Curcio v AMP Warringah Mall Pty Ltd
[2013] NSWADT 247
•04 November 2013
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Curcio v AMP Warringah Mall Pty Ltd [2013] NSWADT 247 Hearing dates: 21 October 2013 Decision date: 04 November 2013 Jurisdiction: Retail Leases Division Before: M Chesterman, Deputy President Decision: 1. These proceedings are to be transferred to the Supreme Court under section 76A of the Retail Leases Act 1994.
2. The Applicant is to pay the Respondents' costs thrown away by virtue of his having commenced these proceedings in the Tribunal but subsequently sought and obtained an order transferring them to the Supreme Court.
3. The directions set out in Order 4 relate to the following questions: (a) whether these costs should be assessed on a party-party basis or as indemnity costs; (b) whether it is appropriate for the Tribunal to determine the amount to be paid; and (c) if so, what amount is to be paid.
4. The Respondents are to file and serve their evidence (if any) and submissions relating to these questions within fourteen days of the date of this decision. The Applicant is to file and serve his evidence (if any) and submissions in reply within a further fourteen days. These questions will then be decided 'on the papers' under section 76 of the Administrative Decisions Tribunal Act 1997 unless the Tribunal considers that a further hearing is required.
Catchwords: Retail lease - application for transfer of proceedings to Supreme Court - application for dismissal on grounds of want of prosecution - costs Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994Cases Cited: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1Category: Interlocutory applications Parties: Fabio Curcio (Applicant)
AMP Warringah Mall Pty Ltd (First Respondent)
Westfield Management Ltd (Second Respondent)Representation: Counsel
R Newell (Applicant)
G Connolly (Respondents)
L C Muriniti & Associates (Applicant)
Gadens Lawyers (Respondents)
File Number(s): 125173
reasons for decision
Introduction
This decision deals with three matters arising in proceedings instituted under the Retail Leases Act 1994 ('the RL Act'): whether the proceedings should be transferred to the Supreme Court under section 76A of the RL Act, whether in the alternative the proceedings should be summarily dismissed and whether a costs order should be made against the Applicant.
The proceedings were instituted by the filing of an Application for Original Decision ('the Application') on 22 November 2012. In it, the Applicant, Fabio Curzio, claimed monetary relief (damages, compensation and abatement of rent) against the two Respondents, AMP Warringah Mall Pty Ltd and Westfield Management Ltd. He maintained that they had breached a number of terms of a lease ('the Lease') of retail shop premises in Brookvale ('the Shop') that they had granted to him, and that they had engaged in unconscionable conduct in connection with the Lease.
By a letter to the Registrar dated 27 September 2013, the Applicant applied for an order that the proceedings be transferred to the Supreme Court.
The hearing of this application for transfer took place before me on 21 October 2013. Mr Newell of counsel appeared for the Applicant and Mr Connolly of counsel for the Respondents.
At this hearing, Mr Connolly contended that the proceedings should not be transferred to the Supreme Court, but should instead be summarily dismissed. He also contended that, whichever of these two orders I made, I should order also that the Applicant pay the Respondents' costs of the proceedings to date.
Relevant facts
The Lease commenced on 1 September 2009 and had a term of seven years. The base rent was $88,000 per annum and the permitted use was the retail sale of specified categories of food and drink. It was common ground that the Lease was governed by the RL Act.
In the Application, the total amount of compensation claimed was $900,000. The principal grounds advanced were that due to failures by the Respondents to conduct necessary repairs the Applicant's business had sustained substantial losses caused by leakage from premises situated above the Shop and that they had refused, in contravention of a clause in the Lease, to allow him to serve customers in a 'licensed seating area' adjacent to the Shop. The Application identified the terms of the Lease alleged to have been breached and set out the dates on which leakage had allegedly occurred.
The Application claimed further that the Respondents, in breach of a mediation agreement that the parties had signed on 8 May 2012 ('the Mediation Agreement'), had failed to tell the Applicant what amount they would offer for 'each category' of a claim that he had previously made and had failed to keep him informed about 'investigation and remediation of the water damage'.
