Bavela Pty Ltd v Fusion Mastering Pty Ltd
[2013] NSWADT 23
•31 January 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Bavela Pty Ltd v Fusion Mastering Pty Ltd [2013] NSWADT 23 Hearing dates: 18 December 2012 Decision date: 31 January 2013 Jurisdiction: Retail Leases Division Before: Judicial Member Hon G Mullane Decision: In 125030: The application is dismissed.
In 125067:
1. The Respondents must pay the applicant a sum of $297,067.77 for unpaid rent and interest to 31 January 2013.
2.The Respondents must pay to the Applicant a sum of $8,000,00 towards the applicant's costs in the proceedings.
Catchwords: Retail Lease - Breach (non-payment of rent) - payment of first four month's rent postponed, but becomes payable if Lessee commits a breach of the Lease which is notified to the Lessee in writing by the Lessor. Validity of service of notice. Legislation Cited: Retail Leases Act, 1994
Administrative Decisions Act 1997
Civil Procedure Act 2005Cases Cited: Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC79 at 86-87
Esanda Finance Corp Ltd v Plessnig(1989) CLR131Texts Cited: Law of Contract (10th Ed) Seddon NC, Bigwood RA, & Ellinghaus MD, para 23.45;
Lang's Commercial Leasing in Australia CCH at para 26-630Category: Principal judgment Parties: Bavela Pty Ltd (Applicant in 125067)
Fusion Mastering Pty Ltd (First Respondent in 125067)
Geoff Alexander (Second Respondent in 125067)
Vanessa Doninguez (Third Respondent in 125067)Representation: Counsel
A C Casselden (Applicant)--
Morgan Lewis (Applicant)
No appearance (Respondent)
File Number(s): 125030, 125067
reasons for decision
INTRODUCTION
In file 125030 the Applicant is Lessee Fusion Mastering Pty Ltd and the Respondent is the Lessor, Bavela Pty Ltd. The Application filed 24 February 2012 raised a claim of alleged unconscionable conduct but that has been withdrawn and struck out.
The Applicant Lessee in those proceedings was represented at the Directions Hearing on 4 October 2012 when the proceedings in file 125030 and file 125067 were consolidated and listed for hearing together on 18 December 2012.
At the Directions Hearing, in file 125030, the Applicant Lessee was ordered to file and serve an Amended Application by 18 October 2012 and file and serve any affidavit evidence by 25 October 2012. But the Applicant Lessee did not file any Amended Application and did not file any affidavit evidence.
Exhibit A1 is a letter from Fusion Mastering Pty Ltd signed by the Second Respondent Geoff Alexander. The Registry received the letter on 3 December 2012. It is dated 30 November 2012. It states the company address as a Sydney address: 65 Marion Street, Leichhardt. The letter is addressed to: "The Appropriate Member, Administrative Decisions Tribunal".
The letter refers to proceedings 125030 and proceedings 125067 and advises:
"Due to a number of circumstances we have decided not to continue with this matter through the Administrative Decisions Tribunal."
It also states:
"As I now reside overseas, it is very hard to retain legal representation that is cost effective now that the company is no longer trading."
Also in the letter it is stated:
"I am unable to continue as the company is being wound up and I now reside outside Australia".
And,
"I would like to advise that I no longer wish to pursue this matter through the Administrative Decisions Tribunal as I am unable to defend the matter within the timetable set by the Court, as well as the matter has other contributing factors that I am advised sit outside the discretion of the ADT."
Exhibit A2 establishes that the respondent company Fusion Mastering Pty Ltd had not been wound up as at 3 October 2012, and as at that date the directors of the company were the Second and Third Respondents in these proceedings.
On 4 October 2012 at the same Directions Hearing, the respondents were all represented by a solicitor, Mr Dowdle, and the proceedings were listed for hearing with the proceedings in the File 125030 at 10am on 18 December 2012. At the Directions Hearing orders were made in 125067 for an appearance to be filed on behalf of the Second and Third Respondents by 18 October 2012 and the respondents to file and serve any Reply and any evidence by 22 November 2012.
In File 125030 the respondents have filed no evidence and in file 125067 no appearance has been filed on behalf of the Second Respondent or the Third Respondent. On 22 November 2012 Judicial Member Kim Rickards made orders confirming the listing of both matters for hearing on 18 December 2012 and striking out the unconscionable conduct claim of the Respondents in File 125030 because of the failure to file any evidence. Those orders were notified to the Respondents by letter sent that day to the Sydney address of the company (65 Marion Street, Leichhardt).
