Bonzalie v Ersoy (No 2)

[2010] NSWADT 132

CITATION:	Bonzalie v Ersoy (No 2) [2010] NSWADT 132
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Eddie Bonzalie RESPONDENT Aslihan Ersoy and Neslihan Ersoy
FILE NUMBER:	095091
HEARING DATES:	20 January 2010
SUBMISSIONS CLOSED:	3 March 2010
DATE OF DECISION:	1 June 2010
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Plant v Meriton Properties Pty Ltd (No.2) [2010] NSWADTAP 20
REPRESENTATION:	APPLICANT In person RESPONDENT C Koyuncu,solicitor
ORDERS:	The Applicant is to pay 50% of the Respondents’ costs as are agreed or assessed upon a party/party basis

REASONS FOR DECISION

1 On 24 March 2010 the principal decision in these proceedings was made. The parties were then given an opportunity to file and serve written submissions as to costs, failing which there was to be no order as to costs.

2 The parties were broadly given a total period of 28 days within which any such submissions were to be filed and served. Only the Respondents have provided submissions.

3 The awarding of costs by the Tribunal is permitted by s.88 of the Administrative Decisions Tribunal Act 1987 ( “ADT Act”), but only if the Tribunal is satisfied that it is fair to do so. Otherwise, the usual principle is that each party is to bear its own costs.

4 There is a non-exhaustive list of factors set out within s.88 of the ADT Act which the Tribunal may take into account in determining whether it is fair to make a costs order in favour of a party.

5 Notwithstanding the width of factors which can be considered in considering this issue, the observation made by the Appeal Panel in Plant v Meriton Properties Pty Ltd (No.2) [2010] NSWADTAP20 needs to be borne in mind:

“[9] Care needs to be shown in not allowing the ‘fairness’ exception to become a vehicle introducing into the Tribunal the usual court practice of making orders for costs that follow the event.”

6 The Applicant’s original claim in these proceedings was for termination of the lease, but this was based upon a defective notice. The Applicant’s claim was later amended by leave to include a claim for the cost of repairs of damage to the premises for which the Respondents were claimed to be responsible. During the course of the hearing on 20 January 2010, it became apparent from the documents relied upon by the Applicant that he had already received payment for these repairs from his insurer. When this was brought to his attention during the hearing, the Applicant contended that he was bringing the compensation application on behalf of the insurer and that he could supply documentary support for this contention if permitted to do so. For that reason, an order was made granting leave to the parties to file and serve additional documents. Pursuant to this order granting leave, the Applicant filed a letter dated 4 February 2010 which had been sent by the Applicant’s insurer GIO to the Respondents after the hearing date demanding reimbursement to GIO of the sum which it had already paid to the Applicant for these same repairs.

7 The Applicant had also entered the premises and changed the locks shortly before the hearing on 20 January 2010. This led to an urgent application by the Respondents to be allowed back into the premises. Having considered the available evidence during the hearing, I determined that, although rent which was due and payable on 1 January 2010 had not been paid, the Applicant had not been entitled to take possession because, in summary, such action was premature.

8 The Respondents conceded that they had deliberately withheld payment of the rent due on 1 January 2010, and it was ordered that the Respondents were to make immediate payment of this outstanding rent as a condition of being permitted back into the premises.

9 Although the Applicant failed in his application to terminate the lease, and was found to have acted prematurely in re-entering the premises and taking possession, other factors which should also be considered in relation to costs are that the Applicant was unrepresented but did issue a termination notice and seek to rely upon breach of a provision in the lease both in commencing the proceedings and in subsequently taking possession of the premises, that he was owed rent at the time of taking possession, and that the taking of possession followed a deliberate decision by the Respondents to withhold rent without prior notice being given. On the other hand, the Applicant’s claim for compensation for repairs was clearly untenable and would have been obviously untenable to any reasonable person in the Applicant’s position.

10 This untenable claim for compensation brought by the Applicant clearly falls within the circumstances outlined in section 88(1A)(c) of the ADT Act and therefore attracts consideration as to whether it is fair to award costs in favour of the Respondents.

11 The fact that the Applicant’s termination application failed and that the Respondent was permitted to resume possession of the premises does not of itself justify a costs order, nor am I satisfied that any of the grounds for a costs order as set out within section 88 apply in relation to this component of the Applicant’s claim. Evidence and submissions concerning this aspect of the proceedings comprised a significant proportion of the actual hearing time and would necessarily have occupied a significant proportion of the time spent by the Respondents’ solicitor in preparation for the hearing of the application. I have considered the submissions made by the Respondents, but some I have disregarded because they assert or are based upon alleged facts which were not put into evidence at the hearing. I am also not satisfied, despite the Respondents’ submissions , that the Applicant did not have reasonable grounds to commence the application originally, or that he intentionally misled the Tribunal. On the other hand, as outlined above, the Applicant’s claim for compensation for repairs was clearly untenable and should not have been commenced or maintained.

12 Given that one component of the Applicant’s claim was clearly untenable and that the other major component, although unsuccessful, was not unreasonably commenced or maintained, I am satisfied that it is fair that the Applicant should pay a sum equivalent to 50% of the Respondents’ costs, as are agreed between the parties or assessed, upon a party/party basis.

Orders

13 The Applicant is to pay 50% of the Respondents’ costs as are agreed or assessed upon a party/party basis.