Before the Application was filed, an accounting firm called Accounting First Financial Service Pty Ltd ('Accounting First') had received instructions from the Applicant to estimate the financial loss that his business had suffered due to the water leakages and to 'other problems' at the Shop which he had described to them. In its report, dated 18 June 2012, Accounting First estimated the total loss at $1,578,080. I admitted this report into evidence on the tender of the Respondents.
In a letter dated 4 December 2012 to the solicitors then acting for the Applicant (McBride Harle & Martin - hereafter 'McBride Harle'), the Respondents' solicitors (Gadens Lawyers - 'Gadens') pointed out that the amount of $900,000 claimed in the Application exceeded the amount ($400,000) specified in section 73(1) of the RL Act as the maximum that the Tribunal may award in proceedings under the Act. They sought advice as to whether the Applicant intended to abandon his claim as to the excess over $400,000 or would consent to the Application being struck out 'on the basis that the Tribunal does not have jurisdiction to deal with a claim for $900,000'.
In this letter, Gadens pointed out also that the Application had been filed even though no certificate of failed mediation had been issued by the Registrar of Retail Tenancy Disputes under section 68(1) of the RL Act.
Gadens further alleged that the Respondents could not fulfil their obligations under the Mediation Agreement because the Applicant had not complied with an obligation imposed by clause 2(1) of this agreement to provide to Gadens 'all documents substantiating the claim for replacement and repair of water damaged plant and equipment and loss of profits'. They also set out a detailed request for particulars of the matters alleged in the Application.
A number of consent orders made at a directions hearing on 6 December 2013 included an order to the Applicant to provide to the Respondents by specified dates both the documents described in clause 2(1) of the Mediation Agreement and particulars of the matters alleged in the Application, as sought in Gadens' letter of 4 December 2012. Further orders were to the effect that the Respondent, after receiving these documents, should file and serve a 'response' to the Application and that the parties should then arrange for their dispute to be mediated. The Tribunal noted that the question whether the Applicant would abandon the excess of his claim over $400,000 or seek an order of transfer to the Supreme Court was 'reserved'.
The Applicant did not comply with the consent orders requiring him to provide documents and particulars to the Respondents. The Respondents did not file and serve their 'response' and no mediation took place.
Neither party appeared at a further directions hearing set down for 4 April 2013. Subsequently the Registrar, at the Tribunal's request, advised the parties that there would be a directions hearing on 11 April and that if the Applicant did not appear the Application would be dismissed.
At the directions hearing on 11 April 2013, the Tribunal again ordered, by consent, that on or before specified dates the Applicant should provide further and better particulars of the matters alleged in the Application and the Respondents should file and serve a 'response'. It ordered also that the parties should seek to arrange the mediation ordered on 6 December 2012 before the next directions hearing.
On 25 June 2013, the Applicant filed a Notice of Representation stating that Mr Muriniti, of L C Muriniti & Associates, now represented him.
At the next directions hearing, on 27 June 2013, the Tribunal, having been advised that the Applicant wished to amend the Application, ordered him to file and serve particulars of his claim 'as ordered on 11 April 2013' and an amended Application on or before 22 July 2013. It ordered also that the Applicant should pay the Respondent's costs of the directions hearing (assessed at $1,000) and that the parties should attend mediation before the next directions hearing, to be held on 8 August 2013. It rejected an application by the Respondents for the Application to be dismissed on the ground of failure to comply with the Tribunal's orders.
At the directions hearing on 8 August 2013, the Tribunal admitted an affidavit sworn on the previous day by the Applicant. It included the following statements: (a) McBride Harle had filed the Application without giving him an opportunity to see it; (b) they had not informed him that it contained a claim for $900,000 or that the Tribunal's jurisdiction under the RL Act was limited to $400,000; (c) he believed that the figure of $900,000 was based on a 'general opinion' formed by his accountant; (d) McBride Harle had not informed him about the Tribunal's orders made at the earlier directions hearings; (e) after he terminated their retainer during April 2013, they 'procrastinated' in handing over his file to him; (f) further delays occurred because the preparation of financial statements relating to his business and of an expert report regarding his financial losses took up a good deal of time; and (g) this report would not be completed for 'several more weeks'.