On the Hearing day at 10.05am, the Hearing was commenced. There was no appearance by or on behalf of any of the respondents. They were called outside the Hearing room and there was no response to the call.
The Tribunal is satisfied that the respondents were aware of the hearing and have decided not to participate.
DISPOSAL OF APPLICATION 125030 BY FUSION MASTERING PTY LTD
The Applicant Lessee, Fusion Mastering Pty Ltd, is aware of the Application being listed for Hearing, has provided no evidence, has decided not to participate in the hearing and has not appeared.
Accordingly, the Application 125030 is dismissed.
THE EVIDENCE IN APPLICATION 125067
The evidence before the Tribunal is relation to this Applicant comprises:
(1) 24/2/12 Application for original decision by Fusion Mastering Pty Ltd (File 125030);
(2) 17/5/12 Application for original decision by Bavela Pty Ltd (File 125067);
(3) Affidavit of George Cohen sworn 31 August 2012;
(4) Affidavit of Sid Lewinsky sworn 31 August 2012;
(5) Affidavit of Susan Maree Bellamy sworn 3 September 2012;
(6) Affidavit of Mary Yapoudjian sworn 23 October 2012;
(7) Affidavit of George Cohen sworn 24 October 2011;
(8) Exhibit A1 - Letter from Fusion Mastering Pty Ltd of 30 November 2012;
(9) Exhibit A2 - ASIC Database extraction dated 3 October 2012;
(10) Exhibit A3 - document from Bavela Pty Ltd being calculations of unpaid rental and accrued interest.
(11) Exhibit A4 - Affidavit of Service of Andrew NG Saad of service on Vanessa Dominguez of letter from Morgan Lewis of 18 May 2012 and Application for original decision in File 125067;
(12) Exhibit A5 - Affidavit of Service of Andrew NG Saad of service on Fusion Mastering Pty Ltd on 22 May 2012 of letter from Morgan Lewis of 18 May 2012 and Application for original decision in File 125067.
ORDERS SOUGHT IN 125067
The Applicant seeks the following Orders as against each of the three Respondents:
"a) The sum of $268,538.79;
b) Damages;
c) Consequential loss;
d) Interest at the rate of 15% calculated on a daily basis on any moneys due but unpaid by the Respondents to the Applicant pursuant to clause 17(g) of the Lease;
e) In the alternative to paragraph 18(d) above interest pursuant to Section 100 of the Civil Procedure Act 2005 (NSW); and,
f) Costs."
THE RETAIL LEASE
By the written registered Lease the Applicant Lessor leased to the Respondent Company as Lessee the retail shop premises at Campbell Parade, Bondi Beach for the period 28 October 2010 to 27 October 2015.
The Lease provides that the permitted use is as a:
"restaurant and retail sale of food and beverages, including alcoholic beverages, for consumption on and off the premises and the provision of entertainment consistent with this use."
THE GUARANTEE
The Respondents Vanessa Lorraine Dominguez and Geoffrey Tyler Alexander executed the Lease as guarantors of the Respondent Company. They jointly and severally guaranteed performance of the Lessee's obligations under the Lease. Clause 22(a) of the Lease provides:
"22 PERSONAL GUARANTEE AND INDEMNITY
(a) Guarantee and indemnity
In consideration of the lessor granting this lease to the Lessee, the guarantor indemnifies the Lessor against all claims, demands, liabilities, losses, damages, costs and expenses which the Lessor may suffer or incur consequent upon or arising directly or indirectly out of:
(1) any breach, non-observance or non-performance by the Lessee of any of the covenants, conditions or other terms contained in represented by, or the agreement embodied in this lease on the part of the Lessee to be observed and/or performed; or
(2) this lease being disclaimed by a liquidator or trustee in bankruptcy.
