Batson Holdings Pty Limited v Rose

[2005] NSWADT 131

CITATION:	Batson Holdings Pty Limited v Rose [2005] NSWADT 131
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Batson Holdings Pty Limited RESPONDENT John Emmanuel Rose
FILE NUMBER:	035134 and 055009
HEARING DATES:	25/05/2005, 1/06/2005
SUBMISSIONS CLOSED:	06/01/2005
DATE OF DECISION:	06/14/2005
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Stay of proceedings
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Vodafone Pty Limited v. Supercall Pty Limited [2003] NSWSC 302 Cohen v. McWilliam [1995] NSWLR 476 National Australia Bank Limited v. Roberts [2002] NSWSC 1048 Law Society of NSW v. Boland [2001] NSWADT 35
REPRESENTATION:	APPLICANT D Phair, Solicitor RESPONDENT V D'Arcy, Solicitor
ORDERS:	1. The hearing in matters No 035134 and 055009 be stayed until 4-00pm Friday 9 September 2005; 2. The further continuation of this stay is listed for re-consideration before me at 10-00 am on Friday 9 September 2005; 3. The Respondent pay the costs of the Applicant of the stay application from 10 May 2005, such costs to be paid on an indemnity basis in relation to the hearing 1 June 2005; 4. The Respondent pay the costs of the Applicant thrown away by the vacation of the date fixed for hearing of the primary application 1 June 2005

General Nature of the Application

1 By formal Application, filed in matter No. 035020 (sic), the Respondent John Rose moved the Tribunal that the hearing of that particular matter, listed on 1 June 2005, be vacated on the basis that “until the Respondent is in a financial position to fund this case then these proceedings should be stayed until that time”. The Application also sought an order that “the question of costs be reserved until after the hearing of the substantive matter in this case”.

2 This formal Application was filed at my request, there having been previous directions hearings in which submissions had been made from the bar table which were unsupported by any formal application and also unsupported by any sworn evidence. I indicated that I would not hear that type of application from the bar table unless it was properly supported and formalised.

3 I heard the parties in some detail on 25 May 2005 and at that point of time I vacated the hearing date 1 June 2005 and stood the stay application over part heard to 1 June 2005.

4 This decision relates to that stay application. Suffice it to say that the application was strenuously and robustly opposed by counsel for the Respondent. In order to address the various submissions made it is necessary to go back in time by way of review of what has happened in the various matters involving the Applicant and the Respondent.

Background

5 By Application filed 11 March 2002 and allocated file No. 025027 Batson Holdings Pty Limited (Batson) sought various declarations and orders relating to the method of calculation of rent of premises located on the ground floor at 724 Darling Street Rozelle of which John Emmanuel Rose (Rose) was the owner/lessor and Batson the lessee. This Application included an unconscionable conduct claim. It was supported by an Application for an Urgent Interim Order which was listed for 13 March 2002.

6 The substance of 025027 was effectively a declaration of the correct method of the calculation of rent upon the exercise of an option, coupled with consequent orders and orders seeking the execution of a lease for the various option periods, a transfer, orders relating to outgoings and various other matters.

7 There is no need for me to review the history thus far of this application – suffice it to observe that these proceedings (025027) were ultimately heard by me and I delivered a Judgment on 28 June 2002 (Baston Holdings Pty Limited v. Rose [2002] NSWADT 110. In that Judgment I declared the rights and liabilities of the parties in accordance with that Judgment, I declared that the valuations provided by each of the parties had not been prepared in accordance with the relevant principles that applied to the calculation of current market rent having regard to the terms of the Judgment and the lease contract between the parties. Otherwise I dismissed the application with no order as to costs but, and importantly, I granted leave to restore the matter to the list within 28 days – the reason for this grant of leave was because the hearing which resulted in the Judgment 28 June 2002, dealt with a discrete issue, namely the identification of the appropriate method as to how current market rent is to be payable by the tenant upon exercise of the option to renew; and whether or not the valuations provided by each of the parties were in accordance with the appropriate method of calculation of the current market rent. It therefore followed that the Application itself required further attention by the parties, namely the production of appropriate valuations in accordance with the relevant principles that I identified in my Judgment and then, armed with those valuations, and assuming that they complied with the relevant principles, to determine what rent was payable at the relevant times and whether or not (as a result of that determination) moneys were to be paid by the tenant or refunded to the tenant.

8 At some point of time matter 025027 appears to have been “dismissed” – there is a note on the Tribunal file cover “dismissed 29/7/02” but from my looking through the voluminous Tribunal papers I am unable to see any formal reference to any such dismissal. But whatever may have been the case, and although file 025027 appears to have been archived, it was resurrected and allocated file No 055009.

9 035020 was an Application filed by Rose on 7 March 2003 in which he sought orders against Batson and Laundy Investments Pty Limited (Laundy) requiring those Respondents to “execute a consent to the registration of (a) strata plan” in relation to, inter alia, the same premises as referred to in re-numbered 055009. Those proceedings (035020) were in fact settled, but only in so far as the urgent interim order application, but not in relation to the primary application.