At this directions hearing, order 2 made by the Tribunal was that the Applicant was to file and serve his expert report, his other evidence, an amended Application and particulars by 23 September 2013. Orders 3 and 4 were in the following terms:-
3. There will be no extension of time for order 2, unless the applicant is able to establish exceptional circumstances.
4. A failure to comply with order 2, and in the event no further extension of time is granted in accordance with order 3, the applicant's applicant will be dismissed for want of prosecution (sic).
The Tribunal also ordered the parties to mediate before the next directions date, ordered the Applicant to pay within 14 days the Respondents' costs of the directions hearing (assessed at $1,200), along with the costs of $1,000 previously ordered, and rejected a further application by the Respondents for the proceedings to be dismissed. It set down the proceedings for further directions on 3 October 2013.
On 27 September 2013, Mr Muriniti sent to the Registrar a letter advising that he had been instructed to apply to the Tribunal for an order transferring the proceedings to the Supreme Court under section 76A of the RL Act. He pointed out that the Application filed by his predecessors, McBride Harle, had sought damages of $900,000, clearly exceeding the Tribunal's jurisdiction, and advised that a report recently prepared by Accounting First estimated the Applicant's losses at $1,701,244. He further advised that if the proceedings were transferred under section 76A, the causes of action that would be pleaded in the Supreme Court would include unconscionable conduct and 'deceptive or misleading conduct'.
On the same day, Mr Muriniti wrote in similar terms to Gadens. In a reply dated 2 October, Gadens stated that the Respondents would oppose any order for transfer to the Supreme Court and would seek instead an order that the proceedings be dismissed with costs in their favour.
At the directions hearing on 3 October 2013, the Tribunal adjourned to 21 October the hearing of the Applicant's application for transfer.
At this adjourned hearing, the evidence that I admitted included a further affidavit by the Applicant, sworn on 3 October 2013. In it, he stated again that expert reports relating to his financial losses would not be available for some weeks. He referred to illness on his part (in relation to which he attached a medical certificate) as one of the reasons for this delay. He also alleged that during the negotiations preceding the grant of the Lease an agent for the First Respondent had deceived him by not mentioning that there was 'a history of water leakage' from the premises above the Shop.
I will now deal with the three matters that I identified at the beginning of this decision in the following order: (a) the Respondents' application for the proceedings to be dismissed; (b) the Applicant's application for them to be transferred to the Supreme Court; and (c) the Respondents' application for a costs order.
Relevant statutory provisions
The following provisions of the RL Act are relevant to the second and third of these matters:-
68 Disputes and other matters must be submitted to mediation before proceedings can be taken
(1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter.
73 Monetary limit on Tribunal's jurisdiction
(1) The Tribunal has no jurisdiction to make an order or orders in respect of a particular retail tenancy claim or an unconscionable conduct claim if the total of:
(a) the amount or amounts (if any) of money to be paid, and
(b) the amount or amounts (if any) of money to be declared not to be due or owing, and
(c) the value or values (if any) of the work to be done or the services to be performed,
under or by virtue of the order or orders would exceed $400,000 or such other amount as may be prescribed by the regulations, whether on a balance of account or after set-off or otherwise.
76A Removal of proceedings to Supreme Court
(1) A party to proceedings before the Tribunal for an unconscionable conduct claim, or partly for an unconscionable conduct claim and partly for a retail tenancy claim, may apply to the Tribunal to have the proceedings transferred to the Supreme Court.
(2) The Tribunal must transfer the proceedings if the Tribunal is satisfied that:
(a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court, and
(b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal.
(3) The Supreme Court has jurisdiction to hear and determine proceedings transferred to it under this section and may make any orders and do anything that the Tribunal may do in determining an unconscionable conduct claim or retail tenancy claim, as the case requires.
(4) The Supreme Court may exercise all the functions that are conferred or imposed by or under this or any other Act on the Tribunal to determine the unconscionable conduct claim.
77A Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.
The following provisions of the Administrative Decisions Tribunal Act 1997 ('the ADT Act') should also be quoted:-
73 Procedure of the Tribunal generally
(5) The Tribunal...
(g) may dismiss at any stage any proceedings before it in any of the following circumstances...
(ii) if the Tribunal considers that the proceedings are frivolous or vexatious or otherwise misconceived or lacking in substance, or...
