Cozens v Coffs Harbour Yacht Club Ltd (No.2)

[2007] NSWADT 226

CITATION:	Cozens v Coffs Harbour Yacht Club Ltd (No.2) [2007] NSWADT 226
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Michelle Mary Cozens RESPONDENT Coffs Harbour Yacht Club Limited
FILE NUMBER:	065115
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 May 2007
DATE OF DECISION:	27 September 2007
BEFORE:	O'Connor K - DCJ (President); Fairweather R - (Advisory) Non Judicial Member ; Harrison B - (Advisory) Non Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease - Unconscionability
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Retail Leases Act 1994 Retail Leases Act 2003 (Vic) Victorian Civil and Administrative Tribunal Act 1998 (Vic)
CASES CITED:	Khodr v Foo Qan Eng Holdings Pty Ltd [2001] VCAT 5 The Cutting Edge Victoria v Industry Superannuation Property Trust Pty Ltd (2000) 16 VAR 282 State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre) (Retail Tenancies Costs Ruling) [2006] VCAT 1813 Townsend v Chief Executive, State Rail Authority [1999] NSWADT 104 Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150 Wood and anor v Bergman (No 2) [2003] NSWADT 175 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Singh v Solomon & Ors (No 2) [2005] NSWADTAP 58 Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 Calderbank v Calderbank [1975] 3 All ER 333 Armstrong Jones Management Pty Limited v Saies-Bond Associates & Associates Pty Ltd (No 2) [2006] NSWADT 120 Prasad & anor -v- Fairfield City Council [2002] NSWADTAP 2 Prasad & anor -v- Fairfield City Council [2002] NSWADT 69 Cripps & anor v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps & anor [2006] NSWCA 81
REPRESENTATION:	APPLICANT Ms C Perry, solicitor, Parry Carroll Lawyers RESPONDENT Mr S Campbell, solicitor, Fishburn Watson O'Brien
ORDERS:	1. That the respondent pay 70% of the applicant’s costs of the proceedings as agreed or assessed.; 2. Applicant’s applications to be listed for dismissal at the next directions day.

1 In its decision delivered 22 December 2006, following a hearing held on 7 December 2006, the Tribunal made the following rulings favourable to the applicant in proceedings brought under the Retail Leases Act 1994 (the Act or RL Act) against the respondent:

‘1. The applicant has a retail shop lease within the meaning of the Retail Leases Act 1994.

2. The original term was 3 years, and it has been renewed. The current 3 year period has been extended to 30 September 2008 as a result of the negotiations in connection with installation of furniture.

3. The original agreement did not include a term allowing the lessor to terminate without cause on 3 months’ notice.

4. The notice given by the respondent’s solicitor dated 14 March 2006 is unlawful.’

2 The Tribunal made the following orders:

‘ Order

1. Applications to be re-listed for further directions at the request of either party, any such request to be made not later than 2 February 2007.

2. Otherwise, the proceedings will be listed for dismissal.’

3 The Tribunal’s expectation at the time it gave its rulings was that they might facilitate the overall settlement of the disputes between the parties reflected in the applicant’s retail tenancy claim and unconscionable conduct claim.

4 The parties advised the Registry in March 2007 that they had been unable to resolve the case. The applicant made an application for costs. Directions were given with a view to the Tribunal disposing of the matter on the papers (see Administrative Decisions Tribunal Act 1997 (ADT Act), s 76). Submissions were filed in April 2007. Subsequently on 3 May 2007, the judicial member handling the directions list (Mr Molloy) noted that all submissions as to costs had been filed, and there are no further issues between the parties.

5 This decision deals with the costs application. The presiding member is responsible for the decision and the reasons in support.

6 The power of the Tribunal to award costs in proceedings is governed by s 88 of the ADT Act:

‘ 88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

7 As required by sub-s (3), the Act gives the Tribunal power to award costs (RL Act, s 77A); and provides that the Tribunal may award costs under s 88 of the ADT Act. Accordingly the principle found in sub-s (1) applies. The Tribunal may award costs ‘but only if it is satisfied that there are special circumstances warranting an award of costs’.