10 The primary portion of application 035020 related to an application by Batson and Laundy for relief against forfeiture, Rose (it was alleged) having issued a Conveyancing Act 1919 Section 129 Notice and it being alleged that Batson and/or Laundy were in arrears under the rental/outgoings terms of the lease contract. That matter was heard and determined by me by Judgment delivered 16 December 2004 (Rose v. Batson Holdings Pty Limited [2004] NSWADT 268). In that Judgment I refused to grant relief against forfeiture and ordered that the tenant give possession of the demised premises to the landlord Rose. An appeal has been lodged in respect of that decision.

11 There is yet another formal Application before the Tribunal. This is matter 035044 filed 7 May 2003, an application by Batson against Rose seeking an order that Rose execute a lease for certain periods, seeking an order that the rent be reviewed in accordance with my decision 28 June 2002 (in matter 055009), alleging various breaches of various clauses of the lease by Rose, seeking damages, interest and other orders. It is in these proceedings that Batson has filed, on 24 April 2004, a valuation report relating to the demised premises which Batson (through its counsel) contends is a valuation that complies with the principles set out in my Judgment 28 June 2002. This Tribunal file was also, for reasons not clear, archived on 18 September 2003 but was subsequently de-archived and the file renumbered 035134.

12 There appears to have been some administrative confusion relating to the status of each of the three files to which I have referred. Suffice it to say that for some time now all three files have travelled together, this being so even though 035020 was unarguably the subject of an appeal (although, it is true, that (subject to the result of that appeal) it may well be that there are other important aspects of that matter that will require re-visiting and determination). When 035020 was listed before me for directions 31 May 2004 I fixed it for hearing on 29 July 2004 and I also fixed for hearing 035134 for 23 August 2004. On 26 June 2004 the hearing dates were confirmed; on 29 June 2004 it was plain that no party was ready and the hearing of 035020 was re-scheduled to 13 August 2004; on that date those proceedings were again adjourned for hearing to commence 2 September 2004 and (and importantly) in 035134 the hearing date 23 August 2004 was vacated and the matter listed for mention on 2 September. It was plain by that stage that both parties, through their respective counsel, wished to defer 035134 until I had determined the issues in 035020. The reason for my recitation of this somewhat convoluted history is to support my rejection of the argument advanced by counsel for Batson to the effect that the hearing of 035134 had been somehow or other adjourned to the detriment of Batson and somehow in favour of Rose. I understand the frustration of Batson/Laundy and their legal advisers but the plain fact is that on 13 August 2004 both then briefed counsel submitted that 035134 should be adjourned pending the result of 035020. And, as I have stated above, my Judgment in that matter was delivered 16 December 2004.

13 At the risk of repeating myself, it would not be unfair to point out that the better part of 2003 and 2004 was taken up with various directions, adjournments and other activities in relation to 035020. The hearing on that matter took place over two days: 2 September and 6 October 2004, the decision was reserved and delivered 16 December 2004. Thereafter 035134 and 055009 were listed for directions on 24 January 2005.

14 On 24 January 2005 I directed that matters 035134 and 025027 (now 055009) be “consolidated and … heard together”. So, although all three files have travelled together (and from looking through the Tribunal’s files one can understand why – not only are the matters inter-related but also letters/documents have been (inadvertently) filed in 035020 simply because documents relating to the other two matters have been (inadvertently by their authors) given the wrong file numbers), administratively 035020 should now simply be passed on to the Appeal Panel and the other two files (035134 and 055009) can travel together and be heard together.

Further adjournments

15 A note (whether made by me on 24 January 2005 or shortly thereafter) indicates that I was informed by counsel for both parties that the issues to be determined were:

A. Whether the valuation(s) complied with my decision 28 June 2002

B. Whether the payments made by the parties, one to the other, are the correct payments that should have been made and, if not, what payments, should have been made, and consequent orders.

I was pressed by counsel for Batson to the effect that Rose had not filed any material in reply to the valuation material filed on behalf of Batson on 24 April 2004.

16 At this Directions hearing 24 January 2005 I directed the Applicant (Batson) to file and serve its affidavit/material by 14 February 2005, the Respondent to file and serve his affidavit/material by 7 March 2005. I consolidated both matters and directed they be heard together and I adjourned both of them until 10 March 2005 for further directions.

17 On 10 March 2005 I adjourned both matters for further directions before me on 8 April 2005, with liberty to either party to restore to the list on 4 days notice, subject to my availability. On this day Rose initially appeared himself. He informed me that the Family Court of Australia had “frozen my rights with regard to Lot 2” (being the demised premises) and that Laundy had made an offer to purchase four of the Lots, but subject to various conditions. Mr D’Arcy then appeared for Rose – he was obviously in some professional difficulty in obtaining appropriate instructions and I adjourned both matters (as I have said above) to 8 April 2005 with liberty to restore on four days notice.

