Civil and Administrative Tribunal New South Wales Medium Neutral Citation: City Convenience Leasing Pty Ltd & Anor v Dencal Pty Limited [2014] NSWCATCD 64 Hearing dates: 11 March 2014 Decision date: 04 April 2014 Before: K Rickards, Senior Member Decision: The Tribunal declares that there is a binding settlement agreement between the first applicant, second applicant and respondent arising from the written agreement dated 27 February 2014. The application is dismissed. Each party is to bear its own costs of the proceedings up to and including 3 March 2014. Unless the applicants provide written submissions limited to 500 words in length to the Registry and to the respondent within 7 days of the date of these orders, the applicants are to jointly and severally pay the costs of the respondent relating to this application and the proceedings on or from 4 March 2014. In the event that submissions as to costs are provided to the Registry and to the respondent in accordance with order 4, the respondent may file and serve any further written submissions within 14 days of the date of these orders. The issue of costs on and from 4 March 2014 will then be determined upon the basis of written submissions filed. Catchwords: Mediation agreement - privilege; settlement of proceedings Legislation Cited: Retail Leases Act 1994 Farm Debt Mediation Act 1994 Cases Cited: Wallis Lake Fisherman's Co-Operative Limited v CAN 079830595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) RLD [2011] NSWADT AP29; DB Rreef Funds Management Ltd and PT LTD v Valentino Home Fashion Pty Ltd [2008] NSW ADT 332; ANZ Bank v Ciavarella [2002] NSW SC 1186; Diagne v Payman [2011] NSW ADT 2006; Kyluk Pty Ltd v The Bike Mason Pty Ltd & Anor [2007] NSW ADT 96 Texts Cited: Nil Category: Principal judgment Parties: City Convenience Leasing Pty Ltd (first applicant) Jamal Gebara (second applicant) Dencal Pty Limited (respondent) Representation: Mr H Soltan - agent (1st and 2nd applicants) Mr J Conomy - special counsel (respondent) JDK Legal Solicitors File Number(s): COM 14/00617 Publication restriction: Nil reasons for decision Background 1The first applicant entered into a retail lease agreement with the Respondent for shop premises at 127 Liverpool Street Sydney for a term of 5 years to commence on 1 March 2010. During this time, part of the premises were the subject of a sub-lease. 2The second applicant Mr Gebara is the director and shareholder of the holding company which in turn owns all of the shares in the first applicant. He was also a party to a deed entered into on 26 June 2013 between the parties involved in this dispute. A witness statement was apparently signed by him on 7 March 2014 and was filed in these proceedings which contains his assertion that: "CCL's director Mr Mohamed Gebara is my son and receives instructions from me ... (3) I direct and instruct CCL agents and employees ..." 3The original application filed in these proceedings on 1 November 2013 sought orders, inter alia, declaring that the respondent had engaged in misleading or deceptive conduct or had acted in an unconscionable manner, that it had repudiated a deed of surrender of the subject lease, and sought an order that the respondent "pays the Applicants damages - up to $400,000 - for: a. surrendering the lease; b. loss of opportunity of having an alternative lease under clause 8 of the deed". 4Within the original application, alternative orders were also sought by the applicants seeking: a refund of money said to have been paid under the deed which was entered into between the parties in 2013; a declaration that an amount of $59,304.00 said to be payable under the deed was not due or owing; return by the respondent to the first applicant of the subject bank guarantee which it had received under the terms of the lease, and; orders for payment of interest and costs. 5The parties were referred to mediation by the Tribunal in accordance with the provisions of section 68(1) of the Retail Leases Act 1994 ("the RLA"): 68 Disputes and other matters must be submitted to mediation before proceedings can be taken (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. 6The mediation took place before Mediator Anthony Herro over two sessions held on 20 and 27 February 2014. The respective legal representatives for and with the parties attended at the first session but were apparently requested not to appear at the second session. Notwithstanding this request or arrangement, the applicants' agent Mr Soltan attended at the second mediation session but was not allowed to participate. 7Following the second mediation session on 27 February 2014, a written agreement was created; this agreement, which was then signed by Kim Maloney on behalf of the respondent and by Jamal Gebara, was expressed to settle all matters in dispute between the parties ("the settlement agreement"). 8Notwithstanding the apparently successful mediation outcome, the applicants' agent Mr Soltan proceeded to file an Amended Application with the Tribunal a few days later on 4 March 2014 together with a number of fresh witness statements; this Amended Application now seeks further orders in addition to those which were originally sought. The fresh witness statements filed for the applicants are from a person named Mazin Rahmany, from the employed manager Mustafa Ahmad, and from Mr Jamal Gebara. Within part of this fresh statement material, reference is made to the occurrence of the mediation, but no reference at all is made to the settlement agreement itself or to the events leading up to its creation. 