Beesly v Commissioner of Police, New South Wales Police Service

[2002] NSWADT 52

CITATION:	Dingwall -v- Matar & anor [2002] NSWADT 52
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Michelle Dingwall RESPONDENTS Mohamad Matar Brihan Matar
FILE NUMBER:	015096
HEARING DATES:	26/02/2002
SUBMISSIONS CLOSED:	02/26/2002
DATE OF DECISION:	04/05/2002
BEFORE:	Molloy GB - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Costs
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Gizah Pty Limited -v- AXA Trustees Limited (No 2) 2001 NSW ADT 164 Evans -v- Clayhope Properties (1988) 1 All ER 444 Cole -v- Jealous (5 Hare 51)
REPRESENTATION:	APPLICANT In person RESPONDENTS In person
ORDERS:	(1) I declare there to be in existence between the parties a Lease in accordance with Annexure "A" to this Order subject to the following dates being inserted therein: Item 1: 4.4.2000; Item 2: 3.4.2003; Option to Renew: A 4.4.2003 to 3.4.2006; D 4.10.2002; E 4.1.2003; Rent review date: 4.4.2001; 4.4.2002; 4.4.2003; 4.4.2004; 4.4.2005; (2) I order the Respondent to complete the Lease documentation in accordance with the above declaration, execute the Lease documentation, have same stamped and registered and deliver to the Applicant the stamped and registered original; (3) No order as to costs.

1 By Application under the Retail Leases Act 1994 filed 28 September 2001 the Applicant sought an order that the Respondent register a Lease executed by the Applicant.

2 The uncontested facts appear to be that the Applicant acquired an interest in a business known as Mangerton Corner Store situate at 71 St Johns Avenue, Mangerton. The registered proprietors of these premises were at all material times, and are, the respondents.

3 Without going into all the details it would seem that there were a number of changes of proprietorship of the business and by 21 July 2000 the sole remaining proprietor was the Applicant.

4 On 11 August 2000 appropriate alterations were made to the original Lease submitted by the solicitors for the Respondent, the Lease was executed by the Applicant and returned via the Applicant’s solicitor to the solicitor for the Respondent with appropriate moneys for stamp duty, registration fees and lessors’ costs.

Substantive Facts

5 From 11 August 2000 to the date of hearing it was clear that the Lease had not been registered, notwithstanding numerous requests made on behalf of the Applicant. Consequently, by Application filed in this Tribunal 28 September 2001 the Applicant sought an order that the Respondent register the Lease.

6 When the matter came before me it appeared that in reality the parties were not that far apart, if at all. Indeed, there was hardly any argument advanced by either party against the proposition that the Lease should be completed in various respects and I confess that I do not understand why it is that these matters had not been dealt with in an orderly fashion without the need for any application to this Tribunal.

7 Having discussed the matter with the parties it would appear that I could make by consent a declaration of the existence of a Lease in terms set out below together with an appropriate order.

8 Consequently, I make the following declaration:

I declare there to be in existence between the parties a Lease in accordance with Annexure “A” to this Order subject to the following dates being inserted therein:
Item 1: 4.4.2000
Item 2: 3.4.2003
Option to Renew: A 4.4.2003 to 3.4.2006
D 4.10.2002
E 4.1.2003
Rent review date:
4.4.2001
4.4.2002
4.4.2003
4.4.2004
4.4.2005

9 I order the Respondent to complete the Lease documentation in accordance with the above declaration, execute the Lease documentation, have same stamped and registered and deliver to the Applicant the stamped and registered original.

Costs

10 The Applicant applied for costs. The Respondent opposed the making of such an Order. The Applicant submitted that she had incurred considerable expenses, including the lodgment of a caveat and money expended for mediation, moneys expended for telephone and facsimile transmissions, moneys lost as a consequence of the current proceedings and emotional torment and stress. She submitted that the proceedings had a negative financial impact on her business, that the Respondent had been uncooperative and evasive and should have, in any event, carried out their obligations as and from 11 August 2000.

11 There was considerable force in those submissions. However, the Applicant was unrepresented. Orders for costs can only be made under Administrative Decisions Tribunal Act 1997, Section 88. Sub-section (2) indicates that where there are special circumstances warranting an order for costs (as to this see Gizah Pty Limited -v- AXA Trustees Limited (No 2) 2001 NSW ADT 164) then the Tribunal may determine by whom and to what extent the costs are to be paid and order the costs to be assessed pursuant to the Legal Profession Act or on any other basis.

12 In Evans -v- Clayhope Properties (1988) 1 All ER 444 it was held that the remuneration and expenses of a receiver appointed by the Court were not “costs of and incidental” to proceedings and could not be recovered from an unsuccessful defendant. In Cole -v- Jealous (5 Hare 51) it was held that the “costs and charges of executing” a Will do not include fines payable by devisees of copyholds.

13 It seems to me that the word “costs” when used in the context of Section 88 and in particular sub-section (2)(b) (which permits an assessment pursuant to the Legal Profession Act) means costs of legal representation which are capable of assessment pursuant to the ordinary rules of assessment of legal costs. Absent cogent and persuasive argument to the contrary, which was not advanced to me in this case, I am not persuaded that “costs” within Section 88 provide an entitlement to an unrepresented successful party, no matter what otherwise might be the merits of that party’s claim. It seems to me that Section 88 is directed to legal costs in the accepted use of that term and therefore in this case there can be no order as to costs.