18 On 8 April 2005 I noted that Batson had filed all its evidence and I directed the Respondent Rose to file and serve his affidavits by 9 May 2005, I adjourned the matter for further directions to 10 May 2005 and set it down for hearing on 1 June.

19 On 10 May 2005 counsel for Rose made lengthy submissions from the bar table as to the alleged impecuniosity of his client and his inability to fund the employment of a valuer to meet the requirements as I initially set out in my Judgment 28 June 2002. Various assertions/submissions were made and I indicated that I would not take evidence from the bar table but rather would require the matter to be regularised in a more formal manner. To that end I made the following further directions:

1. Direct that the Applicant Rose file and serve such material/affidavits as he may be advised should he wish to agitate an argument that these proceedings be stayed, any such application, material and affidavits to be filed and served no later than 18 May 2005.

2. Proceedings adjourned for further directions and the hearing of any such application to 2-00pm on 25 May 2005.

3. Costs reserved.

20 On 24 May 2005 Rose filed his formal stay application, supported by an affidavit sworn the same date (and (again inadvertently) stated to be in matter/file No. 035020). His counsel sought to tender that affidavit, to which tender counsel for Batson objected on the basis that it should have been filed in conformity with my directions, namely by 18 May 2005 and that it has not been served and that any document that had been served (by facsimile) was not the complete affidavit that was subsequently sworn and filed 24 May 2005. He initially expressed the view that he was not in a position to meet the affidavit but later changed his mind on the basis that he would prefer the matter to go on for hearing and he was prepared to cross-examine Rose. The affidavit was then tendered (Exhibit “A1”) various objections were dealt with and Rose gave oral evidence and was cross-examined on his affidavit.

21 At the end of the hearing on that day it became plain to me that there was a real issue of “justice” to be determined. It also was plain that, although Rose had sworn an affidavit and had given oral evidence and had been cross-examined, much of his evidence was challenged in cross-examination in circumstances where the documentation in support, if available, had not been produced. In addition it also was plain to me that the affidavit had not been put together in a terribly helpful manner and in a way that would normally be constructed in the case of a stay application. I formed the clear view that Rose should be permitted to “put his house in order” and I made the following orders/directions:

1. The hearing date fixed for 1 June 2005 be vacated.

2. This application (for a stay) to stood over part heard to 10-00 am 1 June 2005.

3. Liberty to all parties to file and serve such corroborative and/or other material as they may be advised, no later than 30 May 2005.

4. Costs of Batson of this application, and costs thrown away by the vacation of the hearing date, be reserved.

22 On 1 June 2005 no material had been filed on behalf of Batson but counsel for Rose sought to tender a bundle of material, including a copy of orders of the Family Court of Australia and various bank and other financial statements. Service of the latter documents had not been effected but rather I was informed that the bank and other statements had only been received by him that morning. Batson, through its counsel, again objected, but not so much as to prejudice but rather as to the fact that the documentation should have been made available no later than 30 May 2005 in accordance with the directions that I had made 25 May 2005. In all the circumstances I formed the view that I was unable to see any prejudice to Batson that could not be cured by an appropriate costs order and any consequent orders that may be necessary as a result of any findings that might ultimately be made on the primary issues. I therefore admitted into evidence as Exhibit “A2” this bundle of material. Again, Mr Rose gave oral evidence and was cross-examined.

Financial Circumstances of the Respondent

23 The evidence led by the Respondent, orally and in writing, shows a totally parlous financial position. Although he was robustly cross-examined and although his evidence is not, in many respects, supported by corroborative material, I have little doubt that his evidence relating to his financial position is evidence upon which I can rely in this application.

24 The Respondent is a non-practicing solicitor. He is a director and shareholder of Regis Tower Real Estate Pty Limited, the only other shareholder being his estranged wife, Popi Rose. The company conducted “a caretaker type business” at the Regis Tower Residential complex in Sydney. It was effectively conducted under the control of the Respondent until it went into voluntary administration on 17 September 2004. The details surrounding that are somewhat vague, but probably irrelevant in relation to this application. The administrator kept the Respondent on as the caretaker of the Regis Tower complex during which time he received a salary of about $1,100.00 nett per week.

25 However, in early February 2005 he was sacked as the caretaker. From that date the evidence shows that he not only lost the income as caretaker but the only income he now receives is $200.00 per week from a tenancy of Lot 3, 722-724 Darling Street Rozelle. He has, on the evidence, no other income. He says he has borrowed money from the Law Society and borrowed money from a friend.

