HEAD and ZIMMERMANN INVESTMENTS PTY LTD
[2010] WASAT 75
•25 MAY 2010
JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL
STREAM: COMMERCIAL & CIVIL
ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
CITATION: HEAD and ZIMMERMANN INVESTMENTS PTY LTD [2010] WASAT 75
MEMBER: MR M SPILLANE (MEMBER)
HEARD: DETERMINED ON THE DOCUMENTS
DELIVERED : 25 MAY 2010
FILE NO/S: CC 855 of 2009
BETWEEN: BRIAN HEAD
Applicant
AND
ZIMMERMANN INVESTMENTS PTY LTD
Respondent
Catchwords:
Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA) Exercise of discretion Costs
Legislation:
State Administrative Tribunal Act 2004 (WA), s 55
Result:
Application for costs dismissed
Category: B
Representation:
Counsel:
Applicant: Mr J Eastoe
Respondent: Mr M Levitan
Solicitors:
Applicant: Jonathan Eastoe, Solicitor
Respondent: Melvin Levitan
Case(s) referred to in decision(s):
Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S)
Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135
Head and Zimmermann Investments Pty Ltd [2009] WASAT 61
Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 (S)
Medical Board of Western Australia and Graziotti [2009] WASAT 19
Pearce & Anor and Germain [2007] WASAT 291 (S)
REASONS FOR DECISION OF THE TRIBUNAL:
Summary of Tribunal's decision
The applicant submitted five questions concerning a commercial tenancy to the Tribunal for determination.
At mediation all five issues were resolved by consent but the parties reserved their right to apply for costs.
Following consideration of both parties' submissions, the Tribunal was not satisfied that costs should be awarded to either party and dismissed both applications.
Relevant background
This matter first came before the Tribunal on 11 June 2009 when the applicant referred five questions for determination, namely:
1.Does the Original Lease require rectification to include an operative provision in respect of the Third Option Term?
2.Does the Second Extension Deed require rectification insofar as it purports to exclude the Applicant's right to the Third Option Term?
3.Is the correct amount of rent per month payable by the Applicant for a period of 5 years commencing on 1 October 2006 (inclusive of GST) the sum of $653.06 or some other sum?
4.Is the Respondent indebted to the Applicant in the sum of $3,803.84 (or some other sum) being overpayment of rent for the period from 1 October 2002 to the date on which this question is answered?
5.Is the Applicant entitled to retain the existing airconditioning unit which serves the Leased Premises?
At the same time the applicant filed an interim application for urgent relief to restrain the respondent doing a number of things including reentering the premises, terminating the applicant's rights as lessee or moving the applicant's airconditioning unit.
In view of the urgent nature of the applicant's interim application the matter was brought on before the Tribunal on 16 June 2009 and the following orders were made:
1.Based on the undertaking given to the Tribunal on behalf of the respondent not to reenter the premises or seek to remove the airconditioning unit until the determination of the matter in the Tribunal the interim application is dismissed save as to costs;
2.On or before 30 June 2009 the applicant must file with the Tribunal and give to the respondent a statement of issues, facts and contentions it says arises in the proceedings, identifying, where drafted by a legal representative or agent, the responsible draftsperson;
3.On or before 21 July 2009 the respondent must file with the Tribunal and give to the applicant its own statement of issues, facts and contentions, identifying, where drafted by a legal representative or agent, the responsible draftsperson, and setting out:
(a)by reference to each paragraph number in the applicant's statement whether the respondent accepts or rejects the issue, fact or contention identified by the applicant; and
(b)any other issues, facts and contentions it says are relevant to the decision under review.
4.The matter is listed for further directions on 23 July 2009.
Both parties filed their respective statement of issues, facts and contentions, as ordered. At that directions hearing, the matter was adjourned to mediation on 28 July 2009.
At the mediation on 28 July 2009, the following orders were made:
1.The mediation is adjourned to 2 pm on 12 August 2009 to afford the parties an opportunity to settle a minute of consent orders.
2.If the minute is agreed to, the mediation will be vacated and the proceedings discontinued on terms agreed to by the parties.
Following further mediation on 12 August 2009, the orders were made by consent of the parties, which stated:
1.The mediation is discontinued on the basis that a draft Minute of Consent Orders will be considered by the parties.