(iv) if the Tribunal considers that there has been a want of prosecution of the proceedings...
88 Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) 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 it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or...
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment...
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings...
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
The Respondents' application for dismissal of the proceedings
The primary argument put by Mr Connolly in support of the Respondents' application for dismissal of the proceedings was that dismissal had already occurred pursuant to order 4 made by the Tribunal at the directions hearing on 8 August 2013 (see [20] above). He described this order as 'self-executing', pointing out that while the Applicant was permitted by order 3 to seek an extension of time for failure to comply with order 2 on the ground of 'exceptional circumstances', he had not done so before the deadline (23 September 2013) specified in this order.
While there is merit in this argument, I do not think that the terminology of order 4 (which is not wholly grammatical) is such as to make it clear that a failure by the Applicant to either comply with order 2 before 23 September 2013 or provide evidence of 'exceptional circumstances' before that date should result in immediate dismissal of the proceedings. It would not be fair to the Applicant to hold that this extreme consequence should follow from non-compliance with order 2 unless order 4 left it no doubt that this was to be the case. In my opinion, the leeway provided in order 3 for the Applicant to argue that there were 'exceptional circumstances' making compliance impossible or impracticable, coupled with the ambiguity of the phrase 'will be dismissed', precludes any decision that order 4 was 'self-executing'.
The remaining grounds on which Mr Connolly sought an order of summary dismissal were four in number: (a) that the Applicant's claim lacked 'particularity'; (b) that it was for an amount substantially exceeding the Tribunal's jurisdiction; (c) that the Applicant had failed to comply with the requirement of mediation imposed by section 68(1) of the RL Act; and (d) that the Applicant's failure to comply with directions made by the Tribunal or with requests for particulars made by the Respondents amounted to a 'want of prosecution' of the proceedings.
I am not impressed by the first of these grounds. The Application filed by the Applicant on 22 November 2013 described in quite a degree of detail the facts and circumstances on which he based his claim for damages. It identified a number of grounds of relief, referring to relevant provisions of the RL Act, and in outlining his principal complaint against the Respondents - namely, that they did not take reasonable steps to prevent leakage of water into the Shop - it listed (amongst other things) the specific dates on which leakage allegedly occurred.
The second ground does not of itself constitute justification for dismissing an application made to the Tribunal under the RL Act. Section 73(1) of this Act does not state that the Tribunal has no jurisdiction with respect to a claim for monetary relief exceeding $400,000. It provides instead that the total amount ordered to be paid may not exceed this sum. It is common for applicants to plead in their applications under the Act that they are entitled to recover more than $400,000 from the respondent but that they are prepared to 'abandon the excess'. Undoubtedly, the Applicant, when pressed on this point by Gadens in their letter of 4 December 2012 (see [10] above) should have indicated at this stage whether he proposed to abandon the excess, discontinue the Application and commence proceedings in an appropriate court, or seek an order transferring the Tribunal proceedings to the Supreme Court (as he ultimately did). But to say this is not to say that the Application was liable to dismissal solely on the ground that it advanced a claim for monetary relief in the sum of $900,000.
With regard to the third ground, my opinion is that the failure of the parties to attempt to mediate the dispute that is the subject of these proceedings (as distinct from the dispute that in fact went to mediation in May 2012) may not wholly have been the fault of the Applicant. The Respondents adopted the position that they could not proceed to mediation until they had received the further and better particulars requested in Gadens' letter of 4 December 2012. Having regard to the fact that the Application (as I have just pointed out) contained quite a detailed description of the factual allegations on which it was based, the question whether they could legitimately adopt this attitude was an open one. It was not canvassed before me, so I make no ruling on it. It is sufficient to say that the fact that a mediation did not occur is not, in itself, a ground for summarily dismissing the Application.
The fourth ground of dismissal advanced by the Respondents - a 'want of prosecution' of the proceedings by the Applicant - has significant merit and requires some discussion.