26 The Respondent has an interest in 10 properties, together with an interest in certain moneys realised from the sale of another property. One of the properties in which the Respondent has an interest is the demised premises leased to Batson/Laundy. These various properties are conveniently set out in terms of paragraphs 3 and 4 of an application filed in the Family Court of Australia by his estranged wife Popi and which paragraphs were adopted in their entirety by the Family Court of Australia in an Injunction granted by that Court on 20 December 2004 in the following terms:

“3. That the Respondent Husband be and is hereby restrained from dealing with or otherwise disposing of any right title or interest in the proceeds of sale of the property Folio reference 24/192676 and situate and known as 736 Darling Street, Rozelle, NSW without the written consent of the Applicant Wife, until further order of the court.

4. That the Respondent Husband be and is hereby restrained from encumbering, charging, transferring, conveying, selling, dealing with or otherwise disposing of any right title or interest in the properties comprised in:

4.1 Folio 417/SP58946 known as lot 417/303-307 Castlereagh Street, Sydney, NSW;

4.2 Folio 501/SP61369 known as lot 501/317-321 Castlereagh Street, Sydney, NSW;

4.3 Folio 505/SP61369 known as lot 505/317-321 Castlereagh Street, Sydney, NSW;

4.4 Folio 459/SP61369 known as lot 459/311-315 Castlereagh Street, Sydney, NSW;

4.5 Folio 1/SP69867 known as Lot 1, 722 Darling Street, Rozelle, NSW

4.6 Folio 2/SP69867 known as Lot 2, 724 Darling Street, Rozelle, NSW

4.7 Folio 3/SP69867 known as Lot 3, 724 Darling Street, Rozelle, NSW

4.8 Folio 4/SP69867 known as Lot 4, 724 Darling Street, Rozelle, NSW

4.9 Folio 5/SP69867 known as 2 Red Lion Street, Rozelle NSW

4.10 Folio 6/SP69867 known as 2A Red Lion Street, Rozelle, NSW

without the written consent of the Applicant, until further order of the court.”

27 The Respondent’s evidence is that all of those properties are the subject of mortgages such that whatever rental income is derived is not sufficient to cover the mortgage payments. Of the above properties Lots 417, 501 and 505 are all leased, the first at $750.00 per week and the 2nd and 3rd each at $500.00 per week but in each and all cases the rental income does not cover the mortgage instalments. Lot 459 is vacant. Lot 1 is also vacant. Lot 2 is the demised premises – here the evidence of Rose was very strong and put in words on one syllable to the effect that the Applicant Batson had not paid rent since March 2005. Lot 3 is leased at $200.00 per week; Lot 4 is vacant and Lots 5 and 6 are vacated and are subject to Conveyancing Act Section 57(2)(b) Notices issued by the mortgagee.

28 Rose was vigorously cross-examined. He stated that he had paid to his wife child support in September 2004 in a lump sum, he strenuously adhered to his evidence that the Applicant had not paid any rent in relation to Lot 2 for April and May 2005 – the rent is $650.00 per week and would otherwise be payable to the mortgagee St George Bank. That mortgage is apparently in arrears.

29 Evidence was sought to be led through the affidavit relating to the terms of certain conversations allegedly held between the estranged wife of the Respondent and Mr Laundy. I rejected that material on the basis that it was led for the purpose of supporting a proposed submission that the Orders made by the Family Court of Australia on 20 December 2004 were based upon on incorrect premise. However, in oral evidence in cross-examination, the Respondent made it clear that Mr Laundy was making “offers” to buy certain of the Rozelle premises and that he, Rose, knew that by 10 March 2005.

30 The issues are further complicated by the fact that by letter dated 23 May 2005 other solicitors acting for Batson and Laundy advised the solicitor for Rose that a Notice of Intention to Quit had been served upon Rose on behalf of Batson and Laundy relating to the demised premises. It is worth quoting part of that letter:

“We enclose copy of letter and Notice of Intention to Quit which has been served by hand today.

The Lessee will pay to the Lessor the rent payable up to the date the Lessee vacates. The Lessee will also pay such outgoings as are properly payable under the Lease. The Lessee will be deducting costs of urgent repairs which the Lessor was requested to rectify but failed to do so. The Lessee will also take into account the bond paid under the Lease.

We have requested Proctor Phair forward to us the relevant documents relating to the calculation of outgoings and we would propose to work through what outgoings are properly payable by the Lessee. The Lessee does not accept that the amount of the outgoings referred to in Member Molloy’s decision of December, 2004 is the amount owing.

The Lessee will still be proceeding with the Appeal in the ADT as it has received Senior Counsel’s advice that it has strong prospects of success on the Appeal.

The Lessee has made the decision to vacate as it does not wish to remain a Lessee of the premises in view of the litigious attitude of the Lessor. A related entity of the Lessee has purchased 706 Darling Street Rozelle and will be conducting a bottleshop at such address. Another related entity of the Lessee is the Owner of Off-licence Retail 351616 and there is already a conditional approval from the Licensing Court to transfer such Off-licence Retail to 706 Darling Street.”

