Kao v Lim (No 2)

[2003] NSWADT 232

CITATION:	Kao v Lim (No 2) [2003] NSWADT 232
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Peter Kao RESPONDENT Ai Hwa Lim
FILE NUMBER:	015115, 025048, 025091
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	06/27/2003
DATE OF DECISION:	10/14/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Costs - Interest
MATTER FOR DECISION:	Costs and Interest
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Dunnett v Railtrack [2002] 1 WLR 2434 Leicester Circuits Limited v Coates Brothers Plc [2003] EWCA Civ 333 Pheeney v Doolan [1977] 1 NSWLR at 601 Tu v University of Sydney (No.2) [2002] NSW ADTAP 25 Wood and Anor v Bergman (No. 2) [2003] NSWADT 175 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADT 11 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
REPRESENTATION:	APPLICANT G Hoeben, barrister RESPONDENT K Edghill & M Bray, solicitors
ORDERS:	1.I make no order as to costs in relation to the whole of these proceedings.; 2.The Respondent is to pay interest pursuant to section 72A Retail Leases Act 1994 on the amount ordered in the substantive matter. Interest is payable at the District Court judgment debt rate for the period 6 November 2001 to 23 April 2003. The total amounts payable is $5,854.54. This amount is to be paid within 21 days of these reasons.

1 In the substantive matter, each of the parties sought orders in relation to the lease of premises located in the Tuncurry Plaza, 27-29 Manning Street, Tuncurry. In determining the substantive matter I made the following orders:

“1. Ms. Ai Hwa Lim is to pay to Mr. Peter Kao the amount of $43,512.67. This amount is to be paid within 21 days of these reasons.

2. Each party is invited to file written submissions parties in relation to the issues of interest or costs within 28 days of the date of these reasons.”

2 Each of the parties filed written submissions pursuant to Order 2. Mr. Kao (“the Applicant”) sought orders in the following terms:

“1. The applicant submits that the respondent pays the applicant's costs;

2. that the respondent pay the applicant's interest on the amount awarded from the date the cause of action arose (6 November 2001) to the date of judgment 23 April 2003 (that is, receipt by applicant through post on or about 28 April 2003, and

3. that the respondent pays interest on the amount awarded on the outstanding award from 21 days after judgment (14 May 2003) until the amount is paid”.

3 Ms. Lim Also sought an order for costs and no order as to payment of interest. Her application is in the following terms:

“1. The Respondent submits that there should be:
(a) an order that the Applicant pay the Respondent's costs; and

(b) no order as to payment of interest.

2. If the Tribunal is not minded to make an order in accordance with paragraph 1 above, the Respondent submits that there should be no order as to costs and no order as to interest.”

4 Both parties provided detailed written submissions. This determination is made on the basis of those submissions without the need for the parties to attend. I do not propose to repeat those submissions here but will merely provide an outline of the arguments presented.

Relevant Legislation

5 The Tribunal’s power to award costs in relation to proceedings before it is governed by section 88 of the Administrative Decisions Tribunal Act 1987 (“the ADT Act”). Section 88 of the ADT Act provides:

“88 Costs

(1) 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 there are special circumstances warranting an award of costs.

(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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.”

6 Pursuant to section 88(3) of the ADT Act, the power to award costs does not apply in proceedings for an original decision, such as the present proceedings, unless the enactment conferring jurisdiction provides for the awarding of costs. Section 77A of the Retail Leases Act 1994 (“the Act”), which is the enactment conferring jurisdiction, provides:

“77A Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.”

7 The Tribunal’s power to award interest in relation to a retail tenancy claim before it is governed by section 72A of the Act. Section 72A provides:

“72A Power of Tribunal to award interest

(1) When the Tribunal orders on a retail tenancy claim or an unconscionable conduct claim that a person pay money to another person, the Tribunal may order that there is to be included, in the amount ordered to be paid, interest at a specified rate on the whole or any part of that amount for the whole or any part of the period between when the cause of action arose and when the order takes effect.

