Perrin v Hungay Pty Ltd (No 2)

[2005] NSWADT 290

CITATION:	Perrin v Hungay Pty Ltd (No 2) [2005] NSWADT 290
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Bruce Perrin trading as Bondi Bed Shop RESPONDENT Hungay Pty Ltd
FILE NUMBER:	055052
HEARING DATES:	31/10/2005
SUBMISSIONS CLOSED:	10/31/2005
DATE OF DECISION:	12/08/2005
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	G & M Dawson Pty Limited v Cripps & Ors (No 3) (RLD) [2005] NSWADTAP 24
REPRESENTATION:	APPLICANT J Lloyd, Solicitor RESPONDENT A Benakis, Agent
ORDERS:	No order as to costs

1 The substantive proceedings between the parties in this Tribunal were heard on 31 October 2005. In my decision dated 11 November 2005 I allowed either party to make any written submissions as to costs within 14 days, failing which there would be no order as to costs.

2 The Applicant has filed written submissions dated 15 November 2005 seeking an order that the Respondent pay the Applicant's costs in the sum of $2,250.00.

3 The submissions filed on behalf of the Applicant refer to negotiations which occurred during the course of the mediation which was held between the parties, which is a compulsory precursor to the commencement of proceedings in this Tribunal. Pursuant to Section 69 of the Retail Leases Act 1994, any statement made in the course of mediation discussions is inadmissible, and I accordingly take no account of any material within the Applicant's submissions which refer to anything that occurred during the mediation process.

4 By reason of the provisions of Section 88(1) of the Administrative Decisions Tribunal Act 1997, I must be satisfied that there are special circumstances warranting an award of costs, before making any such order. Section 77A of the Retail Leases Act 1994 makes this provision applicable in retail tenancy proceedings conducted in the Tribunal.

5 There is an abundance of case law relating to the question of what constitutes such "special circumstances" and some relevant principles can be summarised as follows:-

a) "Special circumstances" are circumstances that are out of the ordinary, but without having to be extraordinary or exceptional.

b) It is not enough that the circumstances are "special"; they must also warrant an order for costs.

c) Due to the commercial nature of the Retail Leases Division, the interpretation of "special circumstances" is broader than the interpretation which might be adopted in any other Division of the Tribunal; however, this does not mean that costs simply follow the event.

6 Further to the above principles, the “special circumstances” warranting an award of costs should ordinarily be identified within the scope or conduct of proceedings by a party, rather than arising from conduct preceding or outside the actual scope or conduct of the proceedings. This principle is expressed by the Appeal Panel in G & M Dawson Pty Limited v Cripps & Ors (No 3) (RLD) [2005] NSWADTAP 24, at paragraph 32 as follows:-

"Having given the issue our own careful consideration, we would share the disinclination, shown by the Tribunal in all the cases that we have cited, to assess the reasonableness and probity of the conduct of an unsuccessful party that has given rise to litigation, and to make a finding of 'special circumstances warranting an award of costs' on the basis of this conduct if it is found to have been unlawful, 'grossly unreasonable' or in some other way manifestly improper. In our opinion, it is the task of the substantive orders made in litigation in the Tribunal, not a costs order, to provide sufficient remedies in respect of such conduct to the aggrieved party."

7 The Applicant's submissions do not point to any unreasonable conduct of the Respondent in the proceedings before the Tribunal. There is no evidence, nor any submissions made concerning any stance or course of conduct adopted by the Respondent during the course of the proceedings which might be fairly categorised as "special" and warranting an order for costs.

8 In the circumstances, the Applicant's submissions must fail, and I make no order as to costs.