(b) Enforcement
The indemnity may be enforced by the Lessor without any steps to claim, enforce or recover against the Lessee; and
(c) Bankruptcy of lessee
If the Lessee becomes bankrupt or goes into liquidation, the guarantor must not prove in such bankruptcy or liquidation in competition with the Lessor; and the guarantor hereby authorises the Lessor;
(1) to prove for any and all moneys which the guarantor has paid pursuant to the provisions of the guarantee; and
(2) to retain and carry those moneys to a suspense account; and
(3) to appropriate in the discretion of the Lessor those moneys until the Lessor has received full and complete payment of moneys owing pursuant to the obligations the subject of the guarantee, and
The guarantor waives in favour of the loor any and all rights whatsoever he may have against the Lessor for the Lessee or any other person, estate or assets so far as may be necessary to give effect to any act, matter or thing the subject of the indemnity.
(d) Avoidance of lease
Notwithstanding anything else contained in this lease to the contrary, if this lease is terminated or otherwise rendered void, voidable, unenforceable or in any way inoperative in whole or in part, the liability of the guarantor remains as if the lease remained in force to the extent required to cover the performance of any obligations pursuant to the provisions of the indemnify.
(e) Other documents
The guarantor must execute any and all documents and instruments which may be required to complete or bring into effect the provisions of the indemnity.
(f) Bankruptcy and liquidation
If the Lessee becomes bankrupt or goes into liquidation and the trustee or liquidator disclaims this lease, the indemnity extends to any liability, claim, loss or damage, cost or expense incurred by the Lessor as a result of such disclaimer and the Lessor is not required, before calling upon the guarantor to make good such loss or damage, to prove or take any other steps in the bankruptcy or liquidation.
(g) Holding over
The indemnity continues during any period of holding over or other continued occupation of the premises by the Lessee whether by statute or common law or otherwise.
(h) Reinstatement of indemnity
If a claim that a payment to the Lessor in connection with this lease or this indemnity is void or voidable (including, but not limited to, a claim under laws relating to liquidation, administration, insolvency or protection of creditors) is upheld, conceded or compromised then the Lessor is entitled immediately as against the guarantor to the rights to which it would have been entitled under this indemnity, if the payment had not occurred."
BREACH OF THE LEASE AND TERMINATION
On or about 28 April 2011, the Respondent Lessee failed to pay rent falling due under the Lease on that date and did not subsequently pay rental as it fell due.
On or about 8 November 2011, a Director of the Lessor instructed a solicitor. A Notice of Breach was served on the Lessee on 8 November 2011 requiring rectification of the breach within 14 days. The Lessee did not rectify the breach.
On 25 November 2011 the Lessor took possession of the premises, which were then vacant. On 28 November 2011 a Notice Terminating the Lease was served on the Lessee on behalf of the Lessor.
It was not until 8 October 2012 that a replacement tenant was found, signed a lease of the property and entered into possession. The lessor does not claim loss of rental for any period after 7 October 2012.
THE RENTAL TILL 8 OCTOBER 2012
The rental for the first year (28 October 2010 to 27 October 2011) is calculated as follows:
Rental specified per Lease $275,000.00
Plus GST 10% $ 27,500.00
Total $302,500.00
The rental for the period 28 October 2011 to 27 October 2012 is calculated as follows:
Base rental for first year $275,000.00
Add 3% increase for second year per Lease $ 8,250.00
$283,250.00
Plus GST 10% $ 28,325.00
Total $311,575.00
The Lessor does not claim rental in respect of the period beyond 8 October 2012 because a new tenant was located and took possession of the property from 8 October 2012.
Accordingly, the rental for the period to 8 October 2012 is:
Rental for period 28/10/10 to 27/10/11 $302,500.00
Rental for period of 11 months
(28/10/11 to 27/9/12) $285,610.49
11 days to 8 October 2012 $ 9,520.32
Total Rental $597,630.81
POSTPONEMENT OF RENT FOR THE FIRST FOUR MONTHS OF LEASE
Condition 6 of Attachment A of the Lease provides:
"Despite Clause 4(a) of Memorandum 9562409Y, the payment of instalments of rent under this Lease is suspended for the first four months after the commencing date of this Lease, but any instalment so suspended becomes payable if the Lessee commits a breach of this Lease which is notified to the Lessee in writing by the Lessor"
Clause 19(a) of the Lease provides:
"19 Notices
(a) Notices to Lessee
Any Notice or other document or writing to be served delivered or given by the Lessor may be given by any officer, employee, agent or solicitors for the Lessor, and may be sent by e-mail, fax, courier or security post addressed to the Lessee at its address referred to in this Lease or to the premises or to such other address as the Lessee notifies the Lessor in writing."
Accordingly, the Lease requires any notice to be given to the Lessee, if given by post, must be by "security post".
