Hoblos v Marchese

[1999] NSWADT 127

CITATION:	Hoblos v Marchese [1999] NSWADT 127
DIVISION:	Retail Leases
APPLICANT:	Mark Hoblos
RESPONDENT:	Caterina Marchese
FILE NUMBER:	995007
HEARING DATES:	10/08/1999
SUBMISSIONS CLOSED:	10/06/1999
DATE OF DECISION:	8 October 1999
BEFORE:	G M M Hoeben - Judicial Member
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Application for costs
REPRESENTATION:	Applicant: K Williams, agent/solicitor, Birch Partners Respondent: N R Diamond, solicitor, Landerer & Co
ORDERS:	1. No order as to costs.

Delivered Ex-Tempore

1 This matter first came before the Tribunal on 8 June 1999, at which time Mr Hoblos ("the applicant") made his appearance. The respondent also made an appearance. Both parties were given directions. Those directions had compliance dates which were to be met by both the applicant and respondent. It was made clear to the applicant on that occasion that if there was non-compliance by him of the timetable, then it would be impossible for the respondent to make his reply or answer.

2 The applicant also indicated to the Tribunal on that occasion that he had engaged a solicitor who he stated he had instructed to appear, but for some reason, known only to the applicant, the solicitor made no appearance.

3 On 10 August 1999, to which the matter had been relisted, the applicant appeared again on his own behalf. On that occasion he could give no reason why there was non-compliance with the timetable, apart from the fact that he had expected his solicitor to be present and represent him. From the Bar table he stated that there had been a death in the solicitor's family and he assumed that was the reason for the non-appearance of the solicitor.

4 On 10 August 1999 a revised timetable was set which included, inter alia, the following order:

"In the event of non-compliance by the claimant of the revised timetable, the Tribunal will be prepared to entertain a dismissal application and any associated matters, including costs, on the next directions hearing date."

5 Time passed. As there had been non-compliance with the revised timetable, the respondent requested that the matter be relisted early to 23 September 1999 at 2.00pm.

6 On this date there was no appearance by the applicant. The Tribunal noted a copy of an affidavit of service of Ms Wendy Elder, Deputy Registrar of the Tribunal, with attached letter which was sent to the applicant by pre-paid post on 14 September 1999 and marked as annexure A. The letter stated that should the applicant not attend at the next directions hearing, then his application could be dealt with in his absence.

7 On 23 September 1999, there was no appearance by the applicant at the directions hearing. The orders on that date included, inter alia, that the claim be struck out. Further orders were made as follows:

submissions on costs to be filed with the Tribunal by 12 midday on 6 October 1999;

authorities in relation to costs be filed with the Tribunal by 12 midday,…