Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan v Dublin Group Pty Ltd and Jenny Banic (Costs)
[2014] NSWCATCD 148
•23 July 2014
NSW Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan v Dublin Group Pty Ltd and Jenny Banic (Costs) [2014] NSWCATCD 148 Decision date: 23 July 2014 Jurisdiction: Consumer and Commercial Division Before: G Mullane, Senior Member Decision: 1.The Second Respondent Jenny Banic must forthwith pay to the Applicants the sum of $21,000.00 (being $14,000.00 for their costs thrown away in respect of the days for hearing original fixed for this matter and others and $7,000.00 being one half of the costs for Counsel and Solicitors for the hearing on 25 November 2013 and 28 January 2014).
Catchwords: Retail leases dispute - Costs Legislation Cited: Retail Leases Act 1994
Civil and Administrative Tribunal Act 2013
Administrative Decisions Tribunal Act 1997Category: Principal judgment Parties: Peter Stefanus Sudarma, Edwina Lim Sudarma and Paul William Duggan (Applicants)
Dublin Group Pty Ltd (First Respondent)
Jenny Banic (Second Respondent)Representation: Thornton's Lawyers for Applicants;
No submissions provided by the Respondents
File Number(s): COM 14/01346 Publication restriction: Nil
reasons for decision
INTRODUCTION
The substantive decision in these proceedings was delivered on 26 May 2014. At that time the Applicants were given until 16 June 2014 to lodge and serve any submissions and evidence in support of any costs order proposed. The Respondents had until 30 June 2014 to lodge and serve any submissions and evidence in response or in support of any costs order they seek.
The Applicants' submissions were filed on 15 June 2014. The Respondents have not filed any submissions or evidence in relation to costs.
The Applicants have informed the Tribunal that since the decision the First Respondent Dublin Group Pty Ltd has been deregistered. Accordingly, no orders can be made against the Frist Respondent.
In the Orders in the substantive proceedings the claim for damages was dismissed for want of prosecution. It was intended that that would be a more appropriate result than a verdict for the Respondent on that issue because it would still leave the issue of damages open to the Applicants if they wished to bring the claim again, subject to the limitation period.
The solicitors for Applicants sought to have the Tribunal change the order regarding the damages claim, but the Tribunal is not willing to do so.
With regard to the costs issue the final hearing was on 25 November 2013 and 28 January 2014. There were initially three days set aside for the hearing (30 September and 1 & 2 October 2013) in conjunction with two other matters that were listed for hearing together with this matter. The reason they were listed together was that all three matters concerned a tenancy of the same premises in Oxford Street, Darlinghurst by Dublin Group Pty Ltd and Jenny Banic was guarantor for Dublin Group Pty Ltd under the lease.
The difference was that the landlord originally was Ranko Despot and subsequently the premises were acquired by the Applicants. There were claims by Ranko Despot for rental, by the Applicants for rental and damages for breach of the lease and there were also claims by Dublin Group Pty Ltd initially for damages for unconscionable conduct against the first landlord and against the Applicants.
Three days were wasted at the beginning of the hearing. The reason for that was largely the responsibility of the Respondents. The main Affidavit that they relied upon was an Affidavit of Mr Banic. I have referred to the Affidavit elsewhere as about 300 pages. However, it is in fact about 400 pages. The Affidavit was served late. It did not have appropriate paragraph numbering. Some paragraphs went for pages and included annexures. It was a very unwieldy document. The other problem was that the Respondents did not separately identify what their claims were against the original landlord, Mr Despot, and those against the subsequent landlords. In addition, the Respondents did not identify what parts of the evidence related to the claim against Mr Despot and what parts of the evidence related to the claim against the other landlord.
The proceedings were eventually adjourned. At the time the costs of the Applicants thrown away by the adjournment were assessed at $14,000.00.
Subsequently in relation to the claim by the Respondents the unconscionable conduct claim was dismissed because of non-compliance by the Respondents with the directions of the Tribunal.
The subsequent hearing of this Application took two days and resulted in a verdict for the Applicants in the sum of $5,628.71 for unpaid rental and outgoings.
RELEVANT LAW - COSTS
These proceedings were part heard when the Civil and Administrative Tribunal Act, 2013 commenced on 1 January 2014. Under rule 7 of Schedule 1 to the Civil and Administrative Tribunal Act 2013, these proceedings were required to continue from 1 January 2014 in the NSW Civil and Administrative Tribunal and the Tribunal was to exercise all the functions that the Administrative Decisions Tribunal had immediately before its abolition.
