Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (No 2) - [2010] NSWADT 316

CITATION: Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (No 2) [2010] NSWADT 316

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Satchi & Satchi Australia Pty Ltd
Hemalatha Sothy Ranjini Satchithananantham
RESPONDENT
Zeaiter Corporate Holdings Pty Ltd
Anthony Zeaiter

FILE NUMBER: 085133

HEARING DATES: 23 September 2010

SUBMISSIONS CLOSED: 23 September 2010

EXTEMPORE DECISION DATE: 23 September 2010

BEFORE: Molloy G - Judicial Member

CATCHWORDS: Dismissal for Want of Prosecution

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Civil Proceedure Act 2005
Retail Leases Act 1994

CASES CITED: Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited
NSW Bar Association v. Jones [2008] NSWADT 253
O’Neill v Henry (RLD)[2010]NSWADTAP40
Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings [2009] NSWADT 237
Satchitanantham v Zeaiter Corporate Holdings Pty Limited (RLD)[2010]NSWADTAP30

REPRESENTATION:
APPLICANT
T Satchithanantham, agent
RESPONDENT
S Rolfe, solicitor

ORDERS: 1. Proceedings are dismissed for want of prosecution
2. Applicants to pay costs of the Respondents as agreed or assessed.

REASONS FOR DECISION

Initial Background

1 On 23 September 2010 I delivered an ex tempore decision upon an oral application made by counsel for the Respondents to the effect that the proceedings be dismissed for want of prosecution.

2 I ordered the proceedings be dismissed for want of prosecution. I also ordered that the Applicants pay the costs of the Respondents.

3 The Applicants have applied to the Tribunal for “A statement in writing of the reasons of the Tribunal for its decision” pursuant to Administrative Decisions Tribunal Act 1997, s89(3)(a).

4 S.89(2) empowers the Tribunal, upon the making of an original decision or the determination of an Application for review of a reviewable decision, to give its reasons “either orally or in writing for its decision”. Thus the Tribunal may make an ex tempore decision, alternatively a reserved decision in writing. If it makes an ex tempore decision then (s.89(3)) “a party to the proceedings may, within 28 days after the date on which a copy of the decision of the Tribunal is served on that party, request the Tribunal to give the party a statement in writing on the reasons of the Tribunal for its decision.” Thus, in the instant case, the Applicants, by letter 21 October 2010, advised the Tribunal that they proposed to appeal the ex tempore decision 23 September 2010 and for that reason required written reasons pursuant to s.89(3)(a).

5 ADT Act s.89(4) makes it plain that the Tribunal may provide a copy of the transcript of oral reasons, provided that the transcript complies with sub-section (5). The Tribunal is of the opinion, however, that in all the circumstances it should provide detailed reasons for decision even though the provision of the copy of the transcript of the ex tempore decision complies with sub-section (5), primarily for the reason that it is appropriate to review the history of the proceedings in perhaps more detail than was touched upon in the ex tempore decision and thus flesh-out that decision by reviewing the whole of the proceedings which formed the underlying basis of the decision, and thus provide, for the Appeal Panel and the parties, more detailed information than may have been referred to or touched upon in the ex tempore decision.

6 The Tribunal is, however, of the clear opinion that the terms of the ex tempore decision are adequately clear for the parties and in these written reasons the Tribunal proposes to make detailed reference to the ex tempore decision 23 September 2010.

7 In order to understand the thrust of the decision 23 September 2010 it is necessary to go back in time to review, in some considerable detail, what has actually happened in this matter. This may appear tedious but without it, and on an application like this, in my view it is necessary to include this detail. Dealing with a matter ex tempore it is often not appropriate to set out in excruciating detail the course of the proceedings which underlied and formed the foundation of the ex tempore decision; but in writing a decision for appeal it is so necessary so that the parties, and the Appeal Panel, understand the underlying foundation/basis behind the ex tempore decision.

8 The Applicants have been applicants in other proceedings in this Tribunal and in other proceedings in the Supreme Court. In my opinion all of that has got nothing to do with the Application that was before me on 23 September 2010; except to make it plain that, although the Applicants were self-represented through their agent (details of which I shall make reference to below) it is plain to me that the Applicants are very experienced and are “very familiar with the rules and procedure that govern the Tribunal” and, with respect, I agree with the observations of His Honour the President in Satchitanantham v Zeaiter Corporate Holdings Pty Limited (RLD)[2010]NSWADTAP30 at [20]. Thus, in considering the issues that were before me on 23 September 2010, and although bearing in mind that the Applicants were unrepresented, it is my clear opinion that the Applicants and their agent were highly experienced litigators well versed in practice and procedure.

