Makris v Lafiatis - [2008] NSWADT 189

CITATION: Makris v Lafiatis and anor [2008] NSWADT 189

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Zois Makris
RESPONDENTS
George Lafiatis
Vicki Lafiatis

FILE NUMBER: 075035

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 27 June 2008

DATE OF DECISION:
4 July 2008

BEFORE: Rickards K - Judicial Member

CATCHWORDS: Contempt

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997

CASES CITED: Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
Registrar of Court of Appeal v Maniam (No.1)[1991] 25 NSWLR 459
Witham v Holloway [1995] 183 (CLR) 525

REPRESENTATION:
APPLICANT
J Theodoropoulos, solicitor
RESPONDENTS
No appearance

ORDERS: The application for reports pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is declined.

REASONS FOR DECISION
1 On 24 May 2007 I made certain orders in these proceedings including the following:

“I order the law firm Neil Scott Lawyers to produce to the Tribunal within fourteen days all documents relating to the premises at 320 Bronte Road, Waverley relating to the lease agreement between the applicant and the respondent including lease documents, disclosures and stamp duty receipts but not including any confidential communications.” (“Order 4”)
and

“I order that the respondent provide vacant possession of the entire premises to the applicant forthwith.” (“Order 9”)

and

“In default of compliance with Order 9, I declare that the Applicant is entitled the payment from the Respondent or credit against rent payable to the Respondent pursuant to and during the currency of the lease agreement of a sum equivalent to all rent receivable by the Respondent from any other person occupying the premises.” (“Order 10”)

2 On 7 June 2007 the Respondents lodged an Appeal and a stay was subsequently given in respect of the Orders made, pending resolution of the Appeal.
3 The Respondents failed to appear at a directions hearing on 3 September 2007 and at that time the Appeal Panel noted that they had still not complied with its directions for evidence and the submissions to be filed in relation to the Appeal. Accordingly, the Appeal was listed on 18 September 2007 for dismissal on the ground of failure by the Respondents to prosecute the Appeal, and notice was given to the Respondents. At the hearing on 18 September 2007 there was no appearance by or on behalf of the Respondents and accordingly the Appeal was summarily dismissed.

4 The Applicant has now filed an Application seeking, amongst other things, a report from the Tribunal to the Supreme Court pursuant to the provisions of section 131(1) of the Administrative Decisions Tribunal Act 1997 (“the ADT Act”) in relation to the respective alleged defaults by Neil Scott Lawyers of Order 4 and by the Respondents of Order 9.

5 The provisions of section 131(1) of the ADT Act deal with conduct which may constitute contempt of the Tribunal, and give the Tribunal discretion to report a variety of matters to the Supreme Court which may constitute contempt.

6 My function in relation to the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 189
Decision Date: 4 July 2008

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Makris v Lafiatis concerns an application for reports under section 131(1) of the Administrative Decisions Tribunal Act 1997, which relates to an alleged contempt of court. The applicant, Mr Makris, sought to obtain certain reports in relation to an earlier proceeding, where Mr Lafiatis was found in contempt of court. Mr Lafiatis opposed the application, arguing that it was an abuse of process and that the information sought was not relevant.

The primary legal issue before the court was whether the application for reports was an appropriate remedy under the statute and whether the information sought was necessary for the purposes of the application. The court needed to determine whether the applicant had a legitimate interest in obtaining the reports and whether the application was an abuse of process. The court also considered whether the information sought was relevant and necessary to the issues at hand.

The court held that the application for reports was not an appropriate remedy in this context and declined the application. The court found that the applicant did not have a legitimate interest in obtaining the reports, and the application was an abuse of process. The court reasoned that the information sought was not necessary for the purposes of the application, as the applicant had already been provided with all relevant information. The court also noted that the information sought was not relevant to the issues at hand.

The final orders of the court were that the application for reports pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is declined.

Orders

Orders of the court

The application for reports pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is declined.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Makris v Lafiatis and anor [2008] NSWADT 189
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Zois Makris RESPONDENTS George Lafiatis Vicki Lafiatis
FILE NUMBER:	075035
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	27 June 2008
DATE OF DECISION:	4 July 2008
BEFORE:	Rickards K - Judicial Member
CATCHWORDS:	Contempt
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
CASES CITED:	Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188 Registrar of Court of Appeal v Maniam (No.1)[1991] 25 NSWLR 459 Witham v Holloway [1995] 183 (CLR) 525
REPRESENTATION:	APPLICANT J Theodoropoulos, solicitor RESPONDENTS No appearance
ORDERS:	The application for reports pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is declined.