9The respondent now seeks orders disposing of the proceedings in accordance with the terms of the settlement agreement. 10The response of Mr Soltan on behalf of the applicants is novel. No factual contention is made as to why the settlement agreement should not be treated as resolving the subject dispute, other than an initial submission that only Mr Gebara's signature was endorsed upon the settlement agreement and that he lacked authority to bind the first applicant, followed later by a later submission that Mr Gebara lacks capacity. 11In considering whether a binding settlement agreement has been reached, it is also submitted on behalf of the applicants that the neither the actual settlement agreement itself nor the original agreement between the parties to enter into mediation can be considered by the Tribunal by reason of the provisions of section 69 of the RLA. 12The provisions of section 69 of the RLA are as follows: 69 Statements made during mediation not admissible Any statement or admission made in the course of the mediation of a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) pursuant to arrangements made by the Registrar under this Part is not admissible at a hearing of a claim under Division 3 or in any other legal proceeding. 13When these proceedings came before the Tribunal for directions on 11 March 2014, the applicants were represented by their agent Mr Soltan who is not a lawyer but who operates a business entitled "The Retail Leases Doctor" and appears to represent the interests of lessees from time to time in Tribunal proceedings. The fact that Mr Soltan is not a lawyer is relevant to one of the issues raised by him on behalf of the applicants concerning communications and may also be relevant in the context of the costs orders which have been sought by each party. 14At the directions hearing, Mr Soltan produced a set of written interlocutory orders which he suggested the Tribunal should now make in order to have the proceedings continue to a hearing. Mr Conomy on behalf of the respondent contended that the subject dispute between the parties had been resolved following mediation and that the parties were bound by the terms of the settlement agreement which had been made. It was then determined that it was appropriate that this particular issue be the subject of an immediate hearing after disposition of other matters in the directions hearing list. The parties were subsequently given an opportunity to make submissions and tender documents. Relevant Facts and Issues 15An ancillary issue which arose during the hearing was the admissibility of an email message which was sent on 5 March 2014 to Mr Soltan by Mustafa Ahmad ("the 5 March email"). 16Mr Ahmad is described as the Business Development Manager for the first applicant. At the time of dispatch of the 5 March email, a copy was also sent to the second applicant Mr Gebara, and further copies were also sent to Justin Conomy, Jon Martin and Nicole Beath who are all lawyers acting for the respondent. This email (set out below) was in response to a letter which had been sent by the respondent's solicitors to Mr Soltan on that same day 5 March 2014, warning of further legal proceedings which would be taken to enforce the settlement agreement: "Dear Haney, Please advise Justin that we are going to honour the obligation in paying $25,000 + GST to Mr Maloney on or before 28 March 2014 in exchange for the original copies of the Bank Guarantees and a letter from Dencal stating that they are no longer required (as per par 1 of the terms), and you will attend our office with terms for dismissal of the current NCAT proceedings with no order as to costs (as per par 6 of the terms) Thank you. Kind regards" 17A second witness statement of Mustafa Ahmad dated 7 March 2014 was tendered on behalf of the applicants during the hearing. In paragraph 4 of that statement (upon which I note that the first name of Mr Ahmad is spelt incorrectly but the statement is nevertheless said to have been read and signed by him) it is stated that: "4. On 5 March 2014 at 2.34 pm I received an email from Nicole Beath from JDK Legal. As a result, I wrote an email to Mr Haney Soltan using my mobile phone at 2.58 pm on the same day. I mistakenly selected the option of copying to all which resulted in my email going to all those who were copied in the email I received earlier. The email I sent at 2.58 pm was intended to go to Mr Haney Soltan only. ..." 18Two issues which arise in relation to the 5 March email are: if one accepts the statement of Mr Ahmad dated 7 March 2014 that the email message was sent by mistake, is that message nevertheless admissible, and; is such message nevertheless protected by any type of privilege? 19Without proceeding to detailed reasoning, it is the Tribunal's view that the circumstances of this matter are such it would not be unfair to admit the 5 March email message into evidence upon the discrete issue of whether or not a settlement had been reached between the parties which was binding; the Tribunal also does not consider that the principles and protection of legal professional privilege can extend to the subject communication. 