(2) If the whole or part of an amount claimed under a retail tenancy claim or an unconscionable conduct claim is paid during proceedings in the Tribunal on the claim, prior to or without an order for payment being made in respect of the claim, the Tribunal may order that interest be paid at a specified rate on the whole or any part of the money paid for the whole or any part of the period between when the cause of action arose and the date of the payment.

(3) The rate of interest specified by the Tribunal under this section must not exceed the rate at which interest is payable on a judgment debt of the District Court.

(4) This section does not:

(a) authorise the giving of interest on interest, or

(b) apply in relation to any debt on which interest is payable as of right whether by virtue of any agreement or otherwise, or

(c) affect the damages recoverable for the dishonour of a bill of exchange.

(5) On a claim for the payment of money, the Tribunal may not order the payment of interest under subsection (1) in respect of the period after the date on which an appropriate settlement sum (or the first appropriate settlement sum) has been offered unless the special circumstances of the case warrant the making of such an order.

(6) For the purposes of subsection (5), appropriate settlement sum is a sum offered by a party in settlement of a claim for the payment of money where the amount ordered to be paid (including interest accrued up to and including the date of the offer) does not exceed the sum offered by more than 10 per cent. Subsection (5) does not prevent an award of interest for the period before the settlement offer is made.”

8 The Applicant submits that an order for costs should be made in his favour in this matter on the ground that he was totally successful in all of his claims and that there are special circumstances warranting an award of costs.

9 The Applicant asserts that in considering the issue of 'special circumstances' the Tribunal should take into account that the Respondent was dilatory in her behaviour from the beginning and that she engaged in a clear and unambiguous abuse of process, “taking advantage of every opportunity the law provides to delay the payment of the award now standing against her.” It is the Applicant's submission that in such circumstances “an award of costs against the offending party is an appropriate penalty to impose”.

10 The Applicant further asserts that it was at the initiative of the Applicant that mediation was sought in the present case. The Applicant informed the Respondent of the mediation to be held at Forster on 31 October 2001. By way of letter on 2 October 2001 the Respondent replied 'she now feels that any further negotiation would be a complete waste of time. She will not be attending...'

11 It is the Applicant's submission that this is a significant deficiency by the Respondent and provides a compelling argument for an award of costs to the Applicant. In support of this submission Ms. Hoeben referred to the decision in Dunnett v Railtrack [2002] 1 WLR 2434 in which the English Court of Appeal did not allow costs because the successful party had refused mediation. Lord Justice Brooke stated at page 2436-7:

“Skilled mediators are now able to achieve results satisfactorily to both parties in many cases which are quite beyond the power of lawyers and courts to achieve. This court has knowledge of cases where intense feelings have arisen, for instance in relation to clinical negligence claims. But when the parties are brought together on neutral soil with a skilled mediator to help them resolve their differences, it may very well be that the mediator is able to achieve a result by which the parties shake hands at the end and feel that they have gone away having settled the dispute on terms with which they are happy to live. A mediator may be able to provide solutions which are beyond the powers of the court to provide. ...”

12 At paragraph 12 of the judgment Brooke LJ observed:

"The encouragement and facilitating of ADR by the court is an aspect of active case management which in turn is an aspect of achieving the overriding objective. The parties have a duty to help the court in furthering that objective and, therefore, they have a duty to consider seriously the possibility of ADR procedures being utilised for the purpose of resolving their claim or particular issues within it when encouraged by the court to do so."

13 Brooke LJ added that ‘uncomfortable costs orders' may be faced where mediation is turned down. ... No costs orders were made to the successful party.

14 Ms. Hoeben also referred to the more recent English Court of Appeal decision in Leicester Circuits Limited v Coates Brothers Plc [2003] EWCA Civ 333. At paragraph 27 of the judgement Lord Justice Judge stated:

“It seems to us that the unexplained withdrawal from an agreed mediation process was of significance to the continuation of this litigation. We do not for one moment assume that the mediation process would have succeeded, but certainly there is a prospect that it would have done if it had been allowed to proceed. That therefore bears on the issue of costs.”

15 It is Ms. Hoeben’s submission that the Applicant has made out a persuasive case that he has satisfied the test of special circumstances and that costs should be awarded in its favour.

