BILEK and VATA INVESTMENTS PTY LTD - [2005] WASAT 153

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985

CITATION: BILEK and VATA INVESTMENTS PTY LTD [2005] WASAT 153

MEMBER: MR C RAYMOND (SENIOR MEMBER)

HEARD: 14 APRIL 2005

DELIVERED : 4 JULY 2005

FILE NO/S: CC 278 of 2005

BETWEEN: HALUK BILEK
Applicant
AND
VATA INVESTMENTS PTY LTD
Respondent

Catchwords:

Commercial Tenancy - Respondent successful in opposing application for mandatory injunction - Application for costs - Principles for award of costs

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA)

Commercial Tribunal Act 1984 (WA)
State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA)

State Administrative Tribunal Act 2004 (WA), s 9, s 87

Result:

Application refused

Category: B

Representation:

Counsel:

Applicant: Self-represented
Respondent: Mr C Williams

Solicitors:

Applicant: Self-represented
Respondent: Solomon Brothers

Case(s) referred to in decision(s):

Re Cooper and Boroondara CC [2001] VCAT 2429
Vasiliou v Australia's Country Homes Pty Ltd [1999] VSC 462

Case(s) also cited:

Nil

REASONS FOR DECISION OF THE TRIBUNAL:

On 25 February 2005 the respondent commenced proceedings against the respondent by application to this Tribunal, in which relief was sought relating to a retail shop lease entered into between the parties concerning premises known as Shop 1 Eillova Street, Wanneroo. On the same date the applicant applied for an interim order in the nature of a mandatory injunction requiring the respondent to remove locks from the doors to the premises, to allow the applicant access and continue business therein.
The interim application was set down for hearing on 15 March 2005 and on 18 March 2005 the Tribunal issued orders dismissing the application. As the respondent's then counsel, Mr Solomon, foreshadowed the making of an application for costs, directions were also issued for any application in relation to costs to be considered at the next directions hearing.
A further directions hearing was heard on 14 April 2005 at which the respondent formally applied for costs.
Counsel for the respondent put the application simply on the basis that as the successful party the respondent would ordinarily be entitled to be awarded costs. The respondent was not able to make any submissions.
The Tribunal's power to award costs is expressed in s 87 of the State Administrative Tribunal Act 2004 (WA) ("the SAT Act"), relevantly, as follows:
"87. Costs of parties and others
(1)Unless otherwise specified in this Act, the enabling Act, or an order of the Tribunal under this section, parties bear their own costs in a proceeding of the Tribunal.
(2)Unless otherwise specified in the enabling Act, the Tribunal may make an order for the payment by a party of all or any of the costs of another party or of a person required to produce a document or other material on the application of the party under section 35."
The effect of s 87(1) is that the starting point in a consideration of whether or not to award costs is that in the absence of any legislative direction each party bears its own costs.
The SAT Act contains no costs prescription relevant to the proceedings in question. Those proceedings were commenced under the Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) ("CTRSAA") which is the enabling Act for the purposes of s 87(1) above.
At no time has the CTRSAA made any provision in respect of costs. Prior to the coming into effect of the SAT Act and the State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) on 1 January 2005 the jurisdiction conferred by the CTRSAA was exercised by the Commercial Tribunal under the Commercial Tribunal Act1984 (WA). That Act was repealed by State Administrative Tribunal (Conferral of Jurisdiction) Amendment and Repeal Act 2004 (WA) ("Conferral Act").The Commercial Tribunal Act 1984 (WA) empowered the Commercial Tribunal (under s17) to make such order for costs as it thought fit.
The intent reflected in s 87(1) appears to be that if the enabling Act provides for costs to be awarded then the presumption that each party should bear their own costs does not apply. That general intent which can be evinced from the section does not sit comfortably with the scheme under which the Commercial Tribunal exercised jurisdiction under the CTRSAA. Further, s 87(1) would not appear to remove the presumption if the enabling Act was amended so as to no longer specify otherwise in relation to costs. The effect of the repeal of the Commercial Tribunal Act1984 (WA) is that there is no longer any specification in relation to costs as applying to proceedings under the CTRSAA.
It may well be that this is an unintended consequence. When one has regard to the Conferral Act and a sample of the various enabling Acts, it is apparent that the legislative has adopted a scheme under which any original or review jurisdiction has been transferred from whatever body previously exercised those functions to the State Administrative Tribunal, with as little consequential amendments as were necessary.
In any event, the discretion under s 87(2) is sufficiently broad to enable the Tribunal to take into account the practice which was followed in the exercise of the applicable jurisdiction prior to 1 January 2005. The practice of the Commercial Tribunal in relation to matters under the CTRSAA was that costs generally followed the event subject to the exercise of discretional factors.
As there is no specific cost provision applicable under either the SAT Act or the CTRSAA the starting point, when considering an application for costs, must be that each party should bear their own costs.
In considering whether there are reasons why that presumption should not apply each case must be examined on its merits.
In relation to this matter I consider that the following factors favour the award of costs.
1)It was generally the practice in the Commercial Tribunal for costs to follow the event, subject to relevant discretionary considerations.
2)The dispute concerns a commercial venture. There is something to be said for the approach that decisions on costs in commercial disputes should be made to promote certainty and responsibility in parties to their contractual obligations: Vasiliou v Australia's Country Homes Pty Ltd [1999] VSC 462. Consequently a successful party might reasonably expect that a costs award would be made in its favour.
The following factors militate against an award of costs.
1)Under a largely similar costs regime it was held in Re Cooper and Boroondara CC [2001] VCAT 2429 that great care should be taken in exercising a power to award costs in order to ensure that the Tribunal remained readily accessible to the public at relatively low cost, particularly having regard to the Tribunals obligations to act fairly and according to the substantial merits of the dispute and to conduct proceedings with as little formality and technicality, and to determine such proceedings with as much speed as the applicable legislation permitted. These are obligations also enshrined in s 9 of the SAT Act.
2)Although the dispute relates to a commercial lease it is one very much at the lower end of the commercial spectrum commanding a rental of only some $1000 per month plus outgoings of approximately $100, according to the applicant's papers.
3)The respondent does not present as a sophisticated operator, but rather as someone who might be described colloquially as "a battler". The applicant asserts in his application that the loss of profit per day as a result of being locked out of the shop is an amount of $200. The award of costs in proceedings involving less affluent sectors of the public might effectively deny access to the justice system.
Taking into account all of these factors I am not prepared to exercise my discretion to award costs in favour of the respondent. In the result, each party must bear their own costs in respect of the interim application and I order as follows:
1.The respondent's application for costs to be awarded against the applicant is refused.
2.Each party is to bear their own costs in respect of the interim application.
I certify that this and the preceding [16] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
___________________________________
MR C RAYMOND, SENIOR MEMBER