9 I pause here to observe that the Applicants’ agent, although an experienced litigant himself and an experienced advocate, can be highly emotional about the various issues he wishes to agitate; but that in itself is not a reason for denying appropriate relief to the Respondents, nor is it a reason for approaching the issues raised by the Applicants in other than a detached and logical manner.

Detailed Background

10 Doing the best that I can from the material in the file it would seem that the First Applicant entered into a lease from the First Respondent over ground floor premises known as 2/53 Station Street, Wentworthville for a term of three years commencing 1 March 2004, terminating 28 February 2007, and with a three year option to purchase. This lease was registered AA628205C. The lease is dated 4 April 2004; was executed by the First Respondent under common seal by the Second Respondent as its sole director and secretary; by the First Applicant as lessee by the Second Applicant as its director and (doing the best that I can from the execution page of the lease) and Mr Thambiappah Satchithanantham (herein described as (at the hearings and with his consent) “Mr Satchi”) as secretary; and by the guarantor, the Second Applicant, under an unlimited personal guarantor’s liability, and whose signature as guarantor was witnessed by her husband, the Third Applicant, Mr Satchi, (who had also signed as secretary of the First Applicant).

11 Also, and again doing the best that I can from the documents in the file, it would appear that the First Respondent granted to the Second Applicant a lease over premises known 1/53 Station Street, Wentworthville. I am unable to find in the file a copy of this lease but it would appear to have been registered AA628206A. This second lease is described in the judgment of Hoeben J 30 July 2008 [as to which see [14] below] at [18] as “expressed to run from 15 January 2004 to 14 January 2007 …(and) was terminated by repossession of the premises by (the First Respondent) on 12 July 2004”.

12 For the purposes of this decision the terms of either lease are not relevant; but the fact that they existed is relevant.

13 Disputes arose between the various parties, which have resulted in numerous legal proceedings in this Tribunal and in the Supreme Court.

14 A very useful summary can be found in the judgment of Hoeben J, 9 May 2008, 30004/2008. In addition, reference should be made to a further decision of Hoeben J in the same proceedings 30 July 2008.

15 I shall refer later to both these decisions and the decision of His Honour the President later.

16 The further history of these proceedings I now set out.

17 By Application for Original Decision filed 7 July 2008 the first Applicant, the Second Applicant and Mr Satchi as Third Applicant commenced proceedings in this Tribunal.

[Where words appear in quotations they are the exact words]. The Application asserted as follows;

“1. Applicants continue to occupy and conduct the business at the premises 2/53 Station Street Wentworthville NSW 2145.

3. Respondents pay applicants $140,000.00 plus 4% interest per month from 1 March 2008 until full settlement, as to the breach and failure by the respondent for non-assignment or new lease for the premises at 2/53 Station Street Wentworthville NSW 2145 to m/s Bituman Pty Ltd [ABN: 87 085 604 191].

4. Respondents pay $6,100.00 being the over-collected rent and outgoing payment from 1 March 2008 until to date.

5. From 1 March 2008, the rent and out going payments claimed by the respondent for the lease premises at 2/53 Station Street Wentwothvile be collected from the new lessee of the registered lease AE 43012Y. In alternative, respondent pay applicants the monthly payment [as claimed by the respondent], until fully paid the amount to the applicants as referred in the order – 3 above.”

18 On one view, the above paragraphs are a recital; on another view they constitute orders being sought. I have regarded these paragraphs 1-5 as being orders sought.

19 The Application then refers to various orders made by the Supreme Court on 4 February 2008, file 30004/08; then seeks various interim orders, presumably by reference to the Supreme Court orders, including ,at [6], that “The Supreme Court extended the time until 4 September 2008.” – precisely what jurisdiction this Tribunal has to make that order is not clear to me. In any event , the Applicants appeared to be seeking various interim orders apparently as sought in the Supreme Court by the Applicant’s Summons filed 7 January 2008. What these orders were is not set out in the Application and, at least as far as I can see, is not clear from the words used in the Application.