16 Ms. Hoeben also submits that the Applicant has satisfied the test of special circumstances for payment of interest. She argues that there are two aspects of the claim that satisfy the special circumstances set out in section 72A(5) of the Act in the Applicant's favour.

17 Firstly, Ms. Hoeben asserts that there was no serious offer to settle the claim. She argued that “taking into account $75,000 in relation to the sale of business agreement which was included in all settlement offers by the Applicant, the amount claimed (if done so by the applicant) together with the sale of business would have been in the vicinity of $118,512.67. No offer of settlement by the respondent came anywhere close to this amount.”

18 Secondly, Ms. Hoeben asserts that the section 72A(5) special circumstances are satisfied by the Respondent's consistent dilatory behaviour to draw out proceedings and an offer being made on the morning of the hearing.

19 Ms. Hoeben submits that the Respondent cannot satisfy the monetary test in relation to 'appropriate settlement sum' under section 72A(6) of the Act, as no monetary amount was included. She argues that this is another factor to take into account in terms of special circumstances relative to interest in favour of the Applicant.

20 In the alternative, the Applicant submits that item 15 of the lease entitles the Applicant to interest, and under clause 5.1.5 of the lease the Applicant is entitled to interest on rent at 15%. Pursuant to section 72A(4)(b) of the Act, section 72A does not apply in relation to any debt on which interest is payable as of right whether by virtue of any agreement or otherwise. It is submitted therefore that section 72A does not apply to the rent component of the award. This being so, the test of exceptional circumstances is not applicable in relation to the rent component. The Applicant submits that the usual principles of interest therefore apply to the rent component of $27,126.64. The Applicant’s submission in relation to interest on outgoings and damages is that the District Court rate of interest applies to these components.

21 Ms. Hoeben submits that if the Tribunal awards interest the general principles apply. She argues that Reynolds JA in Pheeney v Doolan [1977] 1 NSWLR at 601 put the principles correctly at page 614 of the judgement:

“When a cause action arises giving rise to claim for a money sum, whether debt or damages, the whole of the debt or damages ultimately found by the court to be due should in law have been paid at the moment the cause of action (6 November 2000) was complete or at latest, when proceedings were commenced (18 May 2001). This being so, prima facie, the plaintiff is, from the time the cause of action arose, or the institution of proceedings, thenceforth, out of his money until judgment (23 April 2003) and, therefore should have his interest on the whole sum for the whole period ”

22 It follows, in her submission, that the Tribunal should order that the Respondent pay the Applicant interest on the amount awarded from 6 November 2001 to the date of judgment.

The Respondents’ Submissions

23 The Respondent rejects the Applicant’s allegations in respect of her alleged "modus operandi". She asserts that the submissions are without foundation, ought not to have been made and should not be taken into account. It is submitted that the Applicant has identified nothing in the Respondent's conduct of these proceedings that could be considered to be “frivolous, vexatious or lacking in good faith" such as to warrant the making of a costs order. In this regard the Respondent referred to comments of the Tribunal's Appeals Panel in Tu v University of Sydney (No.2) [2002] NSW ADTAP 25 at paragraphs 42 and 43. There the Appeal panel stated:

“42 The sanction of a full costs order against the complainant tends to be reserved for cases where an abuse of process is seen as having been involved, i.e. those cases where the conduct of the complainant was frivolous, vexatious or lacking in good faith.

43 Where a matter is found to be 'misconceived' or 'lacking in substance' there is greater caution in making an adverse costs order. ...”

24 The Respondent submitted in favour of an order that the Applicant pay the Respondent's costs:

“When considering whether or not to make an order for costs it is appropriate to have regard to the reasonableness of the conduct and the success of the parties before it. In this regard, the Respondent notes that the Applicant was unsuccessful before the Tribunal in respect of the majority, in monetary terms at least, of his claim. Specifically, the Applicant sought an order that the Respondent was liable to pay him an amount of at least $90,437.26. However, the Tribunal found that the Applicant did not do everything reasonable to mitigate his losses and ultimately ordered that the Applicant was entitled to an award of less than half that amount. The unreasonableness of the Applicant's conduct is highlighted by the refusal in May 2002 to accept the Respondent's offer of $50,000 to settle this dispute … The offer made in May 2002 however exceeded the amount of the Respondent's subsequent offer and was greater than the amount awarded. The Respondent also notes the Tribunal's findings at paragraph 52 of its Reasons for Decision that the actions of the Applicant in this matter were "most unorthodox, … unusual, … and curious".

