute between the Applicant and Respondent which would warrant the parties going to mediation to resolve. * in all the circumstances, the Applicant seeks orders of the Tribunal to enforce its rights for the submission of the new lease. 4The matter came before me for Directions on 31 May 2012. At that time I was informed that the lease had been provided and therefore the orders were no longer required. However, the Applicant indicated that it was seeking an order for costs. I set a timetable for the parties to file whatever material they sought to rely on in regard to that application and it was agreed that the application should be determined on the basis of the material files and without the need for a hearing.