Ersoy v Bonzalie

[2010] NSWADT 106

CITATION:	Ersoy v Bonzalie [2010] NSWADT 106
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Aslihan Ersoy and Neslihan Ersoy (075149) Eddie Bonzalie (085030) RESPONDENT Eddie Bonzalie (085030) Aslihan Ersoy and Neslihan Ersoy (075149)
FILE NUMBER:	075149 and 085030
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	15 February 2010
DATE OF DECISION:	30 April 2010
BEFORE:	Callaghan P, SC, Deputy President; Fagg N - Non-Judicial Member
CATCHWORDS:	Costs – no special circumstances
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Dykes & Wildie v Heatherway Pty Ltd (No.2) [2007] NSWADTAP 46
REPRESENTATION:	APPLICANT In person RESPONDENT In person
ORDERS:	Application for costs dismissed

REASONS FOR DECISION

1 In the Decision [2010] NSWADT 2 in these proceedings published by the Registrar on 4 January 2010 (“the Decision”), when all other issues were disposed of, the issue of costs was reserved. Reservation of the costs issue was subject to the following comments in paragraph 82 of the Decision and directions in paragraph 83 of the Decision:

“82…Submissions as to costs in relation to these proceedings have not been made and that issue should be reserved; nevertheless, I make it clear, as may be apparent from what I have written above, that my present view, subject to such application and supporting material that may be lodged, is that there is nothing in these proceedings or their outcome that, consistently with s88(1) of the Administrative Decisions Tribunal Act 1997, would warrant an award of costs.

83 In relation to costs I direct that any application be made in writing with all evidence and submissions relied on within 21 days of the delivery of this Decision, that any response be made in writing with all evidence and submissions relied on within 21 days thereafter and that any such application be decided on the papers.”

2 I was recently informed that the Tribunal had received a letter dated 25 January 2010 on behalf of Ms Aslihan Ersoy and Ms Neslihan Ersoy, the Applicants in proceedings 075149 and the Respondents in proceedings 085030, lodged on their behalf by their father, Mr Ali Ersoy. That letter is in the following terms:

“We would like to discuss the tribunal’s decision in regards to the legal costs by separating it into 2 parts.

Part 1 is in regards to our matter 075149, where the letter received from Carters law firm is the original application for this matter.

a. The letter from Carters law firm forced the lessee to stop the lessor from locking out the lessee.

b. The tribunal found the letter from Carters law firm to be a threat to the lessee.

The matter 075149 was:

a. Estoppel set aside.

b. Estoppel set aside no legal affect.

Therefore, it is the lessor’s responsibility to pay the legal costs of the lessee, as the lessee was forced to open the case and as of the tribunal’s decision which is outlined above.

Part 2 is in regards to matter 085030, which is subject to appeal by us.

We had requested a judicial inquiry a long time ago from the Attorney General department regardless of whether or not the verdict was in our favour. This judicial inquiry was not preceded because the tribunal was in a judicial process with the matter. We are willing to write to the Attorney General’s Department soon in regards to the judicial inquiry.

The Attorney General’s decision in regards to our request of a judicial inquiry is subject to our further appeals to the human rights commission and also the international law.

Due to my dual citizenship, I am entitled to apply my rights within my country of origin to the European human rights commission. (This legal information was obtained from overseas).”

So far as I am aware, no other relevant material has been lodged with the Tribunal.

3 I treat this letter as an application on behalf of Ms Aslihan Ersoy and Ms Neslihan Ersoy for an order for costs in respect of the proceedings. No matter within that letter causes me to change the tentative view expressed in the Decision, and repeated above, that there is nothing in these proceedings or their outcome that, consistently with s88(1) of the Administrative Decisions Tribunal Act 1997, would warrant an award for costs. Apart from other considerations, in terms of results, in proceedings 075149 Ms Aslihan Ersoy and Ms Neslihan Ersoy succeeded in their claim that the termination notice was of no legal effect as such or otherwise and in proceedings 085030 Mr Eddie Bonzalie succeeded in his claim for rectification of the lease document, which, as I found, had been relevantly altered by Mr Ersoy; in other words, each side succeeded, and lost, to a significant extent. I also note in particular the conclusions expressed in paragraphs 53, 54 and 84 of the Decision as to the behaviour, and in paragraphs 55 and 56 as to the credit, of Messrs Ersoy and Bonzalie; these aspects of the proceedings are also suggestive of neither side being deserving of a costs order. As to “special circumstances” referred to in s88 of the Administrative Tribunal Act 1997, I note especially, without repeating here, the approaches to costs in this Tribunal canvassed in Dykes and Wildie v Heatherway (No.2) [2007] NSWADTAP 46 at [16] to [27].

4 My conclusion is that in these proceedings there are no special circumstances warranting any award of costs. The application for costs is dismissed.