2.The matter is set down for a directions hearing to be held on 3 September 2009 unless the parties have filed with the Tribunal prior to the directions hearing a signed Minute of Consent Orders as negotiated.
On 3 September 2009 the matter did come on for directions when it was adjourned to further directions on 10 September 2009 and on that date was adjourned back to mediation on 21 September 2009, when the following orders were made by consent.
1.By not later than 4 pm on 28 September 2009, the respondent must duly execute and deliver to the applicant's solicitor the enclosed copy of the Deed of Ratification [sic] (in duplicate) ('the Deed of Rectification').
2.Within seven (7) days of delivery to the applicant's solicitor of the duly executed Deed of Rectification, the applicant must execute both copies of the document and within a reasonable time thereafter deliver one executed copy to the respondent's solicitors;
3.The applicant releases the respondent from any liability (if any) whatsoever for any claim for overpayment of rent in respect of the premises, the subject of these proceedings, which has or may have arisen prior to 1 September 2009;
4.Nothing in these orders shall prejudice or in any way adversely affect a claim for a costs order in these proceeding;
5.In relation to the applicant's airconditioning unit ('the Unit'):
(a)the applicant is entitled to have the Unit remain in place where it is currently installed;
(b)at the expiration or sooner determination of the Lease, the applicant (the Lessee) shall at his option remove the Unit and make good any damage caused by its removal; and
(c)if the Unit is not removed by the applicant (the Lessee) within 14 days of the expiration or sooner determination of the Lease, property in the Unit shall be deemed to have passed to the respondent (the Lessor).
6.The respondent:
(a)shall at its own expense promptly carry out such repairs to the roof of the Astor Arcade as are necessary to prevent water leakage as referred to in the memo dated 16 July 2009 from Alex Cuccovia to the respondent annexed to the statement of Bruno Karl Zimmerman dated 17 July 2009; and
(b)acknowledges that the applicant denies liability for such water leakage.
7.Within 14 days of making these orders, the party seeking any order for costs in respect of these proceedings must file and serve written submissions in that respect.
8.If any party files and serves any submissions on costs in accordance with Order 7, the issue of costs shall be the subject of a further directions hearing (to determine, inter alia, the extent to which the issue of costs shall be determined on the papers) on a date to be fixed.
On 5 October 2009, both the applicant and the respondent made applications for costs. Consequently, the matter again came before the Tribunal for directions on 5 November 2009, when the issue of costs was adjourned to be determined on the papers.
In respect of the applications for costs, the parties filed the following documents:
1)Applicant's submissions on costs dated 5 October 2009;
2)Applicant's bundle of documents in respect of costs dated 5 October 2009;
3)Respondent's submissions on costs dated 5 October 2009 attached to which were a number of documents including a draft bill of costs;
4)Applicant's submissions in reply dated 23 October 2009;
5)Applicant's draft bill of costs dated 2 November 2009; and
6)Respondent's submissions in reply dated 2 November 2009.
Submissions
As outlined earlier, there were five questions identified in the application filed with the Tribunal, dated 11 June 2010, which related to three separate issues, namely:
1.Rectification.
2.Overpayment of rent.
3.Air-conditioning unit.
The consent orders made on 21 September 2010 refer to the same three issues but also dealt with a fourth not previously identified, namely:
4.Roof repairs.
The parties' submissions on costs filed by the parties largely related to those four issues, but also identified a fifth, namely:
5.Parties' conduct.
For the purposes of clarity, the Tribunal will first summarise the parties' submissions in respect of those issues:
Rectification
The principal focus of the applicant's submissions was directed to the issue of rectification. He stated.
12.Member Carey's decision in Head and Zimmermann Investments [2009] WASAT 61(2) was handed down on 8 April 2009. Given the Member's rejection in clear unequivocal terms of the Respondent's arguments concerning the claimed invalidity of the Deeds of Extension the Respondent and its Solicitor should have moved promptly to resolve the rectification issues. No such action was taken despite the fact that a very clear invitation was issued by the Applicant's Solicitor in the letter of 23 April 2009.
…
16.The proper course of action for Mr Levitan to have adopted would have been to advise his client to obtain independent advice either from another lawyer or by obtaining Counsel's advice. Had that been done at an early stage (e.g. in January 2008 when the Applicant's Solicitor first wrote to Mr Levitan) then it would almost certainly have been the case that the matter (or at least the rectification issues) would have been resolved without these present proceedings having to be brought.