31 Also, by letter 23 May 2005 those solicitors wrote to Rose stating that Batson “intends to terminate its current monthly tenancy and we enclose Notice by our client terminating the tenancy on the 24 June 2005. The Notice can expire on any date in accordance with clause 12.4.3 of the Lease.” The Notice itself is also dated 23 May 2004 and states quite clearly that Batson “shall quit and deliver up the leased premises to (Rose) on 24 June 2005”. A further complicating factor is that Mrs Laundy has sought to re-locate the business situate at the demised premises (governed by the Liquor Act) by removing an Off Licence from Shop 18-20 Queen Victoria Building (owned by Mrs Laundy) to 701-703 Darling Street Rozelle and by terminating the like business at the demised premises Lot 2, 724 Darling Street Rozelle. The importance of that evidence is that the Applicant is seeking to terminate its lease contract with the Respondent such that the Respondent will be deprived of the benefit of the rental income from the demised premises.

32 It was submitted by counsel for the Applicant that the rent sworn to be in arrears was in fact the equivalent of the outgoings referred to in my decision on the relief against forfeiture issue dated 16 December 2004. It seems to me however that the oral evidence of the Respondent was not to that effect but rather that the rent payable for April and May 2005 had not in fact been paid. So, if I am right in the relief against forfeiture decision to the effect that the outgoings (referred to in that decision) had not been paid at the relevant time, then (unless they had been paid subsequently or unless the Appeals Panel holds that I was wrong in that conclusion) then it may well be that those outgoings are also in arrears. There is no need for me to make any further comment on that – I am content with the conclusion that the evidence on this stay application demonstrates clearly that the Applicant has not paid the rent for April and May 2005. In this regard I observe that on 25 May 2005 one of my directions was the grant of “liberty to all parties to file and serve such corroborative and/or other material as they may be advised …” and Batson did not file any material – in particular no material in answer to the oral evidence given by Rose on that day asserting non-payment of rent by Batson for April and May 2005.

33 On 1 June 2005 by Exhibit “A2” counsel for the Respondent put into evidence a bundle of documents, the nett effect of which demonstrates clearly, at least as far as this Application is concerned, that the available cash resources of the Respondent are negative. That material, although not in all cases up to date, clearly demonstrates impecuniosity and there is no evidence that is before me that would demonstrate any change in this financial situation subsequent to the closing dates on the various documents tendered.

34 There is no need for me to refer further to the financial evidence. It is plain, starkly plain, on the evidence, that the Respondent is, to put it mildly, quite strapped for cash and unless he has some windfall or somebody extends to him some “generosity of spirit”, then I accept his evidence that he is not able to afford to pay for a valuer to meet the valuation material filed by the Applicant in April 2004.

Family Court Orders:

35 I have set out above the terms of the Family Court Order 20 December 2004. In addition, the material before me demonstrates that the Family Court on 31 January 2005 made, inter alia, these orders:

“1. That the interim proceedings be stood over generally with liberty to either party to restore on 24 hours written notice.

2. That the Injunctions granted in terms of paragraphs 3 and 4 of the application of the wife in a case filed 20 December 2004 and continued on 23 December 2004 continue now until further order.”

36 There were subsequent orders of that Court made 28 February 2005 – there is no need for me (and it would probably not be appropriate) to set out the terms of all those orders here. However, relevantly, the orders were:

(A) “4.In respect of any real property owned by either or both of the parties that is the subject of a notice under section 57 of the Real Property Act, the parties shall do all necessary things and acts and sign all necessary documents to cause the property to be sold by private treaty upon the following terms and conditions:
4.1 That the agents upon sale shall be appointed by written agreement of parties within 7 days of these orders and failing agreement within 7 days either party may apply to the President of the Real Estate Institute to nominate an agent upon sale.

4.2 That the lawyers for the parties in the family court are to be appointed lawyers to act for the parties upon such sale.

4.3 That the price at which the property is to be sold is to be agreed in writing between the parties.

4.4 Any dispute in relation to the price is to be resolved by the agent appointed to sell.”

(B) “6. Order number 4 above shall be stayed in the event that the mortgagee issuing a section 57 notice gives written notice that it is not enforcing the section 57 notice.”

(C) “2That the nett proceeds of any sale pursuant to these orders be disbursed after the payment of any debt, of all sales costs including agent’s commission and legal expenses secured on the property as to:

(a) 10% to the wife;

(b) 10% to the husband; and

(c) that the balance be retained in a controlled monies account in the names of the parties by the solicitor for the wife AND in the event that there is on the record a solicitor for the husband on the date of completion of any such sale in the joint names of the solicitors for both parties and unless the parties otherwise agree in writing to remain in such account to abide further order of the Court.”

37 It has been strongly submitted to me by counsel for the Respondent in these proceedings that the Respondent is effectively in a “catch 22 situation” – the orders of the Family Court tie up his property and his ability to use that property but he does not have the funds to engage the services of an experienced Family Law practitioner to try and obtain some relief from the width and effect of those Orders.

38 The Respondent was vigorously cross-examined about these orders, even to the suggestion that he was making up the fact that the orders existed. I am satisfied that they do.

