Restuccia v Entasil Pty Ltd (No 2)

CITATION:	Restuccia & Ors v Entasil Pty Ltd (No 2) [2008] NSWADT 313
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Elena Restuccia, Michelle Totaro and John Totaro RESPONDENT Entasil Pty Limited
FILE NUMBER:	075080
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 November 2008
DATE OF DECISION:	25 November 2008
BEFORE:	Chesterman M - Deputy President; Harrison B - Non-Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Frank v Brown [2000] NSWSC 290 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Markson v Cutler [2007] NSWSC 1515 Rasko Holdings Pty Ltd v Peat & Ors [2008] NSWADT 43 Restuccia & Ors v Entasil Pty Ltd [2008] NSWADT 248
REPRESENTATION:	APPLICANT B Zipser, barrister RESPONDENT D Mitchelmore, solicitor
ORDERS:	The Respondent’s application for an award of costs is dismissed.

1 This decision deals with an application by the Respondent lessor for the costs of proceedings that were instigated against it by three co-lessees. The lease between these parties (‘the Lease’) was governed by the Retail Leases Act 1994. Following a two-day hearing, the Respondent was the successful party.

2 The principal issues arising in the proceedings were the following: (a) whether the evidence established that Ms Elena Restuccia, one of the three Applicant co-lessees, communicated their desire to exercise an option of renewal contained in the Lease in the course of a telephone conversation with an employee (‘the agent’) of the company that the Respondent had engaged to manage the premises; (b) whether the agent stated to Ms Restuccia that she had thereby done enough to exercise the option; and (c) if so, whether the agent had authority to bind the Respondent in so stating, with the consequence that the Respondent should be taken to have waived a requirement of written notice contained in the Lease and/or to be estopped from denying that the option had been validly exercised.

3 In the Notice of Application filed in the Tribunal, the Applicants sought declarations and accompanying orders confirming their entitlement to a lease as specified in the option to renew or, in the alternative, damages for unconscionable conduct and/or misleading or deceptive conduct on the part of the agent.

4 Because the Notice of Application included an unconscionable conduct claim, the Tribunal has been constituted in these proceedings in accordance with Clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). It has been constituted by a Deputy President who is a member of the Retail Leases Division, assisted by one appropriately qualified member (Non Judicial Member Harrison), acting in an advisory capacity only. Since no appropriately qualified member was available to participate as a second advisory member, the Tribunal’s decision to hear the case with only one advisory member was authorised by sub-paragraph (a) of clause 4 of Schedule 2, Part 3B of the ADT Act. The Tribunal…