Feng Yun v Goulburn International Pty Ltd (No. 2)

[2013] NSWADT 47

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Feng Yun v Goulburn International Pty Ltd (No. 2) (Costs) [2013] NSWADT 47
Hearing dates:	On the papers
Decision date:	27 February 2013
Before:	Deputy President D Patten
Decision:	The respondent to pay the applicant's costs in the sum of $17,167.50.
Catchwords:	Retail Leases - Indemnity Costs - Failure to pay bond to Director-General - Failure to accept reasonable offer
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Category:	Costs
Parties:	Feng Yun (Applicant) Goulburn International Pty Ltd (Respondent)
Representation:	Christopher Levingston and Associates (Applicant) K Hewlett and Co. (Respondent)
File Number(s):	125091

reasons for decision

1. The successful applicant has applied for indemnity costs following the decision in her favour published on 21 December 2012. The jurisdiction to award costs is derived from s 88 of the Administrative Decisions Tribunal Act 1997:

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. Initially the proceedings concerned only the applicant's attempt to recover a rental bond of $26,000 but during the litigation, claims and counter claims were made as to whether over the term of the lease there was an overpayment or underpayment of the rent. In the result although I found in the respondent's favour as to the date the lease commenced, the state of record keeping in relation to the payment of rent was so abysmal that I could not be satisfied one way or the other as to the rental situation when the lease ended. It is probable that any balance was quite small.

1. The position regarding the rental bond however was quite different. There is no doubt that $26,000 was paid and there is no doubt that contrary to s 16C of the Retail Leases Act 1994 the amount of the bond was not deposited with the Director-General but retained by the respondent for its own purposes. No explanation was provided for this breach of the law.

1. The respondent's answer to the applicant's claim for refund of the bond was that as to the sum of $17,000 it was refunded in cash and as to the balance, it was applied against arrears of rent. In light of the finding previously referred to, no arrears of rent were established against which any part of the bond could be applied.

1. As to the claim that $17,000 was refunded in cash I simply disbelieved the evidence given on behalf of the respondent and accepted the applicant's evidence that she did not receive repayment of any part of the bond.

1. In the circumstances recited I would have had no hesitation in concluding for the purposes of s 88 that it would be fair to order the respondent to pay the applicant's costs. If the respondent had complied with the law and paid the bond to the Director-General, this litigation would have been entirely unnecessary.

1. However my view is very much fortified by the fact that the applicant offered to compromise the claim on what I regard as a reasonable basis and her offer was rejected. On 24 August 2012 by email the applicant offered to accept $24,000 inclusive of costs in satisfaction of the claim. The offer was rejected, it being noteworthy that it was made before the applicant incurred any of the legal costs now claimed.

1. In my opinion the conduct of the respondent, coupled with the fact that the applicant's reasonable offer of compromise was rejected, not only renders it fair that an order for costs be made against it but also makes it fair that such costs be awarded on an indemnity basis.

1. As to the quantum of costs payable, an itemised statement of costs and disbursements rendered by the applicant's solicitors, Christopher Levingston and Associates, has been put before me. The costs relate to the period from when the solicitors were instructed in October 2012. Some disbursements claimed were incurred prior thereto in the form of filing fees, ASIC search fees, property title searches and fees paid to interpreters at the hearing. Nothing is claimed in respect of work performed by the applicant's agent, Mr E Smith.

1. The amount claimed, which totals $17,167.50, does not seem to me to include any item unreasonably incurred and accordingly I would allow the claim in full.

1. I order the respondent to pay the applicant's costs in the sum of $17,167.50.

Decision last updated: 27 February 2013