8 Courts’ powers to award costs are not circumscribed in this way. Ordinarily therefore, the award of costs is made in court proceedings on the basis of costs follow the event. In court proceedings, the applicant, having succeeded in respect of her submissions at hearing on 7 December 2007 going to matters fundamental to the dispute between the parties, could confidently have expected an order for costs in her favour.

9 The applicant’s first submission is that the Tribunal should desist from applying the approach reflected in its Practice Note on Costs first issued in May 2003: see now Practice Note 12, as amended. Instead it should embrace the principle of costs follow the event, at least in cases where the case involved a ‘difficult and novel’ question. Practice Note 12 states relevantly:

‘ Special circumstances that may justify a costs order

2. The following are some examples of special circumstances that may justify a costs order. The Victorian Civil and Administrative Tribunal Act 1998 costs provisions have been cited in a number of this Tribunal’s decisions and the relevant sections form part of the following list of examples. The examples are not exhaustive:

- whether a party has conducted the proceeding in a way that disadvantaged another party to the proceeding by conduct such as -

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse;

(ii) failing to comply with this Act, the regulations, the rules or an enabling enactment;

(iii) asking for an adjournment as a result of (i) or (ii);

(iv) causing an adjournment;

(v) attempting to deceive another party or the Tribunal;

(vi) vexatiously conducting the proceeding;

- whether a party has been responsible for prolonging unreasonably the time taken to complete the proceeding;

- the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law;

- in matters under the Retail Leases Act 1994 where a party lodges an unconscionable conduct claim instead of a retail tenancy claim and it is found that there was no basis for the unconscionable conduct claim;

- where an appeal is lodged and the Appeal Panel considers the appeal was without any real prospect of success.’

10 In addition to the outline provided by the Practice Note, there are many Tribunal decisions that deal with applications for costs made under s 88, especially in the Retail Leases Division.

11 Picking up on the reference in the Practice Note to the provisions applicable to proceedings in the Victorian Civil and Administrative Tribunal, the applicant refers to two VCAT decisions arising in its retail tenancies jurisdiction which she submits should be adopted in this Tribunal: Khodr v Foo Qan Eng Holdings Pty Ltd [2001] VCAT 5 and The Cutting Edge Victoria v Industry Superannuation Property Trust Pty Ltd (2000) 16 VAR 282. I should note that the primary costs provision in the VCAT legislation (the Victorian Civil and Administrative Tribunal Act 1998 (Vic)) is expressed a little differently to the ADT rule. The general rule is that ‘each party is to bear their own costs in the proceeding’ (s 109(1)) but the Tribunal has power to make an order (s 109(2)) but ‘only if satisfied that it is fair to do so’ having regard to a range of factors (s 109(3)). This Tribunal in its Practice Note has drawn on the factors listed in s 109(3) as providing a useful list of the factors that might be considered relevant in proceedings in this Tribunal. Not surprisingly, given the diversity of jurisdictions and scale of VCAT, that Tribunal now has an extensive body of case-law on the application of its costs discretion: see generally Kyrou & Pizer (eds) Victorian Administrative Law (1985-looseleaf) [V4030-4160].

12 As to the early history of the exercise of the costs discretion in the VCAT retail leases jurisdiction, see Pizer, Pizer’s Annotated VCAT Act (2001) at [4039.9]. The senior presiding judicial members had expressed the view that the commerciality of the jurisdiction, the inter partes nature of the proceedings and the complexity often found in the cases tended to support an approach to the exercise of the general discretion given by s 109(2) favouring costs follow the event. It will be seen that the cases relied upon by the applicant belong to this period. The Victorian Parliament in the new principal Retail Leases Act 2003 has specifically addressed, and essentially rejected, this thinking. The Victorian Act now provides relevantly:

‘92. Each party bears its own costs

(1) Despite anything to the contrary in Division 8 of Part 4 of the Victorian Civil and Administrative Tribunal Act 1998, each party to a proceeding before the Tribunal under this Part is to bear its own costs in the proceeding.

