Kokinovski v v & v Landscapers Pty Ltd (RLD)

[2010] NSWADTAP 47

Appeal Panel - Internal

CITATION:	Kokinovski v V & V Landscapers Pty Ltd (RLD) [2010] NSWADTAP 47
PARTIES:	APPELLANT John Kokinovski RESPONDENT V & V Landscapers Pty Ltd Richard Anthony Cusumano Susan Deborah Cusumano Sam Chiappalone Mimi Chiappalone
FILE NUMBER:	099064
HEARING DATES:	25 February 2010
SUBMISSIONS CLOSED:	16 March 2010
DATE OF DECISION:	29 June 2010
BEFORE:	Chesterman M - Deputy President
CATCHWORDS:	Appeal – application for leave to proceed – notice of appeal lodged out of time – retail shop lease
DECISION UNDER APPEAL:	V & V Landscapers Pty Ltd v Kokinovski, Unreported, Administrative Decisions Tribunal, 23 July 2009
FILE NUMBER UNDER APPEAL:	095030
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Interpretation Act 1987 Retail Leases Act 1994
CASES CITED:	BE v University of Technology Sydney (GD) [2009] NSWADTAP 22 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 Ministry of Transport v Kharbanda (GD) [2006] NSWADTAP 61 NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23 Ull Pty Ltd v Adwell Pty Ltd (RLD) [2010] NSWADTAP 15 V & V Landscapers Pty Ltd v Kokinovski, Unreported, Administrative Decisions Tribunal, 23 July 2009
REPRESENTATION:	APPELLANT D O’Connor, barrister RESPONDENT G Kinsey, solicitor
ORDERS:	1. Leave to institute the appeal out of time is refused 2. The appeal is dismissed 3. Unless within 21 days the Appellant files and serves submissions showing why costs should not be awarded against him, the Appellant is to pay on a party-party basis the Respondents’ costs of and incidental to this appeal 4. If submissions are filed pursuant to Order 3, the Respondents must file and serve submissions in response within a further 21 days 5. The Appeal Panel will determine the matter of costs without a hearing, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

REASONS FOR DECISION

Introduction

1 This decision relates to an application for leave to proceed with an appeal that has been lodged outside the prescribed time limit. An appeal against an ‘appealable decision’ of the Tribunal at first instance ‘must be made within 28 days after the Tribunal gives the party oral reasons or written reasons for the appealable decision (whichever is the later)’: Administrative Decisions Tribunal Act 1997 (the ‘ADT Act’), section 113(3)(a). But an appeal lodged out of time may proceed if leave is granted by the Appeal Panel: section 113(3)(b).

2 The decision whether to allow an appeal to proceed out of time involves the exercise of an ‘interlocutory function’ of the Tribunal: ADT Act, section 24A(1)(d)). An Appeal Panel may be constituted for the purpose of exercising an interlocutory function by one presidential judicial member: section 24A(2)(a). Accordingly, the Panel is constituted for the present purpose by myself, sitting alone.

Procedural history

3 The dispute in these proceedings arises out of the alleged non-payment of rent due from the Appellant Lessee, John Kokinovski, to the Respondent Lessors under a lease governed by the Retail Leases Act 1994 (‘the RL Act’). The lease commenced on 16 February 2004 and had a term of three years. The permitted use was ‘lunch shop’. During April 2006, the Lessee abandoned the premises.

4 On 14 November 2006, the Lessors commenced proceedings in the Local Court at Liverpool, claiming $13,722.90 as unpaid rent due for the period from 16 February 2006 to 1 November 2006, together with interest and costs. Early in March 2007, the Lessee, who was then represented by Mr Wlodek Kozlowski, solicitor, filed verified grounds of defence. On 26 October 2007, by consent, the proceedings were transferred to the Tribunal (file 075206). On 13 December 2007, the Tribunal referred the dispute between the parties to mediation, as required by section 68 of the RL Act. The parties did not attend mediation. At subsequent directions hearings on 28 February and 13 March 2008, neither party appeared. At the later hearing, having given due warning to the parties, the Tribunal struck out the proceedings.

5 On 2 March 2009, the Lessors instituted the current Tribunal proceedings (file 095030), making essentially the same claim as they had made in the Local Court. There were directions hearings on 26 March and 30 April 2009. At these hearings and all subsequent hearings, Mr Graham Kinsey, solicitor, appeared for the Lessors.