…
23.In the Applicant's Submission the conduct of the Respondent and its solicitor is of such a serious nature to warrant the making of a costs order against the Respondent. The rectification issues, which are the main thrust of the application, could and should have been resolved, prior to the commencement of proceedings, by the Respondent simply conceding that rectification was in order and by instructing its Solicitor to settle the terms of the Deed. In this context it is to be noted that the Deed of Rectification executed pursuant to the consent orders at mediation is (as regards rectification) substantially in the same form as that tendered to the Respondent's solicitor in January 2008.
In his submissions in reply at [4.1], the applicant further stated:
The Orders made by consent at the mediation Conference on 21 September 2009 demonstrate the overall success of the applicant particularly on the important rectification issues and the airconditioning issue.
In respect of this issue, the respondent made the following submissions:
…
4.8on 3 June 2009 the Respondent's solicitor addressed a letter to the Applicant's solicitor confirming that he did not object to the Applicant drafting a Deed of Rectification to amend the Lease and the Second Deed of Extension;
4.9on 9 June 2009 the Respondent's solicitor sent a letter by fax to the Applicant's solicitor confirming that the Applicant had not complied with the Lease in regard to the installation of airconditioning by failing to obtain the Respondent's consent for both air-conditioners and informing the Applicant that the Respondent would give reasonable notice should it intend to proceed with the removal of the air-conditioning units and would agree for such a period to be at least ten days to enable the Applicant's solicitor to draw up whatever documentation it believed was necessary. Further it informed the Applicant's solicitor that the Applicant would be responsible in terms of the Lease for all costs on a solicitor/client basis. The Respondent also reiterated that the Applicant had a third five year option and stated that if the Applicant wanted to apply at its expense to SAT to clarify what he believes is incorrect that it was up to him. Clarification as to what the monthly rental for the premises were was also given in the letter and gave notice that the set-off of any rent against any amount allegedly claimed by the Applicant as being overpaid would amount to a material breach of an essential term of the Lease which had continued for a period of more than fourteen days.
…
16.The Applicant filed an Application on 11 June 2009 raising questions whether the Original Lease and the Second Extension Deed required rectification to make provision for the Applicant's third option term. This question had already been determined by the Respondent with the Applicant that if the Applicant wished to draft a Deed of Rectification to clarify the Lease documentation there would be no objection from the Respondent and no proceedings were required to be instituted.
Overpayment of rent review clause
Questions 3 and 4 of the application and Order 3 of the final orders relate specifically to this matter. The only submission received from the applicant in respect of this issue was contained in his submissions in reply at [4.2], where he stated:
4.2The air-conditioning issue clearly emerged as a retribution measure by the landlord and, given that all other tenancies in the Astor Arcade were serviced by air-conditioners located in the same region, demonstrated the landlord's preparedness to engage in discriminatory conduct towards a tenant who was successful in the earlier proceedings.
The respondent made the following submissions:
4.5on 25 May 2009 the Respondent sent a letter to the Applicant requesting the Applicant to remove an air-conditioning unit as no verbal and/or written request had been made by the Applicant to the Respondent for permission to install the air-conditioning. Further the letter informed the Applicant that he was in arrears with his May rental payment and required 'payment within fourteen days of this letter to keep within the terms of the Lease';
4.6in response to the Respondent's letter regarding air-conditioning the Applicant's solicitor sent a letter to the Respondent asserting that there was no clause in the Lease which required. the Applicant to obtain the Respondent's consent to the installation of the airconditioning unit and also raised the question that this was now the second air-conditioning unit that was being installed at the Leased Premises by the Applicant. The letter went on further to try and claim that the Applicant was being specifically picked out by the Respondent as it referred to other tenants in the arcade who had also installed air-conditioning units. The Applicant also requested an immediate undertaking that the new airconditioning unit would not be removed and threatened to bring an injunction to restrain the Respondent from removing the air-conditioner;
…
4.9on 9 June 2009 the Respondent's solicitor sent a letter by fax to the Applicant's solicitor confirming that the Applicant had not complied with the Lease in regard to the installation of airconditioning by failing to obtain the Respondent's consent for both air-conditioners and informing the Applicant that the Respondent would give reasonable notice should it intend to proceed with the removal of the air-conditioning units and would agree for such a period to be at least ten days to enable the Applicant's solicitor to draw up whatever documentation it believed was necessary. Further it informed the Applicant's solicitor that the Applicant would be responsible in terms of the Lease for all costs on a solicitor/client basis. The Respondent also reiterated that the Applicant had a third five year option and stated that if the Applicant wanted to apply at its expense to SAT to clarify what he believes is incorrect that it was up to him. Clarification as to what the monthly rental for the premises were was also given in the letter and gave notice that the setoff of any rent against any amount allegedly claimed by the Applicant as being overpaid would amount to a material breach of an essential term of the Lease which had continued for a period of more than fourteen days.