(2) However, at any time the Tribunal may make an order that a party pay all or a specified part of the costs of another party in the proceeding but only if the Tribunal is satisfied that it is fair to do so because-

(a) the party conducted the proceeding in a vexatious way that unnecessarily disadvantaged the other party to the proceeding; or

(b) the party refused to take part in or withdrew from mediation or other form of alternative dispute resolution under this Part.’

13 It will be seen that the special factors that may give rise to an order for costs in this class of proceeding have now been narrowly confined. VCAT (Judge Bowman VP) has recognised this in State of Victoria v Bradto Pty Ltd (Palace Entertainment Complex) and Tymbook Pty Ltd (Palais Theatre) (Retail Tenancies Costs Ruling) [2006] VCAT 1813 (1 September 2006) at [66]:

‘In essence, there was not a great deal of conflict between the parties as to the principles to be applied in relation to the operation of s.92 of the RLA . Clearly that section is designed to restrict the number of situations in which costs can be ordered. I agree that, whilst assistance can be gained from looking at various sections of the VCAT Act and the manner in which they have been interpreted, s.92 should essentially be viewed in isolation. Whilst it might be that, under both the RLA and the VCAT Act the starting point is that no order should be made as to costs and that each party should bear its own costs, the exceptions contained in s.109(3) of the VCAT Act , with the exception of (3)(a)(vi), do not operate. If I am to order costs in a matter brought pursuant to the RLA , I must be satisfied that it is fair so to do because a party conducted the proceeding in a vexatious way, and that such conduct unnecessarily disadvantaged another party to the proceeding.’

14 This Tribunal has consistently taken the view that a costs-follow-the-event philosophy, or something approximating to it, should not be adopted in its retail leases jurisdiction (an early case is Townsend v Chief Executive, State Rail Authority [1999] NSWADT 104) or in the other jurisdiction of the Tribunal that has a commercial flavour – State revenue review applications. In Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150 (Donald JM), which has frequently been cited since, an order for costs was made, the Tribunal being satisfied that it would be:

‘seriously unfair to the Respondent not to recover costs. In my opinion there was such a weakness in the merits of the case, a weakness recognised by the Applicant’s legal adviser from the outset, as to bring it close to a claim without real merit in the sense referred to in cases dealing with vexatious actions.’

15 There has been some recognition of the ‘commerciality’ argument in the Tribunal, but not to the extent reflected in the early Victorian case-law. In Wood and anor v Bergman (No 2) [2003] NSWADT 175 the Tribunal (Chesterman DP) said:

‘10 In Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164, at [29], the Tribunal defined ‘special circumstances’ as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’.

11 It is recognised that the Retail Leases Division is unique within the Tribunal, in that it alone deals with commercial disputes between parties who are engaged in trade and commerce for reward. In Gizah, at [22] and [33 - 34], the significance of this for costs orders was explained as follows. Whereas in the context of appeals from administrative decisions the requirement of ‘special circumstances’ might be interpreted so as not to discourage proceedings by a private individual on account of the risk of an adverse costs order, no such consideration should apply in the context of retail lease disputes. The ‘commerciality’ of the Retail Leases Division calls for an interpretation quite different from that which might be adopted in any other Division of the Tribunal.

12 These observations in Gizah were quoted with approval by an Appeal Panel of the Tribunal in the recent decision in Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 at [12-13, 28].

13 The proposition, however, that ‘special circumstances’ should be interpreted differently within this Division, because it deals with relationships of a commercial character, does not imply that costs should simply follow the event. This was made clear in Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [4].

14 In Alessa, it was said also, at [5-6], that where an application to the Tribunal lacked any conceivable merit in fact or law, this could constitute ‘special circumstances’ justifying a costs order under s 88 in favour of the successful respondent. It would be a situation where refusal to grant such an order would be ‘seriously unfair’. In such a case, the purpose of the costs order would be to prevent the ‘gross abuse’ of the Retail Leases Act by frivolous, vexatious and misconceived proceedings.’

16 The submissions also refer to Singh v Solomon & Ors (No 2) [2005] NSWADTAP 58, where it was said at [11]-[13]:

‘11 If costs are to be awarded in relation to the appeal, the requirement of ‘special circumstances warranting an award of costs’ set out in s 88(1) of the Administrative Decisions Tribunal Act 1997 must be satisfied. Section 77A of the Retail Leases Act makes this provision applicable in retail tenancy proceedings conducted in the Tribunal.

