Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan v Dublin Group Pty Ltd and Jenny Banic (Costs) [2014] NSWCATCD 148

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan v Dublin Group Pty Ltd and Jenny Banic (Costs) [2014] NSWCATCD 148 Decision date: 23 July 2014 Jurisdiction: Consumer and Commercial Division Before: G Mullane, Senior Member Decision: 1.The Second Respondent Jenny Banic must forthwith pay to the Applicants the sum of $21,000.00 (being $14,000.00 for their costs thrown away in respect of the days for hearing original fixed for this matter and others and $7,000.00 being one half of the costs for Counsel and Solicitors for the hearing on 25 November 2013 and 28 January 2014). Catchwords: Retail leases dispute - Costs Legislation Cited: Retail Leases Act 1994 Civil and Administrative Tribunal Act 2013 Administrative Decisions Tribunal Act 1997 Category: Principal judgment Parties: Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan (Applicants)

Dublin Group Pty Ltd (First Respondent) Jenny Banic (Second Respondent) Representation: Thornton's Lawyers for Applicants; No submissions provided by the Respondents File Number(s): COM 14/01346 Publication restriction: Nil

reasons for decision

INTRODUCTION 1The substantive decision in these proceedings was delivered on 26 May 2014. At that time the Applicants were given until 16 June 2014 to lodge and serve any submissions and evidence in support of any costs order proposed. The Respondents had until 30 June 2014 to lodge and serve any submissions and evidence in response or in support of any costs order they seek. 2The Applicants' submissions were filed on 15 June 2014. The Respondents have not filed any submissions or evidence in relation to costs. 3The Applicants have informed the Tribunal that since the decision the First Respondent Dublin Group Pty Ltd has been deregistered. Accordingly, no orders can be made against the Frist Respondent. 4In the Orders in the substantive proceedings the claim for damages was dismissed for want of prosecution. It was intended that that would be a more appropriate result than a verdict for the Respondent on that issue because it would still leave the issue of damages open to the Applicants if they wished to bring the claim again, subject to the limitation period. 5The solicitors for Applicants sought to have the Tribunal change the order regarding the damages claim, but the Tribunal is not willing to do so. 6With regard to the costs issue the final hearing was on 25 November 2013 and 28 January 2014. There were initially three days set aside for the hearing (30 September and 1 & 2 October 2013) in conjunction with two other matters that were listed for hearing together with this matter. The reason they were listed together was that all three matters concerned a tenancy of the same premises in Oxford Street, Darlinghurst by Dublin Group Pty Ltd and Jenny Banic was guarantor for Dublin Group Pty Ltd under the lease. 7The difference was that the landlord originally was Ranko Despot and subsequently the premises were acquired by the Applicants. There were claims by Ranko Despot for rental, by the Applicants for rental and damages for breach of the lease and there were also claims by Dublin Group Pty Ltd initially for damages for unconscionable conduct against the first landlord and against the Applicants. 8Three days were wasted at the beginning of the hearing. The reason for that was largely the responsibility of the Respondents. The main Affidavit that they relied upon was an Affidavit of Mr Banic. I have referred to the Affidavit elsewhere as about 300 pages. However, it is in fact about 400 pages. The Affidavit was served late. It did not have appropriate paragraph numbering. Some paragraphs went for pages and included annexures. It was a very unwieldy document. The other problem was that the Respondents did not separately identify what their claims were against the original landlord, Mr Despot, and those against the subsequent landlords. In addition, the Respondents did not identify what parts of the evidence related to the claim against Mr Despot and what parts of the evidence related to the claim against the other landlord. 9The proceedings were eventually adjourned. At the time the costs of the Applicants thrown away by the adjournment were assessed at $14,000.00. 10Subsequently in relation to the claim by the Respondents the unconscionable conduct claim was dismissed because of non-compliance by the Respondents with the directions of the Tribunal. 11The subsequent hearing of this Application took two days and resulted in a verdict for the Applicants in the sum of $5,628.71 for unpaid rental and outgoings.