39 Dealing now with Order 3 made 20 December 2004, the Respondent gave oral evidence relating to 736 Darling Street Rozelle. It seems that this property was in fact sold – the settlement took place on or about 10 December 2004, the mortgagee was paid out, about $700,000.00 was paid to the brother of the Respondent and the Respondent received a nett balance of about $68,000.00. From that sum he paid out $10,000.00 to the mortgagee ANZ Bank in respect of other properties, a further $10,000.00 to another mortgagee, which payments reduced the balance to about $48,000.00 by the date of the Injunction 20 December 2004. His evidence went further – he volunteered that this money was the subject of a garnishee order issued in about April 2005 and the money has been seized by a Judgment Creditor. There was no supporting corroborative material filed in respect of that assertion. There is no particular reason (however) why I should not believe the Respondent on this aspect. If that evidence is correct, then the nett effect of order 3 is “nil”. In any event, whether or not the moneys are there or gone is irrelevant simply because the effect of order 3 is to “freeze” dealing with those moneys until further order. So, it cannot be contended that the moneys (even if available) are or could be made available to the Respondent to enable him to conduct the proceedings in this Tribunal.

Conclusion

40 Impecuniosity due to the ordinary vicissitudes of life is not a ground for granting a stay of proceedings. Impecuniosity cannot, as a general rule, be used as a sword by the impecunious party, although it may well be used as a sword by the other party on an application for security for costs. If I am right on that assessment then all the evidence relating to the impecuniosity of the Respondent through his own activities is irrelevant to the determination of this application. If impecuniosity was a ground for a stay then the Court system could not properly function.

41 It seems to me, however, that there are two possible exceptions to the impecuniosity rule. Firstly, where the impecuniosity is caused by or contributed by the actions of the other party. So, for example, its sits ill in the mouth of one party to say to another: “You cannot satisfy a financial obligation to me because I owe you money which I will not pay you but you cannot take that into account” – see Vodafone Pty Limited v. Supercall Pty Limited [2003] NSWSC302, an appeal from a decision of mine sitting as a commercial arbitrator where I held that in taking into account an amount that was required to be held by Advanced Communications Pty Limited I was entitled also to take into account the amount that Vodafone owed Advanced Communications – the Supreme Court and the Court of Appeal upheld that reasoning. By analogy it seems to me that, if I accept the evidence of the Respondent to the effect that the Applicant has not paid the rent for April and May 2005 (which evidence on this application I so accept) then at least part of the fee that a valuer may charge could well be met from those moneys. It is true that the demised premises are the subject of a mortgage to St George Bank, which mortgage is in arrears, but there is no doubt in my mind that the Respondent could approach that Bank and seek to obtain some leeway by way of additional financial accommodation to enable the Respondent to engage the services of a valuer and perhaps even to conduct these proceedings. After all, all the proceedings before me thus far have been robustly contested and it cannot be said that the Respondent would willingly vacate the field of battle.

42 The second exception seems to me to be where the financial affairs of a party are negatively impacted by some form of authority outside of his/her control. By that I do not mean some form of force majeure or something that may arise in the ordinary course of one’s life. In this case what has happened is that the Family Court of Australia has, for whatever reason, placed an injunction on the Respondent which Injunction in its terms prohibits him from “encumbering, charging, transferring, conveying, selling, dealing with or otherwise disposing of any right title or interest” in properties in which he has an interest. The disturbing thing about the Family Court Orders is that they do not seem to have any sunset clause or any mechanism which would enable the devastating consequences of them to be automatically brought back for re-consideration. It is not to the point that the Respondent can seek to move the Family Court for appropriate relief – that in itself is an expensive operation – but the Court itself seems content for the effect of those orders to remain without itself re-visiting them, even though it accepts, by its orders 28 February 2005, that there are all sorts of mortgagee problems that are likely to arise.

43 In my view, and with great respect, forms of injunction which have the effect of depriving a party from the ability to deal with their assets should not be made “until further order” but rather brought back for re-assessment at a future date.

44 The effect of these Family Court of Australia orders is that this Respondent, whose only income is $200.00 per week, is unable to deal in any way with his assets such that he is unable to even approach a mortgagee with a view to raising further funds in order to prosecute/defend the proceedings in this Tribunal, which proceedings go to the quality of at least one of the assets and the payment/income that may be available to the Respondent as a result of the determinations of this Tribunal.

45 Of course, the Respondent may not succeed in those proceedings. One cannot foresee what is likely to happen once all the evidence is available in admissible form and consistent with the principles that I set out in my decision 28 June 2002.

46 It was strongly submitted by counsel for the Applicant that the Respondent could and should have brought this application well before he did, at least shortly after February 2005 when he lost his job. He had not shown any attempt to regain the ground lost in the Family Court, by attempting to set aside the Family Court Orders or applying to the solicitor for the wife for release of part of the injunction. Counsel for the Respondent submitted that the evidence showed that the rent had not been paid for April and May 2005 and therefore (at least to some extent) the Applicant was the author of its own misfortune. He said that the Respondent wanted to go to the Family Court of Australia but that was a very costly exercise and that he simply could not afford it.