12 According to the case-law on s 88(1) in its application to proceedings under the Retail Leases Act, (see eg Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 and Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43), this requirement of ‘special circumstances’ applies both to decisions made by the Tribunal at first instance and to Appeal Panel decisions. ‘Special circumstances’ have been defined as ‘circumstances that are out of the ordinary, but without having to be extraordinary or exceptional’. It is not enough that the circumstances are ‘special’: they must also ‘warrant’ an order for costs. They may include factors connected with the nature of Appeal Panel proceedings. On account of the ‘commerciality’ of the Retail Leases Division, the interpretation of ‘special circumstances’ differs significantly from the interpretation that might be adopted in any other Division of the Tribunal.

13 Amongst the various types of situation that have been held to constitute ‘special circumstances’ in retail leases cases, one is of direct relevance to this case. This is where (a) the successful party in the proceedings has made an offer of compromise of the dispute before the conclusion of the proceedings; (b) the unsuccessful party has unreasonably rejected the offer; and (c) the terms of the offer were more favourable to the unsuccessful party than the orders made by the Tribunal. The Tribunal has held this situation to constitute ‘special circumstances warranting an award of costs’ by way of analogy with costs rules in the Supreme and District Courts and the principles laid down in Calderbank v Calderbank [1975] 3 All ER 333.’

17 A similar view to that found in para [12] of the above extract was more recently expressed in Armstrong Jones Management Pty Limited v Saies-Bond Associates & Associates Pty Ltd (No 2) [2006] NSWADT 120.

18 The applicant emphasised the reference to the jurisdiction’s interpretation of ‘special circumstances’ differing significantly from the interpretation that might be adopted in other Divisions of the Tribunal. I would, perhaps, put the matter a little differently. The particular characteristics of a jurisdiction may cause circumstances to come under consideration which are not found in, or are less relevant to, other jurisdictions of the Tribunal.

19 The applicant’s submissions put forward the following consideration in support of an order in favour of the applicant:

- the applicant’s submissions were concise and economical

- it was necessary to engage legal assistance because of the complexity of the respondent’s challenge to her case (the argument that as the respondent occupied land under a Crown Lease that barred sub-letting, it only had power to grant a licence to occupy a part of its premises)

- the applicant’s lack of sophistication in legal matters

- the threat to her business if she had not contested the peremptory notice to quit (found by the Tribunal to be unlawful)

- her several attempts between March and July 2006 after receiving the notice to quit to have the respondent desist on the basis that she had a secure right of occupation with some years to run

- ‘contraventions’ of the Practice Note.

20 The applicant’s submissions said in the last paragraph:

‘it is submitted that the Tribunal should award the Applicant costs of the proceedings on an indemnity basis or as agreed or as assessed. In the alternative, the Applicant, incidental to the judgment claims compensation under s 34 of the Retail Leases Act 1994 for disturbance, together with breach of the covenant of quiet enjoyment, breach of the implied covenant not to derogate from the grant under the Lease and breach of the obligation of co-operation and good faith and unconscionable conduct. The Applicant asserts that the evidence in such proceedings will establish that the conduct of the Respondent has been unconscionable and vexatious constituting special circumstances for the purposes of this costs application. Pending mediation, and if necessary the ultimate determination of these issues by the Tribunal, the Applicant, in the alternative, seeks the question of costs to be stayed pending determination of those aspects of the Applicant’s claims as yet untested but which are consequential to the determination of 22 December 2006.’

21 The following comments made at Appeal level in Prasad & anor -v- Fairfield City Council [2002] NSWADTAP 2 go to the imbalance that may exist between a lessee and a lessor, and the grant of costs in relation to orders obtained in preliminary proceedings:

‘51 We share the lessees’ concern about the failure of the decision to expressly address the outcomes of the preliminary hearings. This was not a case in our view where the costs issues could properly be disposed of by such brief reasons. There had been changes in the constitution of the hearing, with the result that Judicial Member Fox heard the main case but other members had heard many of the preliminary matters. Costs applications had been expressly reserved on at least one occasion. The Judicial Member gave a bundled-up response to what had been a drawn out and complicated piece of litigation. There had been issues pressed and time taken up by the lessees on issues on which they did not succeed (principally the collusion allegations). On the other hand the lessees were significantly successful in relation to their original claim.

