O'Neill v Henry (No 2)

[2009] NSWADT 294

CITATION:

O’Neill v Henry (No 2) [2009] NSWADT 294

DIVISION:

Retail Leases Division

PARTIES:

APPLICANT
Jeffrey Raymond O’Neill

FIRST RESPONDENT
Jamie Michael Raymond

SECOND RESPONDENT
Henry Stephen Paul Dykes

THIRD RESPONDENT
Jennine Gay Dykes

FILE NUMBER:

085214

HEARING DATES:

On the papers

SUBMISSIONS CLOSED:

13 November 2009

 
DATE OF DECISION: 

27 November 2009

BEFORE:

Chesterman M - Deputy President; Ward R - Non-Judicial Member ; Griffiths G - Non-Judicial Member

CATCHWORDS:

Retail lease – costs

LEGISLATION CITED:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED:

Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
O’Neill v Henry [2009] NSWADT 254
Salon Today Pty Ltd v M. M. I. R. Pty Ltd [2009] NSWADT 71

REPRESENTATION:

APPLICANT
R Murphy, solicitor

SECOND AND THIRD RESPONDENT
K Halyburton, solicitor

ORDERS:

The Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties.

REASONS FOR DECISION

Introduction

1 This decision relates to the costs and disbursements incurred by the Second and Third Respondents in defending these Tribunal proceedings, which were instituted under the Retail Leases Act 1994 (‘the RL Act’).

2 The Applicant is Mr Jeffrey O’Neill. He was represented in these proceedings by Mr Richard Murphy, of Pavey & Murphy, Solicitors. The First Respondent, Mr Jamie Henry, represented himself at the hearing but subsequently retained a solicitor to prepare and file written submissions on his behalf. At the hearing, the Second Respondent, Mr Stephen Dykes, represented both himself and the Third Respondent, Mrs Jennine Dykes, who is his wife. Mr and Mrs Dykes subsequently retained Ms Kathryn Halyburton, of Harris Wheeler, Lawyers, to prepare and file written submissions on their behalf.

3 Mr O’Neill claimed to be entitled to recover damages from Mr Henry and/or from Mr and Mrs Dykes, on the ground that he was unlawfully denied entry to premises at Warners Bay which he occupied under a sublease from Mr Henry. Mr and Mrs Dykes, who were the owners of the premises, had leased the premises to Mr Henry for five years commencing on 1 April 2003. The lease was governed by the RL Act. Early in 2007, Mr Henry had permitted Mr O’Neill to take over occupation of the premises for the purposes of a pizza takeaway business. But on 30 January 2008, Mr Henry locked him out of the premises.

4 Because the proceedings instituted by Mr O’Neill included an unconscionable conduct claim, the Tribunal is constituted in accordance with Clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). It is constituted by a Deputy President who is a member of the Retail Leases Division, assisted by two other appropriately qualified members acting in an advisory capacity only.

The Tribunal’s substantive decision

5 On 30 September 2009, following a hearing at Belmont Local Court…