6 At the directions hearing on 30 April 2009, Ms Ljupka Stolloska, solicitor, of Astoria Lawyers appeared for the Lessee. She had previously filed a Notice of Representation by Legal Practitioner. At this hearing, the matter was set down for further directions on 25 June 2009.

7 On 25 June 2009, however, neither Ms Stolloska nor the Lessee appeared. Although there is no verified evidence as to why Ms Stolloska failed to appear, the Lessee has alleged, and the Lessors do not dispute, that on the previous day she advised the Lessee’s solicitor, Ms Juli Kokinovska, by email that she would not be appearing.

8 At this directions hearing on 25 June 2009, the matter was set down for a hearing on the merits on 16 July 2009. On 25 June 2009, the Registry wrote to Ms Stolloska to advise her accordingly. The letter included a statement that if there was no appearance for the Lessee, orders might be made against him without further notice.

9 On 13 July 2009, pursuant to a written request from Mr Kinsey, the date of the substantive hearing was changed from 16 July to 23 July 2009.

10 On 19 July 2009 (a Sunday), a fax, dated 17 July, was sent from Astoria Lawyers to the Registry ‘confirming’ that Ms Stolloska no longer acted for the Lessee.

11 On 21 July 2009, an officer in the Registry, having ascertained the Lessee’s address and mobile telephone number from a clerk in the office of Astoria Lawyers, spoke to the Lessee on the telephone and advised him that the matter was set down for hearing on 23 July. She also conveyed this advice in a letter sent to him by priority post.

12 At the hearing on 23 July 2009, there was no appearance by or for the Lessee. The Tribunal found that he was aware of the proceedings and of their listing for hearing on that day. Mr Kinsey handed up an affidavit sworn on 22 July 2009 by Ms Karen Cummings, a property manager employed by L J Hooker Commercial, as verification of the Lessors’ claim for unpaid rent.

13 In an ex tempore decision, the Tribunal held, referring to this affidavit, that the Lessee was liable for arrears of rent to the Lessees in the sum of $15,456.25 including GST. It ordered in addition that the Lessee should pay interest at the prescribed rate and should pay $3,000 to the Lessors on account of costs.

14 On 24 July 2009 (a Friday), a Notice of Decision, containing these particulars and incorporating short reasons for the decision, was posted to the Lessee at the address previously furnished by him to the Registry. The Notice included a statement advising him of his right under section 89 of the ADT Act to apply within 28 days for written reasons for the decision and indicated that he ‘may have a right of appeal’. It was accompanied by an explanatory memorandum outlining the procedure for instituting an appeal. This memorandum incorporates the text of section 113 of the ADT Act, including the statement in subsection (3) that appeals must be made within 28 days or within ‘such further time as the Appeal Panel may allow’. The Notice of Decision and accompanying memorandum were also posted to the Lessors’ solicitors.

15 There was no evidence of any delay in furnishing the Notice of Decision, with reasons, to the parties. If it is to be assumed in the Lessee’s favour that the date on which the Tribunal ‘gave’ him written reasons is the date on which they were, or must be deemed to have been, received by him, they were ‘given’ on 30 July 2009. This is the fourth working day after the Notice was posted: see the Interpretation Act 1987, section 76. The time prescribed for his appeal therefore expired on 27 August 2009.

16 On 4 September 2009, at the request of the Lessors, the Registry issued a certificate under section 82 of the ADT Act stating the amounts owed by the Lessee to the Lessors under the Tribunal’s decision of 23 July 2009. The purpose of such a certificate is to enable a party in whose favour the Tribunal has ordered the payment of money to register the Tribunal’s decision in a court, whereupon the decision operates as a judgment of the court. The Registrar sent a copy of this certificate to the Lessee.

17 The Lessee filed a Notice of Appeal on 27 October 2009. He accordingly needed leave under section 113(3)(b) of the ADT Act in order to prosecute his appeal. In the Notice of Appeal, he furnished three reasons, which are set out below, for the lateness of the Notice. The Lessors filed and served a Reply to the Notice of Appeal on 22 February 2010.

18 The hearing of the Lessee’s application for leave to proceed with his appeal took place before me on 25 February 2010. On behalf of the Lessors, Mr Kinsey opposed this application. The Lessee was represented by Mr O’Connor, who indicated that he had only recently been briefed to appear. I admitted certain documents into evidence and heard short oral submissions. In order to give full scope to the Lessee to present his case, I directed that the Lessee should file and serve supplementary submissions on or before 9 March 2010 and the Lessors should do likewise on or before 17 March 2010.