20There was no legal professional privilege available to protect the communications between Mr Gabara and Mr Soltan; this is simply because Mr Soltan was not a lawyer. Despite the bounds and categories of privilege perhaps expanding slowly over the years, no known privilege would act to protect such communications even though Mr Soltan was representing the applicants' interests in the subject dispute. Although, if it was accepted that the 5 March email was sent in error to the respondent's lawyers, there is an element of apparent unfairness in receiving such an email into evidence, the extent of such unfairness is significantly overshadowed by the relevance and probative value of this communication in which Mr Gabara reiterates the applicants' willingness to adhere to the terms of the settlement agreement. In any event, a finding on this point is not a necessary prerequisite to determination of the issue as to whether these proceedings should now be dismissed upon the terms as sought by the respondents. What is the ambit of section 69 of the RL Act? Can the terms of the mediation agreement and the settlement agreement be taken into account in determining whether the proceedings are now finalised? 21The applicants through Mr Soltan contend that section 69 precludes admission into evidence of both the mediation agreement and the settlement agreement (which the parties agree was created on 27 February 2014 but was incorrectly dated 27 March 2014). Mr Soltan argues that both the mediation agreement and the settlement agreement fall within the category of documents and communications which cannot be divulged or taken into account by the Tribunal by reason of section 69 and that the settlement agreement is only (to quote Mr Soltan), "an agreement to reach agreement" instead of being a binding agreement in itself. 22More precisely, it is contended on behalf of the applicants that, in determining this threshold issue of whether the parties have settled their dispute, the specific written terms of the mediation agreement upon which the parties agreed to undertake mediation cannot be admitted into evidence nor the subsequent settlement agreement document, because these are "statements made in the course of the mediation" of the subject retail tenancy dispute and are therefore rendered inadmissible by section 69 of RLA. 23In support of the above submission, Mr Soltan relies upon the decision of the Appeal Panel in Wallis Lake Fishermen's Co-Operative Limited v ACN 079830595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) RLD [2011] NSWADT AP29. In particular, he points to paragraph 57 of this decision which in turn recites an earlier decision of the Tribunal in DB Rreef Funds Management Ltd and PT LTD v Valentino Home Fashion Pty Ltd [2008] NSWADT 332 where it was held that information included within an application form for mediation lodged by one party which contained various "statements or admissions" relevant to issues which were in dispute and which were to be the subject of the mediation, was rendered inadmissible by section 69. 24In Wallis Lake, the Appeal Panel was dealing with the issue of whether or not a settlement offer made in the course of mediation should be admitted into evidence for the purpose of determining costs. Relying upon the terms of section 69, the Appeal Panel found that evidence of any such offer was inadmissible. 25Unlike the factual situations which existed in Wallis Lake and in DB Rreef Funds, the present proceedings do not involve consideration of any "statement or admission made in the course of the mediation" of the dispute; rather, the Tribunal is being asked to consider the terms upon which the parties agreed to proceed to mediate, and the resulting terms of settlement which were executed following the mediation process. 26The mediation agreement is clearly a precursor to the mediation process and is not a document made "in the course of the mediation". It is a document which is both admissible and relevant to the issue presently before the Tribunal. 27The mediation agreement contains a number of provisions relating to the behaviour and roles of the parties, mediator and legal advisors, the confidentiality of certain communications, and the status of any settlement agreement: 20. Subject to clause 28, the parties and the mediator agree the following cannot be used as evidence or relied on in any legal proceedings in relation to the dispute: a. statements, views expressed or suggestions or proposals made in mediation b. documents prepared and produced for the mediation; c. admissions made in the mediation; d. indications made by a party that they are willing to accept the proposal; and e. except where those matters are otherwise not confidential or privileged. 22. The mediation and any communications relating to the mediation, with the exception of any settlement agreement executed by the parties, shall be without prejudice, except in the circumstances described in clause 28. 27. No party will be bound by anything said or done in the mediation unless a written settlement agreement is reached and executed by all necessary parties. A written and correctly executed agreement is binding on all parties to the mediation. 28. Either party may enforce the terms of the settlement agreement through legal proceedings in the Administrative Decisions Tribunal or a court, as appropriate. In the proceedings, a party may use this mediation agreement as evidence and may call the mediator or persons present at the mediation to give evidence limited to the terms of the settlement agreement". 28It should be here recorded that, by reason of the transitional provisions of the legislation establishing the NSW Civil and Administrative Tribunal, it is this Tribunal which is now an appropriate forum pursuant to clause 28 of the mediation agreement for enforcement of terms of any settlement agreement. 