…
18.The Applicant also raised a question whether it was entitled to retain its existing airconditioning unit which served the Leased Premises. The Applicant never made any attempt to request permission prior to the institution of proceedings in the Tribunal but preferred to follow the litigious option after first denying on legal advice that he did not require the Respondent's consent.
Roof repairs
This matter was not raised as a question in the initial application. However, Order 6 of the final order specifically dealt with it.
Neither of the parties made any submissions in respect of this issue.
Conduct of the parties
This was an issue the applicant returned to on a number of occasions and stated:
…
21.The Statement of Issues Facts and Contentions in these proceedings were drafted by the Respondent's Solicitor Melvyn Levitan. The claims which he makes in that document, to the effect that there was never any dispute as to the entitlement to the options, are clearly false.
The making of false claims by a lawyer to this Tribunal must be viewed as extremely serious conduct.
27.In any event, in these proceedings, the Applicant has not chosen to approach proceeding in a way which increases costs. The Applicant has been forced to approach the proceedings in the way he has because of the Respondent's refusal to concede the rectification issues.
And, further, in his submissions in reply at [1.3] and [1.4], and [51] [5.3], he stated:
1.3It is a matter of some concern that the Respondent's Solicitor would seek to act in flagrant breach of the confidentiality requirements attaching to mediation.
1.4Moreover, this is not the first occasion on which the Respondent's Solicitor has improperly sought to direct the Tribunal's attention to matters arising in mediation.
5.1The Respondent's Solicitor has:-
(a)continued to act in opposition to an application for rectification of documents (the Original Lease and the Second Extension Deed) in circumstances where the need for rectification arose by reason only of the Respondent's Solicitor's negligence in drafting the commercial lease documentation.
(b)attempted to mislead the Tribunal for advancing false claims to the effect that the Respondent never at any stage contested the Applicant's entitlement to the third 5 year option.
(c)made continued reference to matters arising out of mediation conferences in flagrant breach of Section 55 of the SAT Act.
5.2The course of conduct adopted by the Respondent's Solicitor is totally unsatisfactory. Moreover, it is reasonable to infer that that course of conduct has been approved or ratified by the Respondent (after all the rectification issues have been drawn to the Respondent's attention as long ago as January 2008).
5.3Such conduct cannot be permitted to pass without an expression of disapproval by the Tribunal and an award of costs against the Respondent to discourage such behaviour.
The respondent dealt with the matter briefly in its submissions in reply, and at [5.4] stated:
The behaviour of the Applicant's solicitor in his conduct of this action constitutes unprofessional conduct in his attempts to avoid the fact that he gave incorrect legal advice to his client in regard to the Applicant's right to set-off against rental and in regard to the requirement for the Respondent's written consent prior to the installation of air conditioning units at the Leased Premises by the Applicant. In fact it was for these reasons that this Application was brought as the question of the third Option period had already been resolved by the parties prior to the institution of these proceedings.
Consideration
In Pearce & Anor and Germain [2007] WASAT 291 (S) (Pearce) Chaney J set out an overview of the costs regime applied by the Tribunal and the criteria to be considered prior to awarding costs. In Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135 the criteria identified by Chaney J in Pearce were summarised as follows:
(i)The starting point of the Tribunal is that it is a 'no costs' jurisdiction.
(ii)The costs regime that was applicable to the previous Commercial Tribunal does not apply to the State Administrative Tribunal ([11]).
(iii)The objectives of the State Administrative Tribunal are furthered by its being essentially a 'no costs' jurisdiction ([17]).