19 The Lessee filed submissions on 9 March 2010, followed by a slightly enlarged version on 11 March 2010. Both versions were unsigned. The latter version is the one that I will take into account. Mr Kinsey filed the Lessors’ submissions on 17 March 2010, having transmitted them to the Registry by fax on the previous day.

20 On 19 March 2010, the Lessee filed a further version of his submissions, together with an unsigned and undated statement prepared in the name of his sister, Ms Juli Kokinovska. Attached to the statement, which comprised 48 short paragraphs, were 36 pages of copied documents.

21 In a letter to the Registry dated 25 March 2010 (a copy of which was sent to the Lessee’s ‘representative’), Mr Kinsey contended that in reaching my decision I should not take account of this material filed by the Lessee on 19 March, since it was filed out of time and had not been answered in the Lessors’ submissions.

22 My conclusion regarding this contention is as follows. While no doubt it is well founded and receives further support from the failure to include this material in a duly sworn affidavit, I have thought it appropriate to read through the material, in case it was such as to persuade me that to leave it wholly out of account would give rise to a clear miscarriage of justice. Having done so, I am satisfied that whether or not it is taken into consideration, the outcome of this application by the Lessee must be the same.

Relevant principles governing the grant of leave

23 In a number of Appeal Panel decisions (see for example Ministry of Transport v Kharbanda(GD) [2006] NSWADTAP 61; NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23; BE v University of Technology Sydney (GD) [2009] NSWADTAP 22) and Ull Pty Ltd v Adwell Pty Ltd (RLD) [2010] NSWADTAP 15), the following factors, listed initially in Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6 – 7], have been held to bear upon the exercise of the Panel’s discretion to grant leave for an appeal to proceed:-

-The reason for the failure to lodge the appeal within the prescribed time.

-The extent of the appellant’s knowledge of the relevant statutory provisions.

-The adequacy of the information conveyed to the appellant at the time the decision was notified to him or her, both as to the reasons for decision and of the appellant’s entitlement to appeal.

-The length of the delay in lodging the appeal.

-The diligence shown by the appellant in lodging the appeal after it came to his or her notice that there were circumstances justifying an appeal.

-The nature of the decision below and its impact on the appellant’s rights.

-The possible prejudice to the respondent.

-The merits of the appeal.

24 It may be observed that the first five matters in this list are closely connected with each other. In different ways, they relate to the extent to which the time taken to lodge the relevant appeal exceeded the stipulated period of 28 days and the reasonableness of the appellant’s explanation for this delay. They can be treated in conjunction as one single factor.

25 At [7], the Appeal Panel in Lupevo also held that ‘prima facie, proceedings commenced outside the prescribed period will not be entertained’. A corollary to this is that an appellant seeking leave for an appeal filed out of time to proceed bears the onus of proof of any relevant factual matters.

26 In NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23, the Appeal Panel, constituted by the President of the Tribunal, said at [5 – 6]:-

5 In considering whether to grant leave to appeal out of time, the governing consideration is the interests of justice in the circumstances. Time lines are a usual feature of any organised system of administration, including the administration of justice. The party who secures a positive order at first instance should be able to expect, once the appeal period has passed, that the order is now final and not contestable. Sometimes there may be good reasons why the unsuccessful party did not file an appeal in time, and now seeks leave to have the appeal accepted out of time.

6 The party seeking leave should have a cogent explanation for failing to meet the time lines. If there is a cogent explanation, it is necessary to consider the prejudice that might be suffered by the successful party in reopening the matter. If the successful party has taken steps based on the decision, it may well be that it would be unfair on that basis alone to reopen the decision. Further, there is the issue of whether allowing the appeal to proceed would waste the (limited) resources of the Tribunal and be burdensome to the respondent because the appeal grounds are so weak that there are little or no prospects of the appeal being successful.

27 In proceeding now to discuss the Lessee’s application, I will consider in turn what may be called the Lupevo factors, modified by me as indicated at [24] above.

The length of the delay in appealing and the reasonableness of the Lessee’s explanation for this delay

28 The length of the delay. The Notice of Appeal described the decision under appeal as ‘Decision posted on 4th September 2009. Given in file 095030’. The reference to 4 September 2009 may have been attributable to the fact that this was the date of the certificate issued to the Lessors under section 82 of the ADT Act.