The expression "security post" is not defined in the Lease. Nor is it defined in the annexures to the Lease. It appears that it refers to what is commonly called "registered post". However, it certainly does not mean "ordinary post".
The giving of the Notice of Breach by post did not comply with the requirement of Subclause 19(a) of the Lease that the Notice given to the tenant by post be sent by security post.
Accordingly, the Notice of Breach given under Clause 6 of Annexure A to the Lease, was not given in accordance with the requirements of the Lease, and was not effective to end the postponement of the liability of the Lessee to pay rental for the first four months of the Lease. Insofar as the Lessor's claim is for the first 4 months of the term of the lease, it must fail. The rental for those 4 months would have been $100,833.33. As a result the rental payable for the period to 8 October 2012 was only $ 279,225.48.
UNPAID RENT
The Lessor concedes rental payments that total $216,542.00, so the unpaid rent is only $280,255.48.
INTEREST ON UNPAID RENT
Subclause 17(g) of the lease provides:
"Interest on Overdue Moneys
Without prejudice to the rights, powers and remedies of the Lessor otherwise under this Lease, the Lessee will pay to the Lessor interest at the rate of 15% per annum, calculated on a daily basis on any moneys due but unpaid by the Lessee to the Lessor on any account whatsoever pursuant to this Lease. Such interest is to be computed from the due date for payment of the moneys in respect of which the interest is chargeable until payment of such moneys in full and to be recoverable in like manner as rent in arrears."
In Exhibit A3 the Lessee has calculated interest to 31 October 2012 at the rate provided in Subclause 17(g) to be $35,234.31. That calculation includes interest on the postponed rental for the first 4 months. It also involves some confusion as to the day of each month on which rental is payable.
An issue arises as to whether the rate of 15% per annum in subclause 17(g) is so high that the subclause is not a genuine pre-estimate of liquidated damages, but a penalty (See Law of Contract (10th Ed) Seddon NC, Bigwood RA, & Ellinghaus MD, para 23.45.).
It has been held:
"The question of whether a sum stipulated is a penalty or liquidated damages is a question of construction to be decided upon the term and inherent circumstances of each particular contract, judged as at the time of the making of the contract, not at the time of the breach ..."
(Dunlop Pneumatic Tyre Co Ltd v New Garage and Motor Co Ltd (1915) AC79 at 86-87.)
The High Court has held that the sum agreed to cannot be a genuine pre-estimate of liquidated damages if:
"It must necessarily exceed by a wide margin the greatest loss that can be suffered as a result of the breach in question."
(Esanda Finance Corp Ltd v Plessnig (1989) CLR131 at 148.)
In "Lang's Commercial Leasing in Australia", CCH Loose Leaf service, the author suggests that the interest on overdue payment should not exceed "the highest rate to compensate the Lessor adequately", and gives the example: "2% more than the highest overdraft usually charged from time to time by the principal bank used by the Lessor". They advise: "The more important issue is not to charge an extortionate or wholly excessive rate." (See Lang's Commercial Leasing in Australia CCH at para 26-630.)
The Lease is dated 1 November 2010, but commenced on 28 October 2010. The Lease provides that on the commencement of each of the second, third, fourth and fifth year of the Lease, the increase in the rent for the ensuing year will be 3% of the rent for the previous year.
As at 1 November 2010 the Cash Rate Target of the Reserve Bank of Australia was 4.5%. It was increased to 4.75% on 3 November 2010 and stayed at that level until 2 November 2011 when it commenced to decline and was reduced to 4.5%. By June 2012 it was 3.5% and on 3 October 2012 it was reduced to 3.25%. It has continued to decline.
The rate in subclause 7(g) is more than 3 times the Cash Rate Target at the time the lease was entered into. Any commercial rate of interest for mortgage loans was likely to be less than 7.5%, half of the rate specified in the subclause.
The Applicant has not provided any evidence that might suggest a rate of 15% was a genuine pre-estimate of damaged at a time when the cash target rate of the Reserve Bank was 4.5% and the Lease itself provided only 3% per annum as the inflationary increase in the rental over the 5 year term of the Lease.
