Duncan v Aljayar Pty Ltd (Costs)

[2011] NSWADT 156

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Duncan v Aljayar Pty Ltd (Costs) [2011] NSWADT 156
Hearing dates:	On the papers
Decision date:	27 June 2011
Jurisdiction:	Retail Leases Division
Before:	D Patten, Deputy President
Decision:	Mr and Mrs Duncan are ordered to pay the costs of Aljayar Pty Ltd in proceedings 105061 and also 105085. Such costs are to be agreed upon or in default of agreement assessed in accordance with the Legal Profession Act 2004
Catchwords:	No appearance of applicants at hearing - order for costs appropriate
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	Du Aus Pty Ltd v Riviera Cove Pty Ltd (No. 2) [2010] NSWADT 302
Category:	Costs
Parties:	Matter 105061: Peter Duncan and Andrea Duncan (Applicants) Aljayar Pty Ltd (Respondent) Matter 105085: Aljayar Pty Ltd (Applicant) Peter Duncan and Andrea Duncan (Respondents)
Representation:	Counsel P O'Loughlin (Respondent) No appearance of Mr and Mrs Duncan (Applicant) Macedone Legal (Aljayar Pty Ltd) (Respondent)
File Number(s):	105061, 105085

REasons for decision

1. RETAIL LEASES DIVISION (D PATTEN (DEPUTY PRESIDENT)): These two matters were before me for hearing on 3 February 2011. Neither Mr nor Mrs Duncan appeared. Aljayar Pty Ltd was represented by Mr P O'Loughlin of counsel.

1. In the circumstances I dismissed matter 105061 under s 73(5)(g) of the Administrative Decisions Tribunal Act 1997 (the Act). I heard matter 105085 ex parte and for reasons then given ordered Mr and Mrs Duncan to pay Aljayar Pty Ltd the sum of $37486.34. I gave Aljayar Pty Ltd leave to make written submissions in respect of costs. It made such submissions on 8 February 2011 and sent a copy of them to Mr and Mrs Duncan two days later. Neither Mr nor Mrs Duncan have made submissions in reply.

1. The jurisdiction to award costs is derived from s 88 of the Act in the following terms:

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

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

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

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) 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,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

(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.

1. In this case s 77A of the Retail Leases Act 1994 provides the authority required by s 88(3) of the Act.

1. In its submissions, Aljayar Pty Ltd referred to Du Aus Pty Ltd v Riviera Cove Pty Ltd (No. 2) [2010] NSWADT 302 and to the observation at para 13 to the effect that costs will more readily be awarded in the Retail Leases Division of the Tribunal than in other divisions. I think that principle should be followed based as it is on the commercial nature of disputes in the division.

1. I agree that a relevant factor in considering whether it is "fair" to make an order is the circumstance that neither Mr nor Mrs Duncan appeared at the hearing without any explanation for their absence except that Mr Duncan had for reasons unknown chosen to absent himself from the country.

1. It should also be noted that Mr Duncan participated in the fixing of the hearing to commence on a date suitable to him. In relation to the proceedings commenced by Mr and Mrs Duncan (105061) in all the circumstances I think it is fair that they should be ordered to pay the respondent's costs.

1. Proceedings 105085, commenced by Aljayar Pty Ltd, were substantially for rent and damages in the nature of rent up to the expiration of the lease. There was no defence to the claim other than by way of set off or cross-claim a defence which was not pursued at the hearing. It would also I think be fair in the circumstances to order Mr and Mrs Duncan to pay the costs of those proceedings.

1. I make this order:

Mr and Mrs Duncan are ordered to pay the costs of Aljayar Pty Ltd in proceedings 105061 and also 105085. Such costs are to be agreed upon or in default of agreement assessed in accordance with the Legal Profession Act 2004 .