25 The Respondent submitted that an unfortunate but inevitable consequence of the Tribunal's finding that it did not have jurisdiction to determine the entirety of the Respondent's claim is that a large part of the dispute between the parties to this matter remains unresolved. The parties will have to re-agitate similar issues before a different Court and if the Respondent is not awarded her costs, the possibility exists that she will be hampered in her ability to prosecute her claim.

26 The Respondent also provided submissions in favour of there being no order as to costs in favour of either party. She argues that there were no findings of the Tribunal and nothing in the conduct of the Respondent that could be described as an abuse of process, such as to warrant the making of a costs order. Rather, the Respondent, sought to resolve all the matters in dispute between herself and the Applicant in a timely and expeditious manner, both by way of informal settlement and by having the entire dispute determined at the one instance in the one forum. The Respondent asserts that the Applicant rejected her settlement offer, one that exceeded the amount that she was ordered to pay to the Applicant.

27 The Respondent submitted her reasonable approach to these proceedings is demonstrated both by her offer to settle, and by her concession that, subject to her claims against the Respondent, her liability to the Applicant in respect of unpaid rent was in the amount of $27,126.64. This concession was noted at paragraph 8 of the Reasons for Decision, and it was this amount that the Tribunal ultimately held was owed in respect of rent. Conversely, the Tribunal found some of the Applicant's conduct to be “most unorthodox, ... unusual, ... curious".

28 The Respondent submitted that there be no order as to the payment of interest. The submission is as follows:

“In paragraph 49 of his affidavit sworn 22 August 2002, the Applicant deposes to a conversation with the Respondent on 24 May 2002 in which the Respondent informed the Applicant that she would like to settle this matter and offered him $50,000 by way of settlement. … The Applicant rejected that offer, As such, these proceedings continued, with two full hearing dates on 27 August and 26 September 2002 respectively and ultimately, the Tribunal ordering the Respondent to pay to the Applicant the sum of $43,512.67.

The Respondent's offer too settle this matter in May 2002 was for an amount well in excess of what is defined to be an "appropriate settlement sum" for the purposes of sub-section 72A(5) of the Retail Leases Act. As such, it is the Respondent's submission that the Tribunal cannot order the payment of interest in respect of the period after 24 May 2002, as no special circumstances warrant the making of such an order.

The amount of $43,512.67 that the Respondent has been ordered to pay comprises 3 separate components. They are, $27,126.64 in respect of unpaid rent, $13,650.00 in respect of damages and $2,736.03 in respect of outgoings.

The Tribunal found that the Applicant elected to terminate the lease on 6 November 3001 and became entitled to damages as at that date. At paragraph 73 of its Reasons for Decision, the Tribunal limited the Applicant's claim for damages to a period of 3 months. It followed that the Applicant was entitled to recover damages from the Respondent in the amount of $13,650.00.

As was held at paragraph 61 of the Reasons for Decision, where a lease has been validly repudiated by a lessee, damages are awarded to the lessor to compensate him or her for loss of the benefit of the lessee's covenants to pay rent and outgoings. To the extent that it compensates the lessor, it is a compensation for the lessee's failure to make future payments of rent. In the Respondent's submission, the Applicant ought not to be entitled to receive interest in respect of payments for future events.

If the Tribunal is of the mind that the Respondent should pay interests on the rent component of the amount ordered to be paid, the Respondent submits that any such interests should only be awarded for the period up until the date of her settlement offer, i.e., 24 May 2002.”

29 With respect to settlement offers, the Respondent asserts that she does not claim and has never claimed that the settlement offer in May 2002 was the last one she made. Rather, the Respondent referred to the May 2002 offer, when compared to what the Respondent was ultimately ordered to pay the Applicant, as a relevant factor in determining whether an award for interest and/or costs should be made. The Respondent also made an offer to settle these proceedings on 27 September 2001, while the Applicant made an offer on 12 October 2001. Both those offers were rejected. The Respondent rejects the allegation that her subsequent offer to settle this matter in September 2002 was not serious.

