Brittain v Tylo Vision Pty Ltd and De Souza

[2011] NSWADT 110

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Brittain & ors v Tylo Vision Pty Ltd & De Souza [2011] NSWADT 110

Hearing dates:

5 May 2011

Decision date:

20 May 2011

Jurisdiction:

Retail Leases Division

Before:

K Rickards, Judicial Member

Decision:

1 The First Respondent Tylo Vision Pty Ltd and the Second Respondent Jerome De Souza are each jointly and severally liable to pay the sum of $46,957.43 to the Applicants as compensation.

2 The First and Second Respondents are also to jointly and severally to pay the sum of $1,903 to the Applicants as contribution toward the Applicants' costs.

Catchwords:

Compensation; costs

Legislation Cited:

Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997

Category:

Principal judgment

Parties:

Roger Keith Brittain, Janice Brittain, Louis Victor Muccillo, Maureen Anne Muccillo, Somchai Tongsumrith and Claire Louise Tongsumrith (Applicants)

Tylo Vision Pty Ltd (First Respondent)
Jerome George De Souza (Second Respondent)

Representation:

J Ngoy (Solicitor for Applicants)
No appearance for Respondents

File Number(s):

115046

REasons for decision

1. The Applicants in these proceedings, as lessors, seek orders for payment of money by the Respondents as lessees arising from alleged breaches of the retail lease agreement existing between the parties in respect of retail shop premises known as Shop 4, 216 Farnham Road, Quakers Hill NSW.

1. These proceedings were listed, after due notice had been given to the Respondents, for ex-parte hearing on 5 May 2011. Neither of the Respondents have filed an Appearance or appeared in these proceedings.

1. Having considered the evidence, I am satisfied that the Tribunal has jurisdiction and that the Respondents are liable for payment in respect of compensation and damages to the Applicants pursuant to section 72(1)(a) of the Retail Leases Act 1994 . I am also satisfied that the Second Respondent has guaranteed payment of all relevant debts by the First Respondent and is jointly and severally liable for same.

1. The Applicants have provided evidence which satisfactorily establishes that the sum of $32,635.53 inclusive of GST is due and owing in respect of rent arrears.

1. The term of the subject lease agreement expired some time ago, and the Respondent lessee was holding over upon a month to month basis. The premises were vacated on 4 February 2011 and the lessee was liable, pursuant to the terms of the lease, to pay a further one month's rent up to 4 March 2011. Accordingly, I am satisfied that the further sum of $9,772.37 inclusive of GST is also payable for due rent.

1. The calculations of interest in respect of unpaid rent in the sum of $1,090.83 appear correct.

1. Satisfactory arrangements were not made by the lessee for transfer of keys or securing of the premises upon vacation. I am satisfied that, pursuant to the terms of the subject lease agreement, the sum of $458.70 is a reasonable amount and is due and liable to be paid by the Respondents for locksmith charges.

1. A claim has been made for building rectification and painting expenses. This claim is based upon a rather general quotation provided by Built-Rite Constructions Pty Ltd ("Built-Rite") dated 20 March 2011. The total sum of $16,709 inclusive of GST is claimed for these expenses. As pointed out to the Applicant's solicitor during the course of the ex-parte hearing, there are some features of this part of the Applicants' claim which are difficult to accept as being fair or appropriate. The claim is based upon a quotation given by Built-Rite some time ago, but there have been no payments made pursuant to the quotation nor has any of the subject work been performed by Built-Rite. There is no evidence as to the cause of, or responsibility for, the entire scope of the works proposed. The quotation contains a number of rather large round figures set against generally described components of work to be done, and does not set out the manner in which these charges have been calculated. Additionally, the claim for painting appears to have been duplicated. The evidence provided does not provide a satisfactory basis for this part of the Applicants' claim. It is acknowledged that some work obviously needs to be done for which the Respondents are liable in order to bring the premises back to a bare state suitable for re-letting, but the true extent and cost of same is unclear. In the circumstances, I consider an allowance of the nominal sum of $3,000 to be appropriate for this aspect of the claim.

1. There is also a claim made for fees of the Applicants' real estate agent in a sum of $990, which is stated to be for "preparation of Court/Tribunal case". There is no express provision for payment of these fees within the terms of the subject residential tenancy agreement. It also appears that, by the very terms in which this claim is made, it is a claim for "costs" as set out within section 77A of the Retail Leases Act 1994 and section 88 of the Administrative Decisions Tribunal Act 1997 . The statutory presumption is that each party to proceedings should bear its own costs unless the Tribunal is persuaded that it would be fair to order costs to be paid by one party. There is no evidence before the Tribunal to indicate that it would be fair to order the Respondents to pay these costs, and they are accordingly disallowed.

1. There is also a claim for legal costs incurred by the Applicants in having their solicitors pursue recovery action against the Respondents. In considering this claim for costs, I again refer to the provisions of section 88 of the Administrative Decisions Tribunal Act 1997 ; the presumption is that the parties bear their own costs. I must be satisfied that it is fair to do otherwise. The provisions of section 88 of the ADT Act set out a number of factors which may be taken into account in considering whether it is "fair" to award costs. In this matter it is urged upon me that the Respondents should pay costs because they initially acknowledged that there was a debt due and promised to pay, that matters were further complicated and prolonged unnecessarily by the intervention of a relative who again promised to pay and caused various attendances to be undertaken by the solicitors including preparation of a Deed, but that in the end the commitment made to meet payment of the debt was not honoured.

1. Having considered the evidence, it is fair that the wasted costs incurred by the Applicants in considering the acknowledgement of debt and the proposals made for repayment by the Respondents, should be paid by the Respondents. I have been assisted by the interim tax invoice dated 24 February 2011 provided to the Applicants by their solicitors in determining that the sum of $1,903 inclusive of GST is properly payable by the Respondents to compensate the Applicants for these wasted costs. In relation to the balance of the Applicants' legal bill, there is no factor arising from the circumstances of this matter which displaces the usual convention that the parties bear their own costs.

1. Accordingly, Orders are made as below.

ORDERS

1. The First Respondent Tylo Vision Pty Ltd and the Second Respondent Jerome De Souza are each jointly and severally liable to pay the sum of $46,957.43 to the Applicants as compensation.

1. The First and Second Respondents are also to jointly and severally to pay the sum of $1,903 to the Applicants as contribution toward the Applicants' costs.

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Decision last updated: 20 May 2011