47 The Administrative Decisions Tribunal Act 1997 states (Section 3(b)) as one of the objects of the Act, “to ensure that the Tribunal is accessible, its proceedings are efficient and effective and its decisions are fair”. Section 73(3) requires the Tribunal “to act with as little formality as the circumstances of the case permit and according to equity, good conscience and the substantial merits of the case without regard to technicalities or legal forms”. Section 73(4)(c) requires the Tribunal “to take such measures as are reasonably practicable … to ensure that the parties have the fullest opportunity practicable to be heard or otherwise have their submissions considered in the proceedings”. Section 73(5) requires the Tribunal “to act as is quickly as is practicable” (a); “to ensure that all relevant material is disclosed to the Tribunal so as to enable it to determine all of the relevant facts in issue in any proceeding” (b); and requires a “fair and adequate presentation” of the cases for both parties (d).

48 In Cohen v. McWilliam [1995] 38 NSWLR 476 at 477, Priestley JA said: “The right of every man to a fair hearing before he is condemned lies at the root of the tree of justice”. That proposition is quoted with clear approval by the Court of Appeal in National Australia Bank Ltd v. John Edward Roberts [2002] NSW SC 1048. The Court of Appeal made it clear at [11] that “the particular facts, matters and circumstances before the Court require the closest of scrutiny in order for the Court to determine whether or not … a final hearing date should be vacated”. The Court made it plain [12] “as always the proper exercise of the discretion involves applying the principles to the facts, matters and circumstances of the particular case”. And at [13] “the position of the parties in terms of the application to vacate the fixture requires careful attention to detail”. The National Bank case involved complex proceedings in the Commercial List which had been on foot for some 20 months. The Court took into account the overriding purpose of the Supreme Court rules being [28] to facilitate the “just quick and cheap resolution of the real issues” in civil proceedings such that its “overriding purpose imposes an obligation on the Court to give effect to the overriding purpose when it exercises any of its powers”. On the facts before it the Supreme Court refused to stay or vacate the hearing date. At [30] the Court set out a number of bases being (inter alia): the background to the proceedings, the time which the proceedings have been on foot, the dilatory approach of the applicants “over an extremely extended time” to directions, the scant material grounding the application, the fact that the proceedings have been fixed for hearing for some 3 months and the Court’s view that “a competent legal team working apace and assisted by a timetable which will require … full discovery by the plaintiff, should permit these defendants (the moving parties) with sufficient time with which to be in a position to litigate the matters to be litigated in the final hearing”.

49 The problem in National Bank was a change of legal advisers [31]. But that is not the case here. Each case has to be looked at on its merits and assessed in terms of the background and the evidence that is before the Court/Tribunal. In my opinion the “due administration of justice” would not be served by forcing on the Respondent to a hearing in a matter which has already been the subject of a full-scale hearing on a preliminary issue in circumstances where the Family Court of Australia has by injunction restrained the Respondent from dealing with his assets such that it is impossible for him to even approach a mortgagee with a view to obtaining some financial leeway and where the evidence discloses that, on balance, such an application may well be favourably considered, particularly by the mortgagee over the demised premises. I cannot see that there would be any justice extended to this Respondent by forcing this matter on at this stage. Indeed, so to do would result, in my very respectful opinion, in a grave injustice to the Respondent by simply depriving him of any ability to present his case because of his impecuniosity and inability to deal with his assets as a result of the Family Court Orders.

50 I have weighed up carefully the prejudice that may be suffered by the Applicant against the prejudice that will assuredly be suffered by the Respondent. I am unable to see any prejudice that would be suffered by the Applicant that could not be cured by an appropriate final order (on the financial issues and on the assumption that the Applicant would be successful) and an appropriate order for costs in relation to the stay application.

51 In those circumstances in my opinion the Respondent is entitled to a stay, but not in the terms as sought in his Application but rather on more restricted terms as to time and requiring the matter to be brought back for re-assessment. In my view the Respondent is entitled to a short stay of these proceedings for two or three months with the matter being brought back for re-consideration and in the meantime the Respondent is encouraged to do what he can to alleviate the impact of the Family Court Orders such that his ability to conduct these proceedings in this Tribunal will not be unduly impaired.

52 One final point: counsel for the Applicant submitted that if he could not afford to conduct these proceedings then the same observation would apply to the appeal proceedings. I am unable to see the similarity. In the current proceedings before me the further conduct requires the engagement, at no doubt considerable expense, of a qualified expert valuer with the additional consequence that the valuer will, not only have to be paid for his/her valuation but also will need to be available for cross-examination at the hearing. The appeal, on the other hand, does not in any way require that sort of up-front expenditure – there is no need for me to refer to Administrative Decisions Tribunal Act Sections 113, 114 and 115 other than to observe that the practice and conduct of appeals is an entirely different animal to the conduct of a hearing at first instance which, by way of one difference only, generally requires evidence to be given (in this case by experts) coupled with cross-examination. In any event Rose is the Respondent to the appeal. I see no similarity.