20 The Applicants then appeared to seek interim orders pursuant to (it was said) paragraphs 4 & 5 above (at[17]) in or to the effect that they pay the First Respondent “the current monthly rent, outgoings inclusive GST of as appropriate …. instead of the respondent’s monthly rent claim of $4,022.05 and current outgoing quarterly claim of $798.35.” The Applicants then sought an order that the “Respondents pay the Applicants $27,559.07[inclusive of 9% interest p.a. for 7 months] until full settlement being total payment, in reference to the interlocutory application heard in the ADT on 6/12/07 and adjourned to 17/12/07 to deal with the merits of that application with the substantive hearing.”

21 I pause to observe that I have little or no understanding of that last-mentioned prayer for relief. Firstly, It is not clear to me precisely what it means; and in any event I am unable to see in any material that has been filed any entitlement at all entitling Mr Satchi to receive the whole or any part of the claimed $27,559.07, neither can I find any reference to any entitlement he may have, or any obligation that he may have, to pay “the current monthly rent, outgoings inclusive GST of as appropriate…”. Indeed, I am unable to see anything in the form of Application that entitles Mr Satchi to anything at all. I pause to observe that Hoeben J. appeared to have the same problem.

22 The Application then went on to refer to “order - 1 made by the Supreme Court on the applicants’ summons file on 7 January 2008”, asserting that the Order “is alive until 4 September 2008, unless the Supreme Court make further orders OR varies those orders until the issues and orders determined by the Tribunal as to the order-2 sought above”.

23 Perhaps in reliance upon that assertion the Applicants sought the following additional Orders:

“9 Respondents pay applicants the amounts over-collected from the applicants for the rent payments, outgoings payments, legal fees, rental deposits from 12 February 2004 until to date with 9% interest from 12/2/04 until full and final settlement to be quantified by the Tribunal under the real lease act 1994 claim.

10 Respondents pay $400,000 being losses and damages as suffered by the applicants in accordance with the pleadings and particulars filed in the tribunal on 8 November 2007 under the file no: 075031, up to the maximum limit of the tribunal being the deceptive and unconscionable claim.

11 Declaration that the both respondents have involved in deceptive and unconscionable conducts since 27 November 2003 till to date.

12 Respondents pay interest of 9% p.a. from 12 February 2004 for orders 6 & 5 above until full and final settlement.

13 Cost.”

24 The reference to “orders 6 & 5 above” I take refers to orders 5 & 6 asserted to have been made by the Supreme Court on 4 February 2008. If that is the case then the Applicants have pleaded in paragraph [7] of their Application, by reference to “orders 4 & 5” (presumably made by the Supreme Court on 4 February 2008) that they, the Applicants, pay the “respondent” (which Respondent?) “the current monthly rent, outgoings inclusive GST of as appropriate”; thus it is not clear to me why the Respondents should be ordered to pay interest to the Applicants on money that the Applicants have to pay, on their own pleadings, the Respondents. In any event, again there is no differentiation between the three named Applicants (the company Satchi & Satchi, the Second Applicant Mrs Satchi, and the Third Applicant Mr Satchi); neither is there any differentiation between the First Respondent (Zeaiter Corporate Holdings Pty Limited) and the Second Respondent (Anthony Zeaiter) – thus it is further not clear who (on the pleadings) is required to make payments, and to whom.

25 It is the obligation of the party seeking court/tribunal relief to set out clearly and precisely what relief is sought, by whom, against whom; and it should not be left to the court/tribunal to try to plead the Applicant’s case or sort out from inadequate pleadings what orders are sought against whom and in favour of whom. To plead generally, where there are multiple applicants/plaintiffs and multiple respondents/defendants is, not only confusing and misleading, but fails the most elementary test of specificity and precision. Each respondent/defendant is entitled to know, with reasonable clarity, the case that is mounted against that respondent/defendant, and the case that is mounted against each other respondent/defendant. It is good pleading to plead separately against each respondent/defendant, and, in the case of multiple applicants/plaintiffs, the precise cause of action agitated by each against each respondent/defendant. Clearly, different considerations apply where joint and/or several liability is asserted, but even then that assertion must be made and supported by relevant Particulars so that the other parties, and the court/tribunal, can know what contractual/tortious assertion is made and the facts said to support that assertion.

26 Thus, in the instant matter, there were three Applicants and two Respondents. Each Applicant would need to plead its cause of action, with Particulars, separately against each Respondent. If this course had been followed [and, as will be seen, the Tribunal, with a generosity of spirit, extended to the Applicants more than adequate opportunity to amend, and they failed to take advantage of those opportunities] then each Respondent would have known, with reasonable clarity, what assertions were being made against them, and by which Applicant. Even today I am unable to divine from the filed documents in this matter what role Mr Satchi, as Third Applicant, had and, more importantly, what his claims were against each Respondent.