The foregoing account of the conduct of proceedings on his behalf by McBride Harle discloses consistent and unjustified failures on their part to comply with orders made by consent at directions hearings or to provide any kind of answer to requests of a relatively standard kind by Gadens for further and better particulars. In addition, they did not supply an answer, legitimately requested by Gadens, to the question whether the Applicant was prepared to 'abandon the excess' over $400,000. As illustrated by the report by Accountancy First that the Respondents tendered, they were aware as early as June 2012 of an estimate of damages significantly greater even than the amount of $900,000 claimed in the Application. It is extraordinary, and entirely unsatisfactory, that they took no steps to resolve the contradiction between the amount claimed and the amount that could be awarded once it was brought to their notice.
Even after Mr Muriniti took over representation of the Applicant in or about June 2013, progress has been unduly slow. It was not until 27 September 2013, four days after the deadline imposed in the Tribunal's orders of 8 August, that he (a) resolved the issue raised by the Application's claim for monetary relief substantially exceeding the Tribunal's jurisdictional limit and (b) disclosed a matter that would justify withholding an answer to the Respondents' request for further and better particulars.
The matter that Mr Muriniti disclosed was that the Applicant now wished to allege misleading or deceptive conduct and unconscionable conduct committed by the Respondents before the grant of the Lease. I agree with a submission by Mr Newell that this significant change in the way in which the Applicant wished to maintain his case did provide some justification for no longer providing the particulars sought. But it in no way excused the Applicant's past failures to supply any kind of answer to the request initially made by Gadens more than nine months earlier and to comply with the subsequent directions by the Tribunal that particulars should be provided.
But for three countervailing considerations, I would be inclined to rule that the conduct of the proceedings by or on behalf of the Applicant amounted to a 'want of prosecution' within the meaning of section 73(5)(g)(iv) of the ADT Act and that the Application should be summarily dismissed under that provision.
These three considerations are as follows.
First, the Tribunal's power to dismiss proceedings under this provision is a discretionary one. A finding that there has been a 'want of prosecution' does not necessarily lead to an order of dismissal.
Secondly, the Applicant gave unchallenged testimony (see [19] above) that many aspects of McBride Harle's handling of his case occurred without his being consulted, that he did not know of the directions by the Tribunal that were not obeyed and that they were slow in handing over his file after he terminated their retainer.
Thirdly, I was advised by Mr Newell that if these proceedings were summarily dismissed, the Applicant would seek to commence proceedings anew in the Supreme Court. He added that he believed that the limitation period of three years in section 71B of the RL Act might present an obstacle, but then agreed with a suggestion by me that this limitation period seems to apply only to Tribunal proceedings and that in the Supreme Court the period is probably six years. An implication of this statement of the Applicant's intention is that there would be no substantial difference in practical terms between making an order for dismissal and making the order for transfer to the Supreme Court sought by the Applicant. Importantly (as Mr Newell acknowledged), either order may be accompanied by a costs order against the Applicant based on the highly unsatisfactory manner in which his case has been conducted in the Tribunal.
Having regard to these considerations, I have decided not to grant the order for summary dismissal sought by the Respondents.
The Applicant's application for transfer to the Supreme Court
The procedure for transfer to the Supreme Court under section 76A of the RL Act is available in these proceedings because, as stipulated in subsection (1), they are proceedings 'partly for an unconscionable conduct claim and partly for a retail tenancy claim'.
Mr Connolly properly acknowledged that, despite the seemingly absolute nature of the prohibition in section 68(1) of the RL Act, the fact that a mediation has not occurred in these proceedings is not a bar to the making of an order under section 76A.
The criterion for transfer set out in subsection (2) of this section is that the Tribunal must be satisfied of both of the following: (a) the nature of the claim is such that it may be more effectively and appropriately dealt with by the Supreme Court; and (b) the interests of justice do not require the matter to be continued to be dealt with by the Tribunal.
The fact that the Applicant currently seeks monetary relief of $900,000 (and is foreshadowing an increase of this sum to approximately $1.7 million) is enough to satisfy me that the 'nature' of his claim is 'such that it may be more effectively and appropriately dealt with by the Supreme Court'. Since he is not 'abandoning the excess', his claim cannot be 'effectively and appropriately dealt with' by the Tribunal. At this stage of the proceedings, the question whether he has evidence such as might substantiate a claim of this magnitude is not in issue (cf my discussion of this question in Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118 at [49 - 51].
