Paul George Pty Ltd v Peros (No.2)

CITATION:	Paul George Pty Ltd v Peros (No.2) [2003] NSWADT 218
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Paul George Pty Ltd RESPONDENTS Garry Peros and Irene Peros
FILE NUMBER:	025051
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	07/13/2003
DATE OF DECISION:	09/22/2003
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Barsoum v Glebe Administration Board (2) [2002] NSWADT 174 Wood and Anor v Bergman (No.2) [2003] nSWADT 175 Gizah Pty Ltd v AXA Trustees Ltd (No.2)[2001] NSWADT 164 Randi Wiks Pty Ltd v Pokana Pty Ltd (RLD) [2003] NSWADTAP 27 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADT11 11 March 2003
REPRESENTATION:	APPLICANT C Felicio, solicitor RESPONDENTS D Chambers, solicitor
ORDERS:	1 The Applicant's application for costs is refused

1 In the substantive matter, Paul George Pty Ltd (“the Applicant”), as lessor of Shop 1, 85 Avoca Drive, Avoca Beach ("the Premises"), sought certain declaratory orders and orders retraining the conduct of Garry Peros and Irene Peros as lessees (“the Respondents”).

2 In determining the substantive matter I made the following orders:

“The Respondents are to refrain from doing any of the following on the Premises:
(a) selling coffee in china mugs in circumstances where the sale cannot be classified as takeaway coffee because of the obligation on the purchaser to return the mug to the Respondents;

(b) serving food on stainless-steel or other non-disposable platters;

(c) providing ‘table service’;

(d) placing tables within the Shop; and

(e) placing more than one table on the upper terrace area.”

3 The Applicant has sought an order for costs in relation to the matter. I note that the Applicant also sought guidance in relation to the practical application of the orders made in the substantive matter. I am unable to provide the guidance sought. In any event, it is my view that the orders are self-explanatory.

4 The parties each provided submissions in relation to the costs application. This determination is made on the basis of the written submissions without the need for the parties to attend.

Relevant Legislation

5 The Tribunal’s power to award costs in relation to proceedings before it is governed by section 88 of the Administrative Decisions Tribunal Act 1987 (“the ADT Act”). Section 88 of the ADT Act provides:

“88 Costs

(1) 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 there are special circumstances warranting an award of costs.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the…