27 The three Applicants then set out in some detail the grounds in support of the Application. Firstly, they relied “on all documents under the file no: 075031 and 055131 and supreme court file no:30145/07 and 30008/08 until this date.” Quite frankly, that is a hopeless ground, demonstrates no particularity, and is a hopeless way of dealing with these discrete proceedings on this discrete Application. Each Application for Original Decision must stand on its own merits and not require the Tribunal to plough through documentation filed in previous proceedings, or in another court or tribunal. This is particularly so where the Applicants do not inform the Tribunal precisely what documents are relevant and, perhaps more importantly, the result of those previous proceedings. Here the Applicants refer to four previous or other proceedings and state they rely “on all documents” filed in those proceedings – at best, a dangerous proposition because, presumably, some of those documents would have been filed by respondents/defendants!

28 The Applicants then go on to plead that on 10 June 2008 the Tribunal in file 055131 held that the “the respondent was entitled for payment of $68,512.20 p.a. as to the terms of the registered lease AA628206A, which includes the rent, out goings and GST as at 15/12/2003 with two months free rent for usage area of 500 sq.m[or 665 sq.m in question in reference to the clauses PART 22 of the lease], which is now subject to in the appeal panel of the ADT under the file no: 089048.” The Applicants then purport to challenge that and assert that the Respondents have somehow admitted “the invalidity of the registered lease AA628205C, as to the misrepresentation and false disclosure statement made by the lessor and this matter no need to go further.” There is then a further challenge to an alleged monetary credit.

29 The Applicants then asserted various fresh calculations – what this Tribunal is expected to do with all of that is not clear because, if it is asserted that in an affidavit filed in matter 075031 certain admissions were made by the Respondents, even on the Applicants’ own pleadings that affidavit was filed on 26 February 2007 and proceedings number 055131 were decided on 10 June 2008, some sixteen months after the affidavit now relied upon by the Applicants was filed; thus, at least on the pleadings, it would seem to me that the opportunity was given to the Applicants to deal with the various asserted discrepancies at the hearing of 055131.

30 It was then asserted that registered lease AA628205C (referring to premises 2/53 Station Street) was invalid because of misleading and unconscionable conduct of the Respondents in the Lessor’s Disclosure Statement and because of a letter written 12 February 2005. The important question to ask here is this: why has not all of that been agitated by the Applicants in previous proceedings, particularly if it is alleged (as it was) that this asserted conduct was admitted in a letter from the Respondents’ lawyer dated 12 February 2005? The time to agitate all the issues that arise between parties is the time when firstly, the issues become apparent and secondly, not by successive applications to tribunals and courts but rather in single legal proceedings, when all the issues can be ventilated and decided. This Tribunal should not allow itself to be the conduit or vehicle for parties to re-agitate arguments, alternatively to agitate arguments that could and should have been agitated in previous proceedings.

31 It is tedious, but it is necessary, to make further reference to the precise terms of the Application for Original Decision 7 July 2008. The Applicants then asserted the following ground:

“7 As to the failure of Lessor’s not executing part of the (1) STATURAY DECLARATION in the page 2 of 19 of the registered lease AA628205C further confirms that the lease premises 2/53 HAS NOT ENDED on April 2004 , as to the rent increase notice sent to the respondent’s solicitor on 21 January 2004 portion was part of the ground floor premise which was the crucial mater in the matter 055131 by incorporating the further clause “ PART 19, 20, 22 and 23” of the registered leas AA 628205C, in addition, similar clause in the registered leas AA628206A, to confirm that arrangement as in the “PART-22”.”

Quite frankly, I have no idea what that paragraph means.

32 The Applicants then assert that there was “a good reason to believe that the EXHIBIT – “NZ1” disclosed by the respondent on 26 February 2007 was the copy of the “UNREGISTERED LEASE” in contrary to the documentary evidence relied upon by (the respondents’ solicitor)”. Again, this is meaningless; and in any event, is outside the jurisdiction of this Tribunal because, and attempting to read behind the assertion, that would be a matter for appeal.