29As stated in paragraph 25 above, the mediation agreement is a document which is not covered by the provisions of section 69 of RL Act. 30The provisions of section 69 of RLA are comparable, but not identical, to the provisions of section 15 of the Farm Debt Mediation Act 1994 which is in the following terms: 5Confidentiality of mediation sessions (1) Evidence of anything said or admitted during a mediation session and a document prepared for the purposes of, in the course of or pursuant to, a mediation session are not admissible in any proceedings in a court or before a person or body authorised to hear and receive evidence. (2) In this section, "mediation session" includes any steps taken in the course of making arrangements for a mediation session or in the course of the follow-up of a mediation session. (3) This section does not apply to the following documents: (a) Heads of Agreement, (b) a contract, deed, mortgage or other instrument entered into as a result of, or pursuant to, Heads of Agreement, (c) a summary of mediation under section 18A 31The above section was considered by His Honour Macready AJ in ANZ Bank v Ciavarella [2002] NSWSC1186. Despite the court dealing with what may be seen to be the wider ambit of section 15(2) as compared to section 69 of the RLA, a number of relevant authorities and important findings, as well as observations about the admissibility into evidence of agreements reached following mediation (such as the settlement agreement in these proceedings), are contained within this decision: 19 Justice Barr in Bell v Mediate Today Pty Ltd (unreported, SCNSW, 29 October 1998) considered whether a document recording terms of settlement entered into between parties who settled their differences at a mediation session held under the provisions of the Farm Debt Mediation Act was admissible in evidence. The magistrate held that such documents did not come within the meaning of the words "pursuant to a mediation" and ordered that the document be produced. Barr J upheld the decision of the magistrate and expressed the view that: "the Court should have regard to the purposes of the Act in general and the section in particular in considering whether such a document is inadmissible by reason of the section". 20 His Honour continued: "Section 15 was considered by Badgery-Parker J in State Bank of New South Wales v Freeman & Ors, 31 January 1996 unreported. One of the questions his Honour had to answer was whether a decision by the New South Wales Rural Assistance Authority to grant a certificate under s11 of the Act was reviewable by this Court. His Honour received evidence, over objection relying on s15, of documents exchanged by the parties to a mediation prior to the mediation and about what happened at the mediation. One of the documents recorded the heads of agreement the parties had reached. In the result, his Honour's decision made it unnecessary to decide about the admissibility of the heads of agreement, but his Honour made these remarks about the scope of the section - "In the course of the proceedings there was some interesting discussion as to what documents were or were not rendered inadmissible by the provisions of s15(1) - for example, whether it would have the effect of excluding from evidence the heads of agreement by which, in the present case, at the conclusion of the mediation, the parties recorded the agreement that they had come to. It is, in my view, clear that a document of that nature has to be regarded not as a document prepared for the purposes of, in the course of or pursuant to a mediation session, even allowing for the extended definition of "mediation session" in s15(2) but must be regarded as a document which came into existence after the mediation session had concluded. I recognise that that view makes it difficult to understand what is intended to be conveyed by the phrase "pursuant to a mediation session" - perhaps it means or is intended to mean something like, "in the pursuit of a satisfactory mediation."" In Commonwealth Bank of Australia v McConnell, 24 July 1997 unreported, Rolfe J was dealing with a dispute between parties to a farm debt who had been to mediation and prepared heads of agreement. The heads of agreement were tendered, but a foreshadowed objection under s15 did not materialise, so it became unnecessary for his Honour to decide whether they were caught by the section. His Honour said this about the section - "These provisions are intended to ensure that a mediation will allow for full and frank discussion with a view to the parties seeking to reach a resolution of their dispute or, in cases where there is no dispute, an accommodation based on the particular facts of the case. Unless there is a legislative prohibition on a revelation of what was discussed it is probable that one of the intentions of the Act, namely to seek to bring about a resolution would be severely impeded. In this way the Act seeks to ensure that discussions at a mediation have the same status as "without prejudice" communications aimed at settling litigation." His Honour referred with approval, in the following terms, to the judgment of Badgery-Parker J in State Bank of New South Wales v Freeman - "Although his Honour expressed a strong view that the agreement reached at a mediation was admissible, he did not finally conclude that it was. Common sense would indicate, at least prima facie, that his Honour's preliminary view is correct. If it is not, a party could reach an agreement at mediation and later refuse to abide by it and preclude its being tendered. That approach would seem to defeat a fundamental objective of the Act." Bearing