(iv)Where there is a genuine dispute and the respective rights are unclear and parties seek a determination, the 'starting point remains that each party should expect to pay their owns costs' ([24]).
(v)The Tribunal does have the power to award costs, and it is not appropriate to 'delineate the particular circumstances' in which discretion to award costs would be exercised favourably ([22]).
(vi)Some of the factors (not an exhaustive list) that may contribute to the Tribunal making a costs order are for example
a)A party has conducted itself unreasonably, particularly where the conduct leads to unnecessary costs to the other party.
b)A party has conducted itself inappropriately, particularly where the conduct leads to unnecessary costs to the other party.
c)Where credibility of evidence is at the heart of a matter.
d)Where the application undermines the integrity of proceedings under the relevant Act.
e)The relative weakness of a case, it being incredible or implausible or 'obviously unmeritorious'.
f)If a party has to embark in proceedings to 'vindicate its clear contractual entitlements' ([22] [24]).
As is evident from the submissions of both parties outlined above, strong feelings are held on either side as to the conduct of the other party, with both parties believing that the other party's conduct had been in some way improper, and that a costs order should ensue.
The parties have been before the Tribunal previously in respect of the same tenancy, with two decisions being handed down by the Tribunal in 2009, namely Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 and Head and Zimmermann Investments Pty Ltd [2009] WASAT 61 (S).
Apart from costs, the substantive issues in the present case were entirely resolved at mediation and both parties in their submissions raised the issue of mediation privilege.
Section 55 of the State Administrative Tribunal Act 2004 (WA) (SAT Act) states:
55. Evidence of certain things inadmissible
Evidence of anything said or done in the course of a compulsory conference or mediation is not admissible at any later stage of the proceeding unless
(a)all parties agree to the admission of the evidence;
(b)it is evidence of directions given or orders made at a compulsory conference or mediation or the reasons for those directions or orders; or
(c)it is relevant to
(i)a proceeding for an offence in relation to the giving of false or misleading information;
(ii)a proceeding under section 100; or
(iii)a proceeding in relation to an order made under section 53(b)(i).
In Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S), the Tribunal held that s 55 of the SAT Act unambiguously excluded evidence of anything said or done in mediation.
It is clear, therefore, that the Tribunal must exclude evidence of anything said or done in mediation in attempting to make a decision on costs in this matter, and is therefore limited to considering the written material only.
As set out in Pearce, the starting point of the Tribunal is that it is a no costs jurisdiction and that each party should expect to pay their own costs.
Furthermore, the fact that the matter was fully and finally settled by consent of the parties through mediation is in the Tribunal's view significant.
There is a clear advantage in encouraging parties to enter mediation and to respect the outcome. A quick perusal of the Tribunal's annual report shows that the majority of all matters that come before the Tribunal are finalised by way of mediation or some form of dispute resolution, other than hearing, and the Tribunal would be most concerned that the risks of a costs order would be seen as a disincentive to enter into such process.
In Medical Board of Western Australia and Graziotti [2009] WASAT 19 Chaney J, in dealing with a costs application on withdrawal by the Medical Board of its application, stated at [69]:
In reaching this view, we are particularly mindful of the concern expressed by counsel for the Board as to the potential disincentive to participation in mediation that the making of a costs order might have. There is a clear advantage of mediation in vocational matters, as in all other matters, in that it enables parties to better communicate their respective positions with a view to resolution of disputes. It is not uncommon that, in light of information obtained through mediation, an applicant might discontinue its proceedings, or a respondent might consent to orders sought. It would be quite inappropriate, if, as a general rule, discontinuance of an application following mediation were to result in the costs order in favour of a respondent.
In the present matter, as can be seen from the final orders at mediation, the parties reserve their right to apply for costs. In the circumstances, the Tribunal, while keeping the general principles outlined above in mind, must decide the issue.
Rectification
There is a clear disagreement of opinion on this issue, with the applicant submitting at [23]:
… the rectification issues, which are the main thrust of the application, could and should have been resolved, prior to commencement of proceedings, by the Respondent simply conceding that rectification was in order and by instructing its Solicitor to settle the terms of the Deed.