The affidavit of Mr George Cohen, a director of Bavela Pty Ltd, sworn 31 August 2012, shows that rental payments were transferred directly by the Lessee to the cheque account of Bavela Pty Ltd with the Commonwealth Bank. The credit balance of that account varied during the period of non-payment of the rental from a minimum of $145,961.32 to $269,997.02. For most of the time there was more than $181,000.00 in the account. Interest was payable on that account, but unfortunately the evidence does not disclose what the interest rate was. However, it is clear that if the rent had been paid by the lessee into that account, as the lease required, it would have attracted interest at the rate applicable to that cheque account.
The Tribunal is satisfied on the limited evidence available that Clause 17(g) did not provide a genuine pre-estimate of liquidated damages. It imposed a penalty on the Lessee if the Lessee defaulted in payment of any amount payable to the lessor under the lease. The rate of interest grossly exceeded any loss the Lessor was likely to have suffered for not having the use of the rental amounts. Accordingly subclause 17(g) is unenforceable.
The Lessor seeks that if its claim for interest under Subclause 17(g) fails, instead the Tribunal award it interest for the period prior to the decision "pursuant to Section 100 of the Civil Procedure Act 2005 (NSW)".
Section 100 of the Civil Procedure Act 2005, is contained in Part 7 of that Act. Section 3, the definition section, provides that "court" in the Act includes "tribunal". Section 4 of the Act provides that Parts 3-10 of the Act apply to the courts referred to in Schedule 1: "in relation to civil proceedings of a kind referred to that Schedule in respect of that Court".
However, Schedule 1 of the Act does not include the Administrative Decisions Tribunal as a court to which Parts 3-10 of the Act applies. Accordingly, Section 100 of the Act does not apply to the Administrative Decisions Tribunal.
The Administrative Decisions Tribunal Act, 1997 (NSW), does not contain any provision giving power to the Tribunal to award interest on a debt or award of damages for a period prior to the decision of the Tribunal. However, Section 72A of the Retail Leases Act, 1994, provides:
72A Power of Tribunal to award interest
(1) When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid, interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect.
(2) If the whole or part of an amount claimed under a retail tenancy claim or an unconscionable conduct claim is paid during proceedings in the Tribunal on the claim, prior to or without an order for payment being made in respect of the claim, the Tribunal may order that interest be paid at a specified rate on the whole or any part of the money paid for the whole or any part of the period between when the cause of action arose and the date of the payment.
(3) The rate of interest specified by the Tribunal under this section must not exceed the rate at which interest is payable on a judgment debt of the District Court.
(4) This section does not:
(a) authorise the giving of interest on interest, or
(b) apply in relation to any debt on which interest is payable as of right whether by virtue of any agreement or otherwise, or
(c) affect the damages recoverable for the dishonour of a bill of exchange.
(5) On a claim for the payment of money, the Tribunal may not order the payment of interest under subsection (1) in respect of the period after the date on which an appropriate settlement sum (or the first appropriate settlement sum) has been offered unless the special circumstances of the case warrant the making of such an order.
(6) For the purposes of subsection (5), "appropriate settlement sum" is a sum offered by a party in settlement of a claim for the payment of money where the amount ordered to be paid (including interest accrued up to and including the date of the offer) does not exceed the sum offered by more than 10 per cent. Subsection (5) does not prevent an award of interest for the period before the settlement offer is made."
Subsection 100(1) of the Civil Procedure Act, 2005, which applies to the District Court of NSW provides that:
"1) In proceedings for the recovery of money (including any debt or damages or the value of any goods), the Court may include interest in the amount for which Judgment is given, the interest to be calculated at such rate as the Court thinks fit:
a) on the whole or any part of the money, and
b) for the whole or any part of the period from the time the cause of action arose until the time the Judgment takes effect."