30 The Respondent asserts that her offer in September 2002 was in effect an offer to settle all claims between the parties, by way of a trade off of the amounts each party alleged the other owed him or her in return for the other party doing likewise. In any event, it is the Respondent's submission that the relevant settlement offer was the one made in May 2002 which, as required by section 72A(6) of the Act, was for a sum in excess of the amount that the Applicant was ultimately awarded.

31 The Respondent further asserts that her offers to settle this matter can in no way be characterised as special circumstances so as to warrant a costs order being made against her. Such a result would be contrary to the intent of section 88 of the ADT Act and contrary to the access objectives which the Tribunal is intended to serve.

32 As to the Applicant’s submissions in relation to alleged failure by the Respondent to participate in mediation, the Respondent asserts that she did attend (with representation) an attempted mediation of this matter in Taree on 1 May 2002. Unfortunately, the settlement offers made by the parties were too far apart and it was not possible to settle the matter at this stage.

33 Additionally, the Respondent asserts that it is quite misleading to quote only part of the letter referred to in the Applicant’s submissions. She cites the full text of the letter as follows:

“Thank you for your letter of 12th October regarding mediation in this matter. Our client was minded to attend and in fact put a "without prejudice" offer to your client. In response to that offer your client seized her plant and equipment from the restaurant purportedly in exercise of his powers under a bill of sale. This had the predictable effect of preventing her from continuing the further operation of her business.

In order for mediation to be successful it is necessary that neither side display an uncompromising attitude towards settlement. Our client feels that the attitude displayed by Mr. Kao has not only been intransigent in the extreme, but has actually been calculated to derail any attempt at mediation. She now feels that any further negotiation would be a complete waste of time. She will not be attending."

34 The Respondent argues that there are no matters contained in the Applicant's submissions that would warrant the making of the orders sought by the Applicant. However, if the usual principles of interest apply, no award for interest should be made for the period after 24 May 2002. That is because on that date the Respondent made an offer to settle these proceedings in an amount that exceeded the amount awarded to the Applicant and the Respondent ought not be required to pay interest on the rent payable after that date.

Findings

35 The common law principle governing costs in civil cases is that costs 'follow the event'. However, section 88 of the ADT Act lays down a different principle, namely, that the Tribunal must be “satisfied” that there are “special circumstances warranting an award of costs”: Wood and Anor v Bergman(No. 2) [2003] NSWADT 175.

36 In Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164, Judicial Member Molloy stated at paragraph 29:

“I am of the opinion that in order to satisfy the test of "special circumstances" one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and those special circumstances would warrant an award of costs.

37 That view has been quoted with approval by several decisions of this Tribunal, most recently in Wood and Anor v Bergman. In that decision Deputy President ADCJ Chesterman also referred to other observations in Gizah Pty Ltd v AXA Trustees Ltd (No. 2) and observed that they were quoted with approval by an Appeal Panel of the Tribunal in the recent decision in Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27. The Deputy President stated at paragraphs 11 and 13:

“11 It is recognised that the Retail Leases Division is unique within the Tribunal, in that it alone deals with commercial disputes between parties who are engaged in trade and commerce for reward. In Gizah , at [22] and [33 - 34], the significance of this for costs orders was explained as follows. Whereas in the context of appeals from administrative decisions the requirement of 'special circumstances' might be interpreted so as not to discourage proceedings by a private individual on account of the risk of an adverse costs order, no such consideration should apply in the context of retail lease disputes. The 'commerciality' of the Retail Leases Division calls for an interpretation quite different from that which might be adopted in any other Division of the Tribunal.”

“13. The proposition, however, that 'special circumstances' should be interpreted differently within this Division, because it deals with relationships of a commercial character, does not imply that costs should simply follow the event. This was made clear in Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 at [4].”