While the respondent stated at [4.8] set out above:
On 3 June 2009 the Respondent's solicitor addressed a letter to the Applicant's solicitor confirming that he did not object to the Applicant drafting a Deed of Rectification to amend the Lease and the Second Deed of Extension;
It could, therefore, be argued that as that offer was made by the respondent prior to the matter coming to the Tribunal, that there was in fact no need to bring the application. However, it is noted that in its statement of issues, facts and contentions, the respondent confirmed that although the applicant was entitled to a third five year option, a deed of rectification was not necessary.
In the circumstances, in considering the issue of costs, the Tribunal is left with conflicting submissions. Each may have valid arguments but without the benefit of hearing evidence, or having that evidence tested, and with no knowledge of why the orders finalising the matter were made at mediation, the Tribunal is not prepared to draw conclusions or make findings in respect of this issue on which an award for costs could be based. Furthermore, the Tribunal is not satisfied on the criteria set out in Pearce that, based on what is before it, there is good reason to move from the Tribunal's starting point of no costs.
Overpayment of rent
Questions 3 and 4 outlined above dealt specifically with this issue, and following mediation the consent order stated:
The applicant releases the respondent from any liability (if any) whatsoever from any claim for overpayment of rent in respect of the premises, the subject of these proceedings, which has or may have arisen prior to 1 September 2009;
No submissions were received from the applicant in respect of this issue, and the respondent merely outlined the correspondence between the parties and, at [17] of its submissions, stated:
The Applicant also required the SAT to determine the correct amount payable by the Applicant for the period of five years commencing on 1 October 2006 inclusive of GST being the sum of $653.06 or some other sum and also requested the Tribunal to order that the Respondent was indebted to the Applicant for overpayment of rent for the period from 1 October 2002. This was resolved with the Applicant waiving the overpayment.
Again, in order to determine this matter, the Tribunal is left with no more than a brief statement of the facts as confirmation that, through mediation, those two questions were resolved, and with the applicant releasing the respondent from any liability.
Again, the Tribunal is not prepared to draw conclusions from a course of correspondence without any evidence or having that evidence tested, and is not satisfied, on what is before it, to make the costs order sought.
Airconditioning unit
Order 5 finalised this matter following mediation, allowing the airconditioning unit to remain in place and clarifying the position at the time of determination of the lease.
Apart from claiming at [4.2] of its submissions in reply that the airconditioning issue clearly emerged as a retribution measure, given that all other tenancies in the Astor Arcade were serviced by airconditioners located in the same region, and that the landlord was engaging in discriminatory conduct towards the tenant who had been successful in earlier proceedings, the applicant made no other submissions.
The respondent, on the other hand, at [18] of its submissions made the point that the applicant had never requested permission to install the airconditioning unit but preferred to follow the litigious option after first denying on legal advice that he did not require the respondent's consent.
Again, the Tribunal is left with conflicting assertions, both of which may or may not have merit, but without hearing any evidence as to what the correct position was and why the order finalising the matter was made, there is nothing on which the Tribunal is prepared to base an order in respect of costs.
Roof repairs
This was an issue that was not even raised as a question before the Tribunal, yet an order was made in respect of it following mediation.
Furthermore, no submissions were received from either party in respect of the issue and the Tribunal is therefore not in a position to comment further in respect of this issue.
Conduct of the parties
As stated earlier in these reasons, it was evident from the start of proceedings that strong feelings were held on either side, and although questions may arise, as they do in many proceedings, as to whether matters may have been dealt with or handled differently, the Tribunal is not satisfied on what is before it, that the conduct of either party was such that should attract an order for costs.
Five questions were put before the Tribunal, all of which were resolved consensually at mediation. As with other issues, there are arguments for and against both sides, but the Tribunal is not satisfied on what has been put before it, that the conduct of either party should attract an order for costs on this occasion.
Conclusion
In all the circumstances, having considered each of the issues and applying the criteria set out by Chaney J in Pearce, the Tribunal is not satisfied that there are sufficient grounds for a costs order to be made against either party or that the Tribunal should move from its starting point that each party should bear its own costs.
Furthermore, the questions put to the Tribunal were entirely finalised by consent between the parties at mediation and in such circumstances, a costs order should, in the Tribunal's opinion, only be granted in exceptional cases, which do not arise here.
Orders
Both applications for costs are dismissed.
I certify that this and the preceding [55] paragraphs comprise the reasons for decision of the State Administrative Tribunal.
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MR M SPILLANE, MEMBER
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