Costs

53 The Applicant made it plain on 10 May 2005 and 25 May 2005 that it would be applying for an order for costs. Initially counsel for the Respondent conceded the Applicant’s entitlement. At the adjourned hearing 1 June 2005 that concession seemed to be, not so much withdrawn, but rather modified. He submitted that the Applicant should not get it costs from February (when the Respondent lost his job) because there had been negotiations between the parties and at that point he was still receiving rent.

54 It seems to me that the Applicant is properly entitled to its costs. The “special circumstances warranting an order for costs” are simply that on 8 April 2005 the matter was listed for hearing. It was not until 10 May 2005 that the Applicant made submissions from the bar table to the effect that the proceedings be stayed. As a general rule an application for a stay is a circumstance “out of the ordinary” and would warrant an order for costs in relation to that application. The concession initially made on 25 May 2005 was, in my opinion, correctly and properly made.

55 Next, and on any view, the submissions made from the bar table on 10 May 2005 should have been properly supported by affidavit material. I recognise the difficulties that confronted the Respondent and the difficulties that confronted his solicitor/counsel. But that does not alter the fact that stay applications should be properly made, with a formal Application filed and served supported by appropriate affidavit material.

56 Then, in order to permit the stay application to proceed I gave certain directions (set out above). The material filed by the Respondent was, not only filed out of time, but was (in my respectful opinion) inadequately put together and inadequately supported by corroborative material. These were not matters that were incapable of cure and the directions made on 25 May were intended to cure the inadequacies of the presentation of the Respondent’s case.

57 The corroborative material was not served in accordance with my directions (I did indicate that I would not require it to be filed and served but rather simply served) but was rather handed up in Court on 1 June. There may have been all sorts of reasons for that but the plain fact is that appropriate notice was not given to the Applicant of the content of the documentation although (again) there was no prejudice and no prejudice was submitted.

58 In all the circumstances I am of the view that the Applicant is entitled to a costs order from and including 10 May 2005. This is the appropriate date because it would seem that the rent for April and May 2005 has not been paid and that was the date of the Respondent’s counsel making, from the bar table, his unsupported application for a stay.

59 Counsel for the Applicant also submitted that costs should be awarded on an indemnity basis at least for the hearing 1 June 2005 on the basis that the hearing 25 May 2005 could have been completed on that day had Rose got his house in order and presented his material in admissible form and fully corroborated on that day. I accept that submission. All of the documentation relied upon by the Respondent was available to him prior to 10 May 2005 save for the letters from the Applicant’s other solicitors 23 May 2005 such that all material relied upon was available by 25 May 2005 – if it had all been produced in appropriate order and form there would have been no need for the adjourned hearing 1 June and in my opinion the Applicant is entitled to an indemnity order for that hearing.

Orders

60 I make the following Orders:

1. The hearing in matters No 035134 and 055009 be stayed until 4-00pm Friday 9 September 2005.

2. The further continuation of this stay is listed for re-consideration before me at 10-00 am on Friday 9 September 2005.

3. The Respondent pay the costs of the Applicant of the stay application from 10 May 2005, such costs to be paid on an indemnity basis in relation to the hearing 1 June 2005.

4. The Respondent pay the costs of the Applicant thrown away by the vacation of the date fixed for hearing of the primary application 1 June 2005.

61 This Tribunal has an inherent right to regulate its own procedures within the terms of the legislative parameters and its own Rules – see Law Society v. Boland [2001] NSWADT 35. Neither counsel sought to cavil with that observation. Provided that justice is extended to the parties then I am unable to see any reason why, in the discharge of that inherent right, the Tribunal should not grant a stay in appropriate circumstances. Some of the questions to be asked on any such application are:

1. Whether there is a good reason(s) advanced in favour of the stay.

2. Coupled with 1 above, whether the Application is properly supported by evidence in admissible form with corroborative material.

3. Whether there is any prejudice to the opposing party that cannot be cured by appropriate costs orders and/or monetary or other orders at the final hearing (if the other party is so entitled).

62 If the prejudice outweighs the advantages then a stay will not be granted. However, if the interests of justice are best served by the grant of a stay, then it should be granted. The circumstances in this case in my opinion weighed heavily in favour of the Respondent – the effect of the Family Court of Australia Orders was, and is, in my view so financially restrictive that he is deprived of the ability to conduct these proceeding such that, if he was forced on, he would not be able to contest the matter through no fault of his own. That, in my view, would be offensive to the legislative requirements of the Administrative Decisions Tribunal Act set out above and would also be offensive to the common sense view of the right to be heard, the right to be able to present one’s case and general notions of fairness and justice.