29 Although the Notice was filed on 27 October 2009, it was dated 1 October 2009. It bore the Lessee’s signature and the space on the form for providing particulars of the Appellant’s legal representative was left blank.

30 The delay in filing the Notice of Appeal was significant – the period of two months between 27 August and 27 October 2009.

31 The Lessee’s explanation. In the Notice, the Lessee gave the following explanation for this delay:-

-I have filed a complaint to the office of the legal services commissioner about my previous lawyer on the 3rd of August 2009.

-I am awaiting a response from the office of the legal service commissioner.

-I have a medical certificate in place.

32 Elsewhere in the Notice, the Lessee claimed that he could not file a ‘proper appeal’ because his ‘former lawyer’ was denying him access to his file.

33 In his submissions dated 11 March 2010, the Lessee provided the following information by way of further explanation:-

(a) The medical certificate, given by a registered psychologist, stated that as from early 2009 he was in a continuing state of severe depression, caused by the failure of the business that he had sought to carry on in the premises leased to him by the Lessors. In consequence, he did not address the question of an appeal himself and did not seek assistance from his family or elsewhere.

(b) Ms Kokinovska, having become aware of the issue ‘by coincidence’, immediately made an ‘application to appeal’ on 1 October 2009.

(c) Neither the Lessee nor Ms Kokinovska was a ‘legal professional’ or had had exposure to ‘legal training or a legal work environment’.

(d) The Lessee had no knowledge regarding his entitlement to appeal or the statutory provisions governing appeals because at the relevant time he was suffering from depression, he was a person of limited education and his previous lawyer did not advise him on these matters.

34 The admitted evidence and some correspondence contained in the Registry’s files provide further elaboration of three matters mentioned in the Notice of Appeal and the submissions. These are the role played by the Lessee’s former lawyer, the nature and duration of the Lessee’s depressive illness and the ‘application to appeal’ made on 1 October 2009.

35 The ‘former lawyer’. The ‘former lawyer’ to whom the Lessee referred is Ms Stolloska. Her involvement in this case is outlined above at [6 – 10].

36 On 3 August 2009, the Lessee sent a complaint to the Office of the Legal Services Commissioner (the ‘OLSC’) about the conduct of Ms Stolloska. A copy of this complaint was not tendered. The evidence that I admitted did however include a copy of a letter dated 18 September 2009 from the OLSC to Ms Stolloska. This letter reveals that his complaint related to her representation of him in the Tribunal and had three components: (a) failure to provide a costs agreement or costs disclosure; (b) termination of the retainer without reasonable notice to him; and (c) behaving ‘unprofessionally’.

37 In a letter dated 4 December 2009 to the Registrar, the Lessee referred to this complaint, adding that he understood from a telephone conversation on 30 November 2009 with an officer at the OLSC that no further progress had been made with it.

38 The Lessee’s depressive illness. A medical certificate dated 7 December 2009 was provided by Mr Viet Thang Tran. It referred to five consultations with the Lessee during 2009, occurring on 17 June, 16 August, 16 September, 14 October and 4 November. It certified that the Lessee suffered depression as a result of a ‘financial crisis that stemmed from his loss of business’.

39 The ‘application to appeal’. The Registry’s files provide an explanation for the fact that although the date of filing of the Notice of Appeal was 27 October 2009, the Notice itself was dated 1 October 2009 and the Lessee’s submissions refer to the filing of an ‘application to appeal’ by Ms Kokinovska on the earlier date.

40 The files contain a copy of a letter dated 13 October 2009 from the Registry to the Lessee. It stated that the Registrar, after considering an application for waiver of the filing fee for a notice of appeal in these proceedings, had directed that the filing fee of $280 should be paid, on the ground that the Lessee had ‘means to pay the fee’. The Notice of Appeal, which had evidently been sent to the Registry with the application for waiver, was enclosed so that it could be filed along with payment of the fee. This occurred on 27 October 2009.

41 The Lessors’ submissions. In his submissions on behalf of the Lessors, Mr Kinsey argued that the Lessee had clearly failed to provide a reasonable explanation for the delay of two months in filing his Notice of Appeal. In support of this contention, Mr Kinsey emphasised five specific matters.

42 First, none of the matters alleged by the Lessee as explanation for the delay was contained in sworn evidence. It followed that the documents admitted constituted the only evidence that I should take into account.