in mind the purposes of the Act and the section, namely to make attendance at mediation in appropriate circumstances a condition precedent to the enforcement of a farm debt and, in order to further the parties' chances of agreeing at mediation, to preserve the confidentiality of things said and written, I think that their Honours' approach is correct. I acknowledge the difficulty referred to by Badgery-Parker J about what subs(2) means in its reference to steps t aken "in the course of the follow-up of a mediation session", but I do not think that that expression includes the preparation of heads of agreement or terms of settlement. That is because by the time that step is taken, the mediation session has come to an end. The preparation of such documents does not "follow-up" the mediation session. Such documents are not prepared pursuant to a mediation session. I think that to construe the section so as to exclude from evidence terms of a settlement reached at a mediation would go beyond the purposes of the Act and might even defeat them, as Rolfe J has observed." 21 On the bank's case the mediation had concluded by 15 February 2001 when it lodged an application for a certificate under s 11 of the Act. Although Mrs Ciavarella thought it was continuing with further offers it seems to me that having regard to the bank's actions, it had, in fact, concluded. The relevant documents in these proceedings were prepared when the mediation session had already come to an end and are not a "follow up" to a mediation session. The preparation of the Thirteen Point Plan and the letter of 13 March 2001 do not fall within the scope of s 15 and accordingly the documents are admissible. Similarly the documents forwarded after the September mediation are also admissible. 32The above approach accords with that followed by the Tribunal in Diagne v Payman [2011] NSWADT 2006 and in Kyluk Pty Ltd v The Bike Mason Pty Ltd & Anor [2007] NSWADT 96; see paragraph 15 in Diagne: (15)The purpose of section 69 is to facilitate and encourage frank and open settlement discussions during the course of mediation without fear of any admission or concession being later used to disadvantage a party in the event that mediation is unsuccessful. This section confers statutory protection to the "without prejudice" discussions held during the course of mediation; however, as was held in Kyluk Pty Ltd v The Bike Mason Pty Ltd and Another [2007] NSWADT 96 a settlement agreement reached after mediation does not fall within the ambit of section 69 and accordingly is able to be considered in relation to an application for a costs order following hearing. Similarly, as is the case here, a settlement agreement entered into by the parties which records the terms agreed following a mediation process is able to be taken into account for the purpose of determining any relevant disputed issue in subsequent proceedings. 33Paragraphs 22, 27 and 28 of the mediation agreement set out the agreement of the parties that any settlement agreement reached following mediation will be binding upon the parties, will not be confidential or privileged, and will be capable of being enforced in this Tribunal or in a court. The contention made on behalf of the applicants that the written settlement agreement entered into by the parties on 27 February 2014 cannot be considered by the Tribunal must accordingly fail. The document was created after mediation had been completed, it was expressly agreed that the document would not be considered as confidential or attract privilege, and it is clearly an exception to the provisions of section 69. 34Mr Soltan has also argued that, because Mr Jamal Gebara's name did not specifically appear as "applicant" at the head of the subject settlement agreement, and even though his signature was endorsed at the bottom on behalf of the first applicant, the agreement could only at best be effective as against the first applicant and not against Mr Gebara personally. 35Based upon the applicants' own evidence, the above contention must also fail. The fact that Mr Gebara's name was not separately set out at the head of the settlement agreement is of no consequence. 36A belated additional proposition was also made by Mr Soltan that Mr Gebara did not have proper authority to bind the first applicant; this proposition is also without merit. Mr Gebara is the sole shareholder of the company which in turn controls the first applicant, he attended at the mediation session as the representative of both applicants, he executed the mediation agreement and thereby accepted terms which were binding upon both applicants, and his role as the sole principal decision maker on behalf of the first applicant is expressly reinforced within the statements which were filed on behalf of the applicants after the mediation. It is also appropriate to note evidence which was also recently provided by Mr Gebara in City Convenience Leasing Pty Ltd -v- Boo [2013] NSWADT 268: (13)There have been tendered also on behalf of the Applicant witness statements by Mr Jamal Gebara and Mr Soltan. Mr Gebara's statement, among other things: a) Says that he was the founder and is the Chairman of the City Convenience Stores group ("CCS group"), one of the largest operators of convenience stores in Australia, and the main vehicle of which City Convenience Store Pty Ltd. The applicant company is an associated company and part of the CCS group. 