Pursuant to section 72A of the Retail Leases Act 1994 (NSW) the Tribunal is satisfied that interest of 7% per annum on such rent as is from time to time outstanding is a reasonable estimate of liquidated damages and should be allowed. That interest has been calculated as follows, generally from data in Exhibit A3:
DATE
DUE
PAID
ARREARS
INTEREST
28/10/10
Nil
$50,417.00
Paid 8/10/10
(Credit
$50,417.00)
Nil
28/11/10
Nil
Nil
Credit
Nil
28/12/10
Nil
Nil
Credit
Nil
28/1/11
Nil
Nil
Credit
Nil
28/2/11
$25,208.33
Nil
(Credit $25,208.67)
Nil
28/3/11
$25,208.33
Nil
(Credit 0.34)
Nil
28/4/11
$25,208.33
Nil
$25,207.99
Nil
5/5/11
Nil
$20,000.00
$5,207.99
$ 33.84
13/5/11
Nil
$5,000.00
$207.99
$ 7.99
19/5/11
Nil
$5,000.00
(Credit $4,792.01)
$ .64
28/5/11
$25,208.33
Nil
$20,416.32
Nil
30/5/11
Nil
$5,500.00
$14,916.32
$ 7.83
1/6/11
Nil
$5,500.00
$9,416.32
$ 88.68
9/6/11
Nil
$5,500.00
$3,916.32
$ 14.45
23/6/11
Nil
$4,000.00
(Cr $83.68)
$ 11.86
28/6/11
$25,208.33
Nil
$25,124.65
Nil
11/7/11
Nil
$3,000.00
$22,124.65
$ 63.89
19/7/11
Nil
$4,000.00
$18,124.65
$ 34.71
28/7/11
$25,208.33
$4,000.00
$39,332.98
$ 32.15
2/8/11
Nil
$4,000.00
$35,332.98
$ 37.72
9/8/11
Nil
$4,000.00
$31,332.98
$ 47.43
18/8/11
Nil
$4,500.00
$26,832.98
$ 54.08
28/8/11
$25,208.33
Nil
$52,041.31
$ 51.46
5/9/11
Nil
$4,000.00
$48,041.31
$ 79.84
15/9/11
Nil
$3,500.00
$44,541.31
$ 92.13
28/9/11
$25,208.33
Nil
$69,749.64
$ 110.05
28/10/11
$25,964.59
Nil
$95,714.23
$ 401.30
28/11/11
$25,964.59
Nil
$121,678.82
$ 54.19
29/11/11
Nil
$75,625.00
$46,053.82
$ 23.27
1/12/11
Nil
$6,000.00
$40,053.82
$ 17.62
6/12/11
Nil
$3,000.00
$37,053.82
$ 38.30
28/12/11
$25,964.59
Nil
$63,018.41
$ 155.91
28/1/12
$25,964.59
Nil
$88,983.00
$ 373.63
28/2/12
$25,964.59
Nil
$114,947.59
$ 527.58
28/3/12
$25,964.59
Nil
$140,912.18
$ 500.51
28/4/12
$25,964.59
Nil
$166,876.77
$ 835.46
28/5/12
$25,964.59
Nil
$192,841.36
$ 957.49
28/6/12
$25,964.59
Nil
$218,805.95
$1,143.35
28/7/12
$25,964.59
Nil
$244,770.54
$1,255.44
28/8/12
$25,964.59
Nil
$270,735.13
$1,451.24
28/9/12 to 8/10/12 (11days)
$9,520.32
Nil
$280,255,45
$1,605.18
Interest to 31/1/13
$6,700.10
Totals
$496.797.45
$216,542
$280,255.45
$16,812.32
CONCLUSION
The conclusion is that the Respondents should be ordered to pay the Applicant Lessor a sum of $297,067.77 comprising unpaid rent of $280,255,45 and interest to 31 January 2013 of $16,812.32.
COSTS
The combined effect of Section 77A of the Retail Leases Act and section 88 of the Administrative Decisions Tribunal Act 1997 is that the Tribunal may make an order that a party pay the costs of another party.
But under section 88 the general rule is that each party pay the party's own costs. An order for costs can only be made where the Tribunal is satisfied it is Fair to make it having regard to the factors listed in subsection 88(1A).
The relevant matters under that subsection in this case are:
The respondents filed to file a Reply in accordance with the rules and later failed to comply with a direction to do so;
The Second and Third Respondents failed to file an appearance and later failed to comply with the direction that they do so;
The respondents failed to file any evidence and later failed to comply with a direction that they do so;
The respondents offered no admission of any aspect of the claim;
The respondents apparently had no grounds of defence in relation to the claim for unpaid rental of $280,255.45 but would have had grounds to oppose the amount sought by the applicant for interest;
The respondents put the applicant to proof of matters that were not disputed;
An additional directions hearing became necessary because of the failure of the respondents to comply with directions; and
By their conduct the respondents unreasonably prolonged the time taken to complete the proceedings.
The Tribunal finds that it is fair for the respondents to be ordered to pay $8,000.00 towards the Applicant's costs.
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Decision last updated: 31 January 2013
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