43 Secondly, Ms Stolloska advised the Lessee as early as 24 June 2009 that she was no longer acting for him. Her withdrawal from his side of the case therefore had no bearing on the his failure, after receiving the Notice of Decision late in July, to file a Notice of Appeal within the prescribed time.

44 Thirdly, the certificate attesting to the Lessee’s depressive illness did not state how severe it was, or indeed whether it would have rendered him unable to file a notice of appeal. This was a significant defect in his case because, as he himself revealed, on 3 August 2009 (soon after he must have received the Notice of Decision), he was ‘well enough to write a letter to the Legal Services Commissioner but not to file the appeal within time’.

45 Fourthly, the information conveyed to the Lessee by the Registry regarding his right to appeal was entirely sufficient to enable him to understand that if he wished to appeal he had to do so within 28 days.

46 Fifthly, there was no explanation as to why the Notice of Appeal was dated 1 October 2009 but not filed until 27 October.

47 My conclusions. In my opinion, the reasons put forward by the Lessee for the significant delay of two months in filing the Notice of Appeal were unsatisfactory in a number of respects. His explanation was neither reasonable nor ‘cogent’ (to use the term employed by the Appeal Panel in NZ v Commissioner of Police, New South Wales Police (GD) [2008] NSWADTAP 23). I agree, generally speaking, with Mr Kinsey’s submissions on the matter and need only add a few remarks by way of qualification and elaboration.

48 I am prepared to accept that the Lessee’s depressive illness impaired significantly his capacity to take the necessary steps. But I agree with Mr Kinsey’s submission that if on 3 August 2009 he was capable of sending a complaint to the OLSC regarding Ms Stolloska’s conduct, he cannot have wholly lacked the capacity to do something about the situation confronting him in these proceedings.

49 The Lessee suggested in the Notice of Appeal that he was hampered because Ms Stolloska still possessed his file. But no further evidence, even unsworn evidence, was put before me to substantiate this allegation. Even if it were true, he could still have filed a Notice of Appeal, referring at least to the fact that the Tribunal made orders against him in a hearing at which he was not present in person and was not represented.

50 Mr Kinsey’s submission that there was no explanation for the discrepancy between the date of the Notice of Appeal and the date of its filing is answered, to some extent, by the evidence that Ms Kokinovska applied unsuccessfully for a waiver of the filing fee. But there was still an unexplained delay between the date when she became aware that this application had been rejected (at the latest, the fourth working day after 13 October 2009) and the date of filing (27 October). At this stage, neither she nor the Lessee could reasonably claim to have been unaware of the need to avoid any further unnecessary delay.

The nature of the decision under appeal and its impact on the Lessee’s rights

51 The decision under appeal was to the effect that the Lessee was to pay to the Lessors the sum of $18,456.25, representing unpaid rent and costs, together with interest at the prescribed rate on $15,456.25 since 1 November 2006. A certificate enabling the Lessors to register judgment for these amounts in an appropriate court and take action to enforce the judgment has been issued to them.

52 In circumstances and for reasons briefly outlined below, the Lessee has claimed in the past, and continues to claim, that on account of misrepresentations made by and behalf of the Lessors before the lease was executed he should not be required to pay these amounts. The effect of the decision under appeal is that he is debarred from raising these matters by way of defence and/or cross claim.

53 The decision can accordingly be described as one bringing finality to a relatively small-scale monetary dispute between the parties, without the unsuccessful party having at any stage placed before the Tribunal any evidence or arguments demonstrating that he should not be held liable to pay the amounts ordered to be paid by him.

The possible prejudice to the Lessors

54 Mr Kinsey submitted that if the appeal were allowed to proceed, the Lessors would suffer severe prejudice. They had already incurred considerable expense in pursuing their claim and the period of time since they commenced proceedings in the Local Court (more than three years) was substantial. The further expense and delay that they would suffer would be substantial if the Lessee were granted leave to prosecute his appeal.

55 The Lessee’s submissions on this question were to the effect that the Lessors had received a larger sum by way of rent than they were entitled to, and would therefore not be prejudiced at all if, following a hearing of the appeal, the order made in their favour was set aside.

56 It is sufficient for me to observe here that the Lessors’ claim that they have already incurred considerable costs and suffered from a long delay in endeavouring to recover a relatively small sum from the Lessee does add weight to their argument that further expense and delay would amount to substantial prejudice.