33 The Applicants then go on to assert, in paragraph [9], that the Tribunal on 26 February 2007 “erred in making an order against the applicant to pay $1,746.42, which they did without further alternative to honour the tribunal order, although the applicant raised that the “Current lease registered leases are void and unenforceable”, as to the letter applicant’s letter dated 19/02/07 addressed to “Star partners” and copied to the Tribunal under the file no: 055131 and respondent’s solicitor letter dated 22 February 2007, which made the applicant the first applicant forcefully to commence new proceedings in the ADT ON 23 February 2007 under the file no:075031…. which was apparently dismissed on 18/12/2007 on technical grounds without heard on merits, which is now subject matter of the appeal under file no: 089025 and fixed for hearing on 22 July 2008.” Again, what this has to do with this Tribunal is not entirely clear – doing the best that I can, it seems to me any complaint is a matter for appeal and I simply do not have jurisdiction.

34 The Applicants then assert, by way of a submission, “that the correct rent should be applied to the premises at 2/53 Station Street Wentworthville NSW 2145, in accordance with the retails lease act 1994, would be 16.32% of the total rent on the monthly rent of $5,710.10 with effect from 1 March 2004 and on going with the respondent’s own admissions.”

35 Then, at para[11] the Applicants say:

36 Finally, the Applicants asserted as follows:

13 Applicants rely on the urgent interim order filed in this tribunal on 24/4/08 for the matter: 089025 together with the applicants urgent interim application dated 24/4/08.”

37 It is my considered opinion, as was my opinion expressed earlier to Mr Satchi, that this Application is hopeless, confusing, fails to make any assertions that would seem to be within my jurisdiction, confuses the parties and the responsible legal entities as to rights and obligations, is confusing (to put it mildly) and in places not understandable, and is legally embarrassing. I do understand the difficulties sometimes encountered by parties who seek to represent themselves and I do understand that courts and tribunals often, quite rightly, do not wish to unnecessary penalise an unrepresented litigant because they were confused or had difficulty expressing themselves. Courts and tribunals deal with these problematic situations every day.

38 But it is fair to make two important observations: firstly, these Applicants were, and are, not novices and can properly be regarded as experienced litigants; secondly, it must be remembered, and borne in the forefront of one’s mind, that for every applicant

there is a respondent who is required to deal with embarrassing pleadings and, if properly advised, should obtain legal advice and representation and, as a consequence, and most importantly, ends up incurring not insubstantial legal costs and expenses. Respondents/defendants should not be placed in a position of personal or financial embarrassment and/or expense by actions of plaintiffs/applicants who, for whatever reason, do not wish to seek legal advice and obtain legal representation, thus inconveniencing the other parties, making the other parties incur legal costs and expenses and putting unnecessary stress upon the scarce resources of courts and tribunals. One’s experience shows that persons who engage legal representation at an early stage will often discover the true merits of their case and, even more often, be able to resolve the issues with their opponents.

39 It will now be appropriate to refer in some detail to the various Directions Hearings and other interlocutory hearings that took place prior to the final dismissal hearing. The detail is required because, as I observed above, in order to properly understand the foundation/basis behind the dismissal order one needs to have a firm grip on what transpired prior to that order and which formed the underlying strata supporting the dismissal order.

Directions

40 7 August 2008: The first Directions Hearing took place this day before Fox JM. He was informed by Mr Satchi (who appeared representing himself and for the First and Second Applicants) that an urgent application may be made by the Applicants; and the matter was adjourned for further directions to 21 August 2008.

41 21 August 2008: Mr Satchi again appeared. The Respondent was again represented by counsel. Mr Satchi indicated that he wanted a hearing on the merits; the Respondents were directed by Fox JM to file affidavits by 11 September 2008; and the proceedings were adjourned for further directions on 18 September 2008. It is not clear to me from the file why the Respondents were ordered to file and serve affidavits when, at this time, the Applicants had not filed their evidence, or, indeed, any evidence at all!

42 18 September 2008: On this day Fox JM directed the Applicant to file all evidence and submissions (if any) in response by 9 October 2008; and adjourned the proceedings for further directions on 16 October 2008. By this time there had been filed in these proceedings an affidavit by Mr DJ Edwards, Solicitor, sworn 11 September 2008 and filed 17 September 2008. This was a very detailed affidavit, with numerous annexures of some 252 pages.