37Somewhat surprisingly, in Boo (above), Mr Soltan had argued that an employed manager Mr Richardson did not have authority from Mr Gebara to bind the company to any agreement concerning market rent. In relation to such argument, the Tribunal had this to say: (21)To the extent that the Applicant contends that Mr Richerdson had no authority on behalf of the Applicant to make any agreement concerning market rent, there seem to me to be two situations which require the rejection of such a contention. First, making any such agreement would have been within his general authority as referred to by Mr Gebara and as I have quoted above: "...to act on behalf of the CCS group including CCL in relation to negotiations with various suppliers and lessors." Secondly, his ostensible authority from the Applicant clearly enough extended to making such an agreement, consistently with the general principles particularly as referred to in Pacific Carriers Ltd v BNP Paribas [2004] HCA 35; (2004) 218 CLR 451 especially at [36]; his job position and title and his involvements with the subject lease from 2010, particularly in relation to the sub-lease to MK Natural Therapy Pty Ltd in December 2011, the payment plan agreement itself and the exercise of the option in April 2013, point to his having been held out by the Applicant to have had authority to make on behalf of the Applicant an agreement with the Respondents concerning the actual amount of the rent in respect of the subject premises from 18 August 2012. 38There can be no doubt that, at the time of the mediation, Mr Gebara had both actual and ostensible authority to bind both the first applicant and himself to the settlement agreement. 39Very much at the "heel of the hunt", Mr Soltan also made an additional submission during the hearing that, because he had been prevented from participating in the second mediation session, the settlement agreement should not be honoured. He gave no reasons and provided no evidentiary support for this bald proposition, which is without any legal or evidentiary support and is rejected. 40Mr Soltan also submitted toward the end of the hearing that Mr Gebara's instructions which had been given to Mr Ahmad prior to his involvement in the negotiations were "given by an old man suffering stress and therefore are of no effect". This submission belies the detailed statements provided by Mr Gebara in these proceedings and the recognition by others that he remains the decision maker on behalf of the first applicant. There is no evidence to support the assertion that he is suffering stress (to the extent that this would be seen as a determinative factor) or that he is otherwise incapable of entering into binding legal arrangements. 41For the above reasons, the Tribunal finds that the settlement agreement is binding upon the parties and that it is appropriate that orders are made to give effect to its terms. 42The respondent seeks orders that the parties bear their own respective costs of the proceedings up to and including 3 March 2014, but that the applicants be jointly and severally liable to pay the costs of the respondent on or from 4 March 2013. 43In relation to the costs application, it is appropriate that the Tribunal here records its view that, in the absence of any further evidence or submissions made, the behaviour on behalf of the applicants in failing to honour the terms of the settlement agreement and thereafter seeking to disavow its terms and to continue to litigate this matter, coupled with the unmeritorious arguments put forward in relation to the subject issue as to whether or not a binding settlement agreement had been reached, it would be fair to make a costs order in the terms sought by the respondent. Accordingly, the Tribunal will make orders that the applicants are jointly and severally liable to pay the respondents costs of the proceedings on and from 4 March 2013 unless the applicants satisfy the Tribunal that it would be inappropriate to do so. The applicants should be permitted an opportunity to respond and provide concise reasons as to why such an order should not be made. 44Accordingly, the applicants will be allowed seven days from the date of publication of this decision in which to make written submissions of no more than 500 words in total as to why such a costs order should not be made. ORDERS 45The Tribunal declares that there is a binding settlement agreement between the first applicant, second applicant and respondent arising from the written agreement dated 27 February 2014. 46The application is dismissed. 47Each party is to bear its own costs of the proceedings up to and including 3 March 2014. 48Unless the applicants provide written submissions limited to 500 words in length to the Registry and to the respondent within 7 days of the date of these orders, the applicants are to jointly and severally pay the costs of the respondent relating to this application and the proceedings on or from 4 March 2014. 49In the event that submissions as to costs are provided to the Registry and to the respondent in accordance with order 4, the respondent may file and serve any further written submissions within 14 days of the date of these orders. The issue of costs on and from 4 March 2014 will then be determined upon the basis of written submissions filed. (signed) Kim Rickards Senior Member Civil and Administrative Tribunal of New South Wales 4 April 2014 I hereby certify that this is a true and accurate record of the reasons for decision of the New South Wales Civil and Administrative Tribunal. Registrar ********** I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales. Registrar DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 31 July 2014