52 Similarly the hotly-contested preliminary motions had been decided substantially in favour of the lessees. Plainly a council has greater capacity than a small tenant to draw out litigation through interlocutory motions and extended submissions and defences, which capacity might be deployed to drive the claimant out of the arena. It was clearly a case in which significant costs were being incurred by a small lessee in order to assert what they saw as their rights. (The lessees’ solicitors advised the Appeal Panel by fax 25 July 2001 that the lessees had incurred legal fees relating to its disputes with the lessor of $24,443.25 (1999-2000 financial year), $34,615.69 (financial year 2000-2001) and the appeal costs estimate was $4,510. Whether all these costs would be recoverable under a costs award is another question, but on any view the legal costs incurred by the lessees in recent years - we are told all pertaining to this dispute - involve a very substantial amount, over $65,000.)

53 The Tribunal should have given express consideration to these issues. We are satisfied that the matters raised by Ground 2 were relevant considerations and that they were not considered by the Tribunal in its reasons for decision. In these regard we are satisfied that these considerations could constitute special circumstances for the purpose of s 88, a matter we have discussed already.’

22 On remitter, the Tribunal granted the lessee’s application for costs in respect of two interlocutory hearings and the loss of the first scheduled day of hearing because of the taking of points by the lessor that were plainly unmeritorious: Prasad & anor -v- Fairfield City Council [2002] NSWADT 69.

23 In her submissions, as previously noted, the applicant points to the several requests she made to the respondent, acting on its notice to quit, not to advertise her premises for lease (she refers to letters sent 8 March 2006, 6 April 2006, 20 May 2006, 2 June 2006 and in July 2006 (specific date obscured), the latter two letters from the applicant’s then solicitor, Mr Abbott. From the outset the applicant pressed the view that she had secure tenure and it was wrong to seek to oust her on three months’ notice without cause. The solicitor’s letters expressed this concern in a more developed way.

24 In Cripps & anor v G & M Dawson Pty Ltd and Another; G & M Dawson Pty Ltd and Another v Cripps & anor [2006] NSWCA 81 the Court of Appeal (Mason P, Santow JA, Brownie AJA) reversed a refusal by the Tribunal to grant a costs order to a successful lessee, saying per Brownie AJA:

‘55 While determination of costs is a discretionary matter and moreover a matter of practice and procedure, as the Tribunal itself recognised, unreasonable conduct that is out of the ordinary and conduct which is grossly unreasonable can attract exercise of the Tribunal’s power under s88 to award costs.

56 Here, the special circumstances relied upon by Dawson, said to be out of the ordinary, are twofold. First, Cripps failed to recognise the existence of Dawson’s lease, refusing to register it without proper cause.

57 Second, taking advantage of that failure, and being fully on notice of Dawson’s need for the lease to be registered and consent to its assignment given so that the sale of his business could proceed, in breach of the Act and of the lease Cripps withheld consent to that request for assignment of the lease. This was notwithstanding that Dawson had complied with the requirements of the Act, including in particular s41 thereof, covering consent to assignment. The result was the lost sale to Kilbane and the consequent damage.

58 Thus the commencement of the proceedings was prompted by the need to ensure that the lessor recognised both the existence of the lease and the obligation to consent to its assignment.

59 There followed five hearing days before the Tribunal at first instance, with further hearing days before the Appeal Panel, strenuously contested.

60 It is not necessary to determine whether in the circumstances the appellant committed equitable fraud. In my view it suffices that the conduct of Cripps and Jones, in relying upon their status as the registered proprietors of the freehold and the doctrine of indefeasibility of title to wrongly deny registration and consequently assignment of the lease, so acted as by their conduct to give rise to special circumstances; that is, circumstances that were clearly out of the ordinary and grossly unreasonable so far as the respondent tenant was concerned. On the one hand, the Tribunal correctly concluded that the respondent, through no fault of its own, has been placed in the situation where it has been forced to pursue this litigation. Yet it still failed to find special circumstances. With respect, I consider that the Tribunal was in error in failing to conclude that special circumstances here applied. For this purpose, it suffices that the circumstances are out of the ordinary. They do not have to be extraordinary or exceptional. While a finding of “serious unfairness” is not prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.’