The merits of the appeal

57 The Lessee’s submissions. The gist of the Lessee’s argument on this matter was that no account had been taken in these proceedings of the reasons why he should not have been held liable for the arrears of rent that the Lessors had claimed. These reasons were based on two misrepresentations allegedly made to him by or on behalf of the Lessors during the negotiations leading up to execution of the lease.

58 The first and most significant of these representations was that the Lessors had obtained approval from Liverpool City Council for the premises to be used for the permitted use of ‘lunch shop’. Relying on this, the Lessee entered into the lease. It later emerged that the Council approval was only for retail use of the premises, not for any purpose involving the provision of food. After commencement of the lease in February 2004, substantial works had to be carried out on the premises, in the course of which the Lessee could not conduct business.

59 In a letter dated 18 May 2007 to Mr Kinsey, which I admitted into evidence, Mr Kozlowski, who then acted for the Lessee, outlined in general terms the circumstances of this misrepresentation and the effect that the delay in obtaining Council approvals had on the Lessee’s business. His letter included the following two paragraphs:-

It is our client’s position that the project had Liverpool City Council’s approval for a retail tenancy but not approval for a lunch shop as advertised in the Real Estate Agent’s documentation and on the Lessor’s Disclosure Statement.

Owing to the inappropriate approval our client was delayed while the Lessor obtained Council approval for a lunch shop.

Only after the Development Approval was granted on 29 June 2004, and the Lessor obtained an occupation certificate could our client then proceed with obtain ( sic ) the relevant approvals fro the internal fitout.

Our client then obtained an interim occupation certificate on 5 August 2004 and a final occupation certificate on 12 September 2007 ( sic ).

60 Mr Kozlowski also referred in this letter to certain Council documents, the dates of which (as quoted by him) suggested that the year in which the interim and final occupation certificates were granted was in fact 2005.

61 In the Lessee’s submissions, it was claimed initially that these two certificates were granted on 5 August 2005 and 12 September 2005 respectively, but subsequently that the latter date was 12 September 2004. It was also asserted that during the currency of the lease the Lessee caused ‘many letters’ to be sent to the Lessors complaining that he could not commence business without the requisite consents from the Council.

62 Secondly, the Lessee alleged misrepresentations to the effect that certain changes would be made to the roads near the premises, with the effect of enhancing business opportunities for him.

63 In the file on the Local Court proceedings, which was remitted to the Tribunal pursuant to the order transferring them, the defence filed by Mr Kozlowski and verified by the Lessee was based on these two alleged misrepresentations.

64 The Lessors’ submissions. In his oral submissions at the hearing before me, Mr Kinsey pointed out that the documents annexed to the affidavit of Ms Cummings, on which the Tribunal based its decision (see [12 – 13] above), included copies of five letters from the Lessee or Ms Kokinovska to LJ Hooker written respectively on the following dates in 2005: an unspecified date in March, 7 October, 2 December, 12 December (two letters). Each of these letters gave set out reasons why the rent was not paid up to date. But in none of them, Mr Kinsey maintained, was there any claim by the Lessee that this was due to misrepresentations such as he now alleged.

65 Mr Kinsey also submitted that the Lessee’s submissions did not in any way address the correctness of the Tribunal’s decision on 23 July 2009 granting to the Lessors the relief that they sought. It was not suggested in these submissions that the Tribunal should have refrained from hearing and determining the Lessors’ claim ex parte, and no excuse or explanation was offered for the Lessee’ failure to attend the hearing on that day.

66 My conclusions. It is useful first to point out that Mr Kinsey’s depiction of the five letters described in the penultimate paragraph was not entirely accurate. In the first of these letters, Ms Kokinovska mentioned that the shop was not yet open. The second, which was written by the Lessee, bears the following annotation in handwriting:-

Please note: What happened to the rent I payed ( sic ) when the contract was as signed & payed rent til the 1st April 03 ( sic ) from Jan 03 when I wasnt allowed to enter the premises? (due to Ricks OCCUPATION CERT)

67 In view of these features of the letters written in 2005, of the contents of Mr Kozlowski’s letter to Mr Kinsey and of the claims made in the defence filed in the Local Court, it may well be that the Lessee relied on a representation, made by and/or on behalf of the Lessors, that the commencement of his lunch shop business (being the permitted use in the lease) would not be delayed by any need to obtain Council consent.