Sub rule 7(3) also provides that the provisions of any "act, statutory rule or other law" that would have applied had the Civil and Administrative Tribunal Act, 2013 not been enacted would continue to apply to those proceedings. Accordingly, the decisions of the Administrative Decisions Tribunal Act 1997 regarding costs still apply.
Those provisions are contained in s.88 of that Act. It provides:
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) 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 it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or
(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or
(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or
(iv) causing an adjournment, or
(v) attempting to deceive another party or the Tribunal, or
(vi) vexatiously conducting the proceedings,
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(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 a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(4) In this section, costs includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
THE COSTS THROWN AWAY FOR THE FIRST THREE DAYS
The Applicants' costs of $14,000.00 were thrown away in respect of the first three days because the Respondents' conducted their case in the proceedings in ways that unnecessarily disadvantaged the other parties to the proceedings. They failed to comply with directions to prepare their case. They failed to comply with requirements as to the Affidavits. They failed to identify their causes of action, particularise them and also correctly identify which of the five Respondents to the Application each cause of action related.
When ordered to identify each cause of action separately, particularise it and identify to which parties it applied, even when this was the order provided that failure to do so would result in automatic dismissal of the claim, the Respondents failed to comply.
The loss of the first three days was largely because of the enormous Affidavit Mr Banic filed late. The Respondents were responsible for prolonging unreasonably the proceedings and preventing any commencement of the hearing in those three days. The Respondents made their claim unnecessarily complex and the Affidavit they presented was enormous, cumbersome and extremely difficult to use because of the lack of proper paragraph numbering and of failure to limit paragraphs to a single topic.
The Tribunal has concluded that the Respondents should pay the Applicants costs of $14,000.00 thrown away in respect of those first three days.
COSTS OF THE HEARING
Although the verdict in favour of the Applicants was relatively small, the costs of the two day hearing would be substantial for the Applicants, who had instructed solicitors and counsel. Mr Banic appeared throughout on behalf of the Respondents. He is not a lawyer and he was often reminded by the Tribunal of the serious risks involved in the course taken. He was often advised to reconsider whether the Respondents could afford not to be legally represented in such proceedings.
He persisted.
The Applicants do not seek payment of all their costs, but only $7,000.00 in respect of one day of the hearing with Counsel and the instructing solicitor. The Tribunal agrees with the submission of the Applicants that had it not been for the manner in which the case was conducted by Mr Banic, it could have been concluded in one day.
Mr Banic lost track of what the defences of the Respondents were as set out in their Reply. He repeatedly sought to rely on defences that were not pleaded by Dublin Group Pty Ltd and Ms Banic. Mr Banic had a poor understanding of relevance and continually relied on evidence and submissions that were irrelevant to the issues between the parties.
He lengthened the hearing unnecessarily. The time taken was at least double what it would otherwise have been. His Affidavit itself was part of the unnecessary complexity. His failure to adopt proper paragraph numbering was an additional complexity because often more than one, and often many, discrete issues were addressed in the same paragraph. Many paragraphs were several pages in length.
In the paragraphs of his Affidavit that he relied upon at the hearing, there was much irrelevant material. A considerable amount was evidence intended to support various other claims by the company against Ranko Despot and/or the Applicants that were not claims related to the defence of the Respondents in these proceedings and were irrelevant.
There was also a problem that much of the material in his Affidavit was merely conjecture, submissions or irrelevant.
Similarly, in cross-examination of witnesses for the Applicant, Mr Banic spent most of his time asking questions irrelevant to the issues raised by the Application and the Reply. Advice from the Tribunal Member and requests or directions to ask questions relevant to the issues produced no discernible improvement.
The Tribunal set out these problems of Mr Banic's conduct of the Respondents' case and others at paragraphs 24-29 of the Reasons in the substantive proceedings dated 26 May 2014.
The Tribunal is comfortably satisfied that the Respondent Jenny Banic as guarantor of the First Respondent should pay the amount of $7,000.00 sought by the Applicants as part of their costs for the hearing.
ORDERS
The Order of the Tribunal is:
1. The Second Respondent Jenny Banic must forthwith pay to the Applicants the sum of $21,000.00 (being $14,000.00 for their costs thrown away in respect of the days for hearing original fixed for this matter and others and $7,000.00 being one half of the costs for Counsel and Solicitors for the hearing on 25 November 2013 and 28 January 2014).
(signed)
G Mullane
Senior Member
Civil and Administrative Tribunal of New South Wales
23 July 2014
I hereby certify that this is a true and accurate record of the reasons for decision of the Civil and Administrative Tribunal of New South Wales.
Registrar
Decision last updated: 17 September 2014
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