For effectively the same reason, I am satisfied that 'the interests of justice' do not require this matter to 'be continued to be dealt with by the Tribunal'. The 'interests of justice' would manifestly be impaired if the Tribunal, lacking the power to grant monetary relief exceeding $400,000, were to insist on retaining a claim for such relief amounting to about $1.7 million.
Section 76A confers no discretion on the Tribunal. If it is satisfied of the two matters delineated in subsection (2), it must transfer the proceedings to the Supreme Court.
Accordingly, I make an order to this effect with respect to the present proceedings.
Costs
Mr Connolly contended that, irrespective of whether I granted his application for summary dismissal or ordered that the proceedings be transferred to the Supreme Court, I should order the Applicant to pay all of the Respondents' costs in these proceedings.
In essence, the grounds for this submission were that the Applicant had instituted proceedings that were wholly misconceived, in so far as from the outset he had claimed monetary relief in an amount far exceeding the Tribunal's jurisdictional limit. The Applicant, Mr Connolly pointed out, knew of this defect in the Application since 18 June 2012 (the date of the report by Accountancy First), but filed the Application nonetheless some five months later.
Mr Connolly maintained that for these reasons the Applicant manifestly ignored the following injunction to applicants under the RL Act given by the Tribunal (in the context of a costs application) in Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 at [37]:-
37 So, it is plain to me that, not only is this Division a commercial division dealing with commercial issues between lessors and lessees in a retail lease environment, but, and in addition, proceedings should only be commenced in this Tribunal after very careful consideration of the merits of the case... After all, commencing proceedings without such consideration inevitably results in considerable expense being incurred by the other party and one might not unreasonably ask: "why should the other party have to bear those expenses when the proceedings should not have been commenced in the first place?"
In response to a question from me, Mr Connolly advised that the costs incurred by the Respondents up to but not including the hearing before me amounted (after payment by the Applicant of the previously ordered costs totalling $2,200 had been taken into account) to $22,800.
He stated also that the order that the Respondents now sought was for payment of costs on an indemnity basis. He indicated that in support of this submission he would wish to tender some correspondence between the parties' representatives. For this reason, he said, it was not appropriate for me to resolve all aspects of costs in the present decision.
Mr Newell did not seriously question the proposition that a costs order of some kind relating to the Tribunal proceedings should be made against the Applicant. He submitted, however, that it should be an order restricted to the costs 'thrown away' by virtue of the Applicant's decision to amend his claim and seek a transfer of the proceedings to the Supreme Court. He argued further as follows: (a) it was preferable that the Supreme Court should deal with the question of these costs, along with the costs of the proceedings in the Court; and (b) some of the costs incurred so far would relate to steps taken within the proceedings that were relevant to their continuance in the Court and should therefore not be included in any costs order made against the Applicant.
In my opinion, it is clearly 'fair' within the meaning of section 88(1A) of the ADT Act that a costs order against the Applicant should accompany the order made under section 76A. For reasons already stated, it was entirely unreasonable for the Applicant to maintain these proceedings for such a long period in the Tribunal, then to indicate that he wished after all to pursue a claim that it could not properly entertain and to apply for a transfer to the Supreme Court. When this conduct is considered alongside the many delays occasioned by non-compliance with Tribunal directions, the case for a costs order under section 88(1A) is unanswerable.
I see no reason why the Tribunal should not make such an order at this point when the proceedings are to be transferred to the Supreme Court. Irrespective of their final outcome, the fact remains that the Applicant's conduct has occasioned unnecessary costs in the Tribunal.
For the reasons advanced by Mr Connolly, however, it is not appropriate for me to make final orders at this stage. I will order only that the Applicant is to pay costs of the Respondents thrown away by virtue of his having commenced these proceedings in the Tribunal but subsequently sought and obtained an order transferring them to the Supreme Court.
I will leave for further consideration the following questions relating to the assessment of these costs: (a) whether they should be assessed on a party-party basis or as indemnity costs; (b) whether it is appropriate for the Tribunal to determine the amount to be paid; and (c) if so, what amount is to be paid. These matters are the subject of directions set out on the cover page of this decision.
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Decision last updated: 04 November 2013
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