Doula Spirit Pty. Ltd. v Andrew Argyrou [2014] NSWCATCD 227

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Doula Spirit Pty. Ltd. v Andrew Argyrou [2014] NSWCATCD 227 Hearing dates: Application considered on the papers Decision date: 14 November 2014 Jurisdiction: Consumer and Commercial Division Before: J Smith, Senior Member Decision: The application for costs is dismissed. Each party is to pay their own costs. Catchwords: Costs, special circumstances Legislation Cited: Civil and Administrative Tribunal Act 2013, Retail Leases Act 1994. Cases Cited: Latoudis v Casey [1990] 170 CLR 534 Category: Costs Parties: Doula Spirit Pty Ltd (applicant) Andrew Argyrou (respondent) Representation: Solicitors: Bashi Hazard for the applicant David Sachs for the respondent File Number(s): COM 14/39370 Publication restriction: NIL

reasons for decision

APPLICATION 1. This is an application for costs made by the respondent in these proceedings. 2. The application was dismissed for lack of jurisdiction on 16 October 2014 and directions made at that time granted leave for the parties to agitate the issue of costs by filing and serving short written submissions. Both parties have filed short written submissions and neither party has sought a hearing on the issue of costs pursuant to the directions made on 16 October 2014.

RESPONDENT'S CASE 1. The respondent's submission set out a number of matters which it was claimed establishes "special circumstances warranting an award of costs". 2. Those matters were relevantly, 1. The parties entered into a commercial lease not a retail lease which ought to have put the applicant on notice that the claim was not a retail lease dispute, 2. The applicant's solicitor also acted for the applicant in preparing and reviewing the lease and should have considered whether the applicant conducted a business of the type listed in Schedule 1 of the Retail Leases Act 1994. 3. The applicant did not produce evidence (such as a business plan, audited financial statements, stock ledgers, etc.) to support the proposition that the business operated as a retail shop. 4. The applicant's argument in respect of its intentions for the change in business was not supported by evidence. 5. The respondent had raised the issue of lack of jurisdiction at the first directions hearing but the applicant persisted with its claim. 6. As the application was dismissed it must, by definition, have been misconceived or lacking in substance. 1. Further, the respondent argued that the applicant had conducted the proceedings in a manner that unnecessarily disadvantaged the respondent in that the applicant failed to provide independent evidence to corroborate its submissions. 2. In addition the respondent argued that the applicant had unreasonably prolonged the time taken to complete the proceedings by variously failing to refer the matter to mediation, rejecting offers of settlement made by the respondent, attempting to maintain a multiplicity of proceedings involving the same issues and failing to comply with Tribunal directions for filing and serving of documents. 3. Lastly the respondent asked the Tribunal to consider a potential personal bias by the applicant's solicitor and implications in that regard under Solicitor's Rule 17. 4. The respondent's submission was that the awarding of costs is compensatory not punitive and that the respondent has incurred considerable costs that have been entirely wasted.