25 The respondent in its submissions makes the following points:

- Its case that no lease existed was not unmeritorious, given the close consideration it received from the Tribunal and the Tribunal’s acceptance that the relevant personnel of the respondent had a genuine belief that the Crown Lease prevented them from granting a lease

- There is no conduct here of the kind listed in the Practice Note

- Lack of any reproach in the Tribunal’s reasons in relation to the respondent’s conduct of the matter

- The conditional nature of the Tribunal’s findings on the issue of whether the clause in the unsigned document of August 2002 purporting to allow termination without cause was effective.

26 Finally, the respondent’s submissions refer to the last paragraph of the applicant’s submissions, quoted above. The Tribunal agrees with the respondent that the applicant’s submissions are out of order. The Tribunal must focus only on the evidence that has formed part of these proceedings. The Tribunal also agrees that it would not be proper to leave to threatened future proceedings the resolution of the present costs application.

27 The Tribunal separated out the ‘lease’ question with the co-operation of the parties and sought to give a ruling in as constructive a tone as possible in the hope that the parties, as they had intimated, could move on and settle their dispute.

28 The concern I have which tends to align the case with the Cripps case is that the respondent here took the initial action without cause. This was a grave step to take against a person who had run the restaurant (sometimes with others) at the respondent’s clubhouse for 14 years. She had been seen as sufficiently capable to have had her occupancy renewed (whatever its precise legal status) on several occasions. Even if, as the respondent believed, it was legally entitled to move against the respondent without cause, action of this kind has little to commend it in dealing with a person who had run a business which had served for so many years the interests of the club and its members, their guests and visitors. It lacked a basic sense of humanity and fairness.

29 Like Cripps so too in this case ‘the commencement of the proceedings was prompted by the need to ensure that the lessor recognised … the existence of the lease’ ([58]).

30 Any owner or leaseholder of land who allows a retail business to occupy its premises on a long term basis in return for rent should take great care to ascertain whether it is bound by the Retail Leases Act, and conduct its relationship with the trader on the basis contemplated by the Act. The respondent at no stage took care in this way. The respondent chose to deal with a non-casual long-term retail business occupant of its premises paying rent on the convenient basis from its viewpoint that she merely held a licence. Lessors who show this degree of indifference to the law should not be immunised from the sanction of costs.

31 When the applicant protested between March and July 2006 over the attempt to force her out of the premises the respondent persisted in a fixed way with its view that it could do as it liked. The applicant was not sure of her rights, and at this point was very vulnerable to being wrongly evicted. She came to realise that she might have protections under the general law and the Retail Leases Act once she consulted a solicitor. By the time the matter proceeded to hearing in December the respondent, now having legal advice, had conceded the point that the applicant had a lease governed by the Retail Leases Act. The circumstances in this respect are very like Cripps.

32 The focus of the proceedings therefore became whether the clause in the document of August 2002 supplied a term to the relationship which, in effect, gave either party a right to terminate the lease without cause. Viewed from a commercial stand-point the likelihood of a person agreeing to a term of this kind is, to say the least, improbable. The Tribunal accepts that the respondent conducted itself in an efficient way at the proceedings. Nonetheless, the Tribunal is of the view that this is the kind of case that may well never have reached the Tribunal had the respondent dealt with the applicant from the outset on the basis that she had rights under the Retail Leases Act.

33 While I do not think that this case is as ‘out of the ordinary’ as the Cripps case, I am of the view that there is a case for a limited award of costs against the respondent. In my view the respondent should pay 70% of the costs incurred by the applicant of these proceedings.

Order

1. That the respondent pay 70% of the applicant’s costs of the proceedings as agreed or assessed.

2. Applicant’s applications to be listed for dismissal at the next directions day.