Miljus v Guests Cakes & Pies Pty Ltd

[2011] NSWADT 220

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Miljus v Guests Cakes & Pies Pty Ltd [2011] NSWADT 220
Hearing dates:	On the papers
Decision date:	15 September 2011
Jurisdiction:	Retail Leases Division
Before:	K Rickards, Judicial Member
Decision:	1 The Respondents are to pay the costs of the Applicant relating to preparation for and attendance at directions hearings on 30 September 2010, 28 October 2010 and 18 November 2010 upon a party/party basis, as agreed or assessed.
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997
Category:	Costs
Parties:	Milan Miljus in 105035 (Respondent in 105173) Guest Cakes & Pies Pty Ltd in 105035 (Applicant in 105173) Guest Cakes & Pies Pty Ltd in 105035 (Applicant in 105173) Simon Louis Goldman in 105035 Beverley Carol Goldman in 105035
File Number(s):	105035

REASONS FOR DECISION

1. The lessor Milan Miljus ("the Applicant") seeks a costs order in his favour following the Tribunal's principal decision on 14 August 2011, which ordered the lessee Guests Cakes & Pies Pty Ltd and the guarantors Simon Goldman and Beverley Goldman ("the Respondents") to pay a sum of $17,355.08 inclusive of interest to the Applicant. The Applicant does not seek an order for payment of all of his costs of the proceedings, but instead submits that it is appropriate that something in the range of 30% to 40% of his costs of the proceedings should be ordered to be paid.

1. The fundamental starting point for consideration of costs arising from any proceedings before the Tribunal is set by section 88(1) of the Administrative Decisions Tribunal Act 1997 , that "each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section".

1. Section 88(1A) then permits the Tribunal to award costs in relation to proceedings before it, "but only if it is satisfied that it is fair to do so". Within section 88(1A) there are then listed a number of factors which the Tribunal may take into account in determining whether it is fair to make a costs order. The Applicant has referred to three of these factors within his application for a costs order.

1. Firstly, the Applicant points to both the failure of the Respondents to comply with Tribunal directions, and the filing of a claim by the First Respondent during the course of proceedings alleging unconscionable conduct on the part of the Applicant which was thereafter struck out; the Applicant contends that these matters caused an unnecessary disadvantage to the Applicant.

1. The Respondents' submissions in response to this point say that:

"The Respondents were self represented in this matter and had no prior experience in the assembly, preparation or presentation of evidence. Whilst this may have added to the time taken for the conduct of the hearing to some extent, and the number and length of directions hearings that took place, this should not be held against the Respondents in the form of a costs order. The respondents had every entitlement to present themselves and it is an accepted reality of such circumstances that additional time and guidance is required to be given ..."

1. The Respondents previously did have the benefit of legal advice at various times before and during the term of the lease and also at or about the time that the lease was terminated, but were unrepresented at the hearing. There is no apparent explanation given by the Respondents for the delay in compliance with a number of the directions made by the Tribunal during the course of the proceedings. The claim made against the Applicant that he had engaged in unconscionable conduct was clearly devoid of merit, and was summarily dismissed prior to the proceedings being listed for hearing.

1. In the circumstances as set out within the preceding paragraph, the Respondents' proposition, that it is fair for the Applicant to bear his own costs of preparation for and attendance at additional directions hearings and for his response to the unconscionable conduct claim, because the Respondents were not legally represented at the time, cannot be accepted. Legal representation was not necessary for the Respondents to properly consider their position and the case which they should present, to determine and collect relevant evidence, or to comply with directions, and it is not fair that the Applicant should bear the cost associated with these matters.

1. The Applicant also seeks an order for costs based upon his assertion that the Respondents unreasonably prolonged the proceedings. The Applicant says that the Respondents caused the hearing to occupy two days when it could have been completed within one day. This submission is not accepted; the Applicant himself introduced a certain amount of new additional material at the hearing which required not insignificant time for consideration and, in any event, it is also by no means clear that the hearing could have been finished within one day even if the Respondents had adopted a more efficient approach to presentation of relevant evidence.

1. The Applicant also relies upon the general discretionary ground contained within section 88(1A)(e), which allows the Tribunal to take into account "any other matter that the Tribunal considers relevant" in considering whether to make an order for costs; in this regard, the Applicant points to the chronology of directions hearings in support of his claim for a costs order. This submission overlaps somewhat with the other submission made, and which is referred to above, that the Respondents failed to comply with directions and caused unnecessary disadvantage to the Applicant in the conduct of the proceedings.

1. After allowing for the fact that the Respondents' non-compliance with the directions made on 18 July 2010 may have arisen from inexperience, it is considered fair that the Respondent should pay the reasonable costs of the Applicant upon a party/party basis relating to the preparation for, and attendance at, directions hearings held on 30 September 2010, 28 October 2010 and 18 November 2010, because these costs would have been unlikely to be incurred by the Applicant if the Respondents had taken reasonable steps to properly consider and define their case and to comply with Tribunal directions. It is fair, for the reasons given in paragraphs 6 and 7 of this decision, that the Respondents should bear the costs relating to these dates. The Tribunal is not satisfied that there has otherwise been any conduct by the Respondents to justify a costs order being made in favour of the Applicant against them, or that any other aspect of the application made by the Respondents was so clearly untenable as to justify a costs order.

ORDERS

1 The Respondents are to pay the costs of the Applicant relating to preparation for and attendance at directions hearings on 30 September 2010, 28 October 2010 and 18 November 2010 upon a party/party basis, as agreed or assessed.

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Decision last updated: 15 September 2011