Li v Williams (No 2)

CITATION:	Li v Williams (No 2) [2005] NSWADT 275
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Si Cheng Li RESPONDENT Jeffrey Williams
FILE NUMBER:	055080
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/26/2005
DATE OF DECISION:	12/02/2005
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Claim for relief against forfeiture
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Gizah Pty Limited v. AXA Trustees Limited (No. 2) [2001] NSWADT 164 Petria Pty Limited v. Makhoul [2005] NSWADTAP 12 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSW ADTAP 27 Sotiropoulos v. Mattana Coiffure (No. 2) Pty Limited [2004] NSWADTAP 43 Thalassa Pty Limited v Hawkesbury River Marina Pty Limited [2005] NSWADTAP 48 Trust Company of Australia Ltd v Craig & Ors [2005] NSWADT 65 Wood & Anor v Bergman (No 2) [2003] NSWADT 175
REPRESENTATION:	APPLICANT In person RESPONDENT K Yardy, solicitor
ORDERS:	The Applicant is to pay the Respondent’s costs of two hours of time spent at the Tribunal by the solicitor for the Respondent

1 The Applicant is the lessee of two offices at the rear of the ground floor of 262 Liverpool Rd Ashfield (“the Premises”). The Respondent is the licensee of the Hotel that adjoins the Premises and is a director of a company that has owned one third of the freehold of the Premises as tenants in common since 14 July 2004. The premises are part of a larger title of land, which is occupied by businesses that include a hotel, solicitor's office, and an accountant's office.

2 In the substantive matter the Applicant asserted that the Lease is governed by the Retail Leases Act 1994 (“the Act”) and that therefore his claim is a "retail tenancy claim" in respect of which the Tribunal has jurisdiction in accordance with Section 72 of the Act. He sought an order pursuant to section 72(1)(c)(iv) of the Act that the Respondent refrain from taking any action in relation to a Notice to Quit.

3 The application was heard and determined on 20 June 2005. On that day I determined that the application should be dismissed for want of jurisdiction and the issue of costs was reserved. I subsequently provided written reasons for the decision. The facts of the case are referred to in those reasons. The Respondent has sought an order for costs and each party has filed written submissions in relation to the issue.

Principles Governing the Awards of Costs

4 Section 77A of the Act expressly provides that the Tribunal may award costs under Section 88 of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) in respect of proceedings commenced by an application under the Act.

5 Section 88 (1) of the ADT Act provides that the Tribunal may award costs in relation to proceedings in the Tribunal but only if it is satisfied that there are special circumstances warranting an award of costs.

6 There are two hurdles to overcome. It is firstly necessary…