43 16 October 2008: The matter came before me. By this time the Applicants had filed, on 21 August 2008, a document titled “Application”. No leave had been granted to file this document. It sought to join M/s Bituman Pty Limited as Third Respondent, noting that it was a “non party of this matter and brought in for this application as a third respondent”. Counsel appeared for the Third Respondent on that day, and filed a Response in which this company (“Bituman”) objected to the application being granted. The Response was filed on behalf of a Mr Shangmugam Ahembaram Javakhar, who stated that he was “a director and shareholder” of the Third Respondent company. The Response in its terms is not really very helpful because it is framed in the first person (ie in the name of the director himself) and does not appear to be a Response in the name of Bituman as a company. However, and perhaps reading the Response more generously as being filed by Bituman, it pleads that Bituman was “not and was never a party to a retail lease agreement with the applicants”; that it entered into a contract to purchase the business operating from Shop 2, 53 Station Street, Wentworthville from the Second Applicant on 3 October 2007; that as a term of the purchase agreement the Second Applicant was to “assign or sublease the current lease or arrange a new lease for the ….Shop for a period of six years and the annual rental would be $50,000 plus GST”; that a holding deposit of $10,000 was paid to the Second Applicant; that “the applicant” (to which Applicant this refers is not clear) made certain representations to Bituman relating to the “securing a lease over the rental premises” and in breach of those representations there was an ongoing dispute with the First Respondent and that the First Respondent “would not enter into a lease arrangement with (Bituman) until the dispute was resolved”; that a notice of intention “to cancel the purchase agreement if ….. agreement could not be concluded by the end of February 2008” was served 3 February 2008; that negotiations took place, which were not successful and the Second Applicant “was not in a position to perform his (sic) obligations under the purchase agreement…..(and) was never in a position to perform his (sic) obligations under the purchase agreement”; and that the Applicants (which Applicant is not clear) “never served any form of notice to complete suggesting the purchase agreement was enforceable and that (Bituman) was in breach of that agreement in circumstances where the applicants had failed to secure the consent of the lessor (the First Respondent) to transfer or otherwise assign the lease for the rental premises” and that the whole of the application was “vexatious and frivolous”.

44 On that day 16 October 2008 I directed the Second and Third Applicants to file a Reply by 30 October 2008 and adjourned the matter for further directions on 6 November 2008.

45 6 November 2008: On this day the proceedings were listed for 12 noon – it was anticipated there would be considerable debate. This turned out to be correct. The Application filed 21 August 2008 was ventilated and, after some discussion with Mr Satchi, I formed the opinion, and he agreed, that the Application 21 August 2008 should properly be titled “Application for Urgent Interim Order”. Those words were written on this document by me and the proceedings continued on that basis. I spent some time in reviewing the file and attempting to get a grip on the progress of the matter and what assertions were made. I reviewed, but only in a cursory manner, the Application for Original Decision 7 July 2008 and formed the opinion, after hearing from counsel for all the nominated Respondents (the Third Respondent being separately represented) that formal detailed Particulars were required in support of the assertions in paragraph 11 of that Application (as to which see [35] above). I made the following Directions and Orders in relation to the Application for Urgent Interim Order filed 21 August 2008:

“1. Strongly recommend the Applicants obtain legal advice.

2. Applicants to file and serve formal detailed Particulars in support of the assertions made in paragraph 11 of the Application filed 7 July 2008, by 5 December 2008.

3. Applicant to file any additional affidavits by 21 November 2008.

4. All Respondents to file and serve all affidavits in reply by 5 December 2008.

5. Applicants to file all affidavits in reply by 12 December 2008.

6. Costs of First, Second and Third Respondents are reserved.

7. Proceedings adjourned for further directions on 18 December 2008.”

I noted that “these directions relate to the Application for Urgent Interim Order only”, ie by reference to that document filed 21 August 2008. I pause here to observe that the Applicants had filed no evidence at all in compliance with the Directions 18 September 2008 (at [42] above).

46 18 December 2008: Mr Satchi again appeared for the Applicants and counsel appeared for the First and Second Respondents. The parties handed up Short Minutes of Order and the following further Directions were made by consent:

“1. The Applicant is to file and serve all affidavits in support of its interim application on or before 16 January 2009;

2. The Respondents are to file and serve any affidavits in reply in respect of the interim application on or before 30 January 2009;

3. The Applicant is to file and serve any evidence in reply on or before 13 February 2009;

4. The Applicant is to file and serve particulars of its unconscionable conduct claim on or before 16 January 2009;

5. The matter is listed for Directions on 19 February 2009.”

In addition the Tribunal, after hearing further submissions, made the following Notations and Directions:

“6. The Applicant is to file and serve any motion to join any additional Respondent(s), returnable 19 February 2009 at 12 noon, by 16 January 2009.

7. I strongly recommended the Applicants obtain legal advice.”

47 No Motion to join any additional respondents was filed pursuant to Direction 6 above.

48 It is not clear from the file what happened in relation to the