68 It is one thing, however, to conclude that there might have been such a misrepresentation and that the Lessee might have relied on it. It is quite another to rule that, if the opportunity now arose, the Lessee could mount even an arguable case (let alone a successful one) that in view of these matters he should recover damages. The legal and evidentiary hurdles that he would encounter include the following: (a) explaining why at the commencement of the lease he did not make much more of his complaint on this score; (b) explaining why his letters in October and December 2005 did not mention the matter at all; (c) putting together a more coherent and detailed account (with the important dates identified precisely) of the relevant events; (d) dealing with the counter-argument that any claim based on the alleged misrepresentations could not be allowed to lie fallow for many months; and (e) proving that his business would have been profitable if he had been able to commence it with relatively little delay. To complete these tasks some five or six years after the events in question would be difficult, if not impossible.

69 A more fundamental problem with the Lessee’s submissions on this question of merits is that they did not address at all the correctness of the Tribunal’s decision on 23 July 2009 to hear the Lessors’ claim ex parte and make the orders that it did in default of his appearance. At no point did the Lessee deny that on 21 July 2009 an officer in the Registry advised him by telephone that the hearing would take place two days later. He also did not deny receiving the letter that the officer sent to him on 21 July by priority post. Everything that he submitted about his failure to appear focused on the failure of Ms Stolloska to represent him at the directions hearing on 25 June 2009. After this hearing, he had nearly one month in which to come to terms with the fact that he no longer had legal representation. But he appears to have done nothing to remedy his situation.

70 I accept, subject to doubts expressed above at [48], that the Lessee’s failure to take important steps required of him in these proceedings might well have been attributable to his depression. But in my assessment of the merits of the appeal that he now seeks to prosecute, the fact that he failed to make any attempt to bring before the Tribunal at first instance the grounds of defence that he now asserts in applying for leave to appeal must count as a significant negative factor.

My orders

71 My principal conclusions regarding what I have called the Lupevo factors can be summarised as follows. The Lessee’s explanation for the significant delay in filing his Notice of Appeal is unsatisfactory in a number of respects. To reject his application for leave to appeal would have a significant impact on his rights, namely, that the grounds on which he claims not to be liable to the Lessors for the amount ordered by the Tribunal would not even come for consideration before an Appeal Panel. On the other hand, if his application were granted, both the expenditure by the Lessors of further funds to recover a relatively modest sum from him and the incurring of yet more delay would be distinctly prejudicial to them. The merits of the appeal are questionable, to say the least, This is not only because of the legal and evidentiary difficulties confronting the Lessee, but also because he failed, without advancing any excuse other than his depression, to make any attempt at all to put his grounds of defence before the Tribunal despite having received notice of a forthcoming hearing on the merits of the Lessors’ claim.

72 In so far as depression has played a role in the Lessee’s failure to take important steps in these proceedings, he is entitled to some sympathy. But having regard to the conclusions summarised in the preceding paragraph and to the principles outlined above at [23 – 25], it is clear to me that his application for leave to appeal must be dismissed.

73 In his submissions, Mr Kinsey advised that the Lessors, if successful, would seek their costs of this application. By virtue of section 77A of the RL Act, awards of costs in Tribunal proceedings (including appeal proceedings) under this Act are governed by section 88 of the ADT Act. Section 88 commences as follows:-

(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:…

74 Within subsection (1A), there then follows a list of factors that the Tribunal must take into account in deciding whether it is ‘fair’ to award costs. Under subparagraph (c) of this subsection, a factor to be taken into account in determining whether it is ‘fair’ to award costs is ‘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’. In recent Appeal Panel decisions under section 88, it has been said more than once that costs should generally be awarded against an appellant if the appeal had no reasonable prospects of success.

75 For reasons set out above, my provisional opinion is that the grounds urged by the Lessee in support of his application for leave to appeal must be characterised as distinctly weak. It appears to me to have been an application with no reasonable prospects of success. An award of costs to the Lessors would therefore appear ‘fair’.

76 These conclusions are provisional only. Directions set out below provide an opportunity for them to be reconsidered.

77 I direct as follows. Unless within 21 days the Appellant files and serves submissions showing why costs should not be awarded against him, the Appellant is to pay on a party-party basis the Respondents’ costs of and incidental to this appeal. If such submissions are filed, the Respondents must file and serve submissions in response within a further 21 days. The Appeal Panel will determine the matter of costs without a hearing, pursuant to section 76 of the ADT Act.