38 The question to be determined is whether in the circumstances of this case there are special circumstances that warrant the making of an order for costs. The expression “'special circumstances” is to be given its normal meaning. The question of whether the facts that had been proved constituted “special circumstances” is a question of fact: Randi Wiks Pty Limited v Pokana Pty Limited (RLD) [2003] NSWADTAP 27 at paragraph 27.

39 The primary submissions on behalf of the Applicant appear to relate to the Respondent’s conduct of the proceedings and that the application was wholly successful. The Applicant’s submissions with respect to the Respondent’s conduct of the proceedings are rejected. As to the Applicant’s submissions with respect to the success of the application, I agree with the comments of Judicial Member Molloy in the unreported decision on an application for costs in Randi Wiks Pty Limited v Pokana Pty Limited [2003] NSWADT 11 March 2003 where he observed:

“The plain fact that a party wins or loses or is successful or unsuccessful on a point does not mean that they are entitled to or should be the subject of a costs order. I think that principle is plain. What the Parliament has done in section 88 is leave it to the relevant Tribunal to determine what are special circumstances in the particular circumstances of a matter before it, and as there are many permutations and combinations of what may amount to special circumstances then that simply requires the Tribunal to search and find, if there are any special circumstances, in the particular matter.”

40 That observation was endorsed by the Appeal Panel in Randi Wiks Pty Limited v Pokana Pty Limited (RLD) [2003] NSWADTAP 27 at paragraph 42. If it were otherwise, then in effect the common law rule that costs follow the event, which Parliament has sought to displace, would be reinstated.

41 I note the strong argument presented by Ms. Hoeben with respect to the alleged failure by the Respondent to participate in mediation. While I agree with the legal principal, I do not accept that it is applicable in the circumstances of this matter. It is clear that the parties did in fact participate in an attempted mediation and the full text of the Respondent’s letter of 2 October 2001 clearly explains her reasons for not attending further mediation. These circumstances are quite different to those considered by the English Court of Appeal decision in Dunnett v Railtrack and Leicester Circuits Limited v Coates Brothers Plc.

42 Similarly, I do not accept that the reasons proffered by the Respondent justify an award of costs. In these circumstances, there is nothing that falls into the category of "special" in the circumstances that have been urged upon me. I am not satisfied that the circumstances warrant any interference with the position that each party should bears their own costs. I am therefore unable to accede to the application that there be a costs order. Consequently, I make no order as to costs in relation to the whole of these proceedings.

43 With respect to the issue of interest, I am not satisfied that any of the offers of settlement made by the Respondent were an “appropriate settlement sum” so as to prevent the recovery of interest by the Applicant pursuant to section 72A(5) of the Act. It is apparent that the offers of settlement related both to matters which were determined and to matters which were not ultimately decided in the substantive matter. Therefore, it is not possible to ascertain whether the offer exceeded the amount subsequently ordered to be paid by the Respondent. Given that these waters are muddied, it is then a matter of discretion as to whether interest is payable.

44 In the circumstances, I am satisfied that an order for the payment of interest is justified. I reject the Respondents arguments to the contrary. In my view it is appropriate that the Respondents pay to the Applicant interest on the amount awarded from 6 November 2001 to the date of the decision i.e. 23 April 2003. That interest should be paid at the applicable District Court rate.

45 The applicable interest rate from 6 November 2001 to 28 February 2002 was 10%. Thereafter the applicable interest rate was 9%. On this basis, an amount of $1,359.03 is payable for the period 6 November 2001 to 28 February 2002. An additional $4,495.51 is payable for the period 28 February 2002 to 23 April 2003. The total of these amounts is $5,854.54. This amount is to be paid within 21 days of these reasons.

46 I note that the Applicant has also sought an order that the Respondent pays interest on the amount awarded on the outstanding award from 21 days after judgment until the amount is paid. Section 72A of the Act makes no provision for the order of such interest. The Applicant will need to pursue this application elsewhere.

Orders

1. The Applicant's application for costs is refused.

2. The Respondent is to pay interest pursuant to section 72A Retail Leases Act 1994 on the amount ordered in the substantive matter. Interest is payable at the District Court judgment debt rate for the period 6 November 2001 to 23 April 2003. The total amounts payable is $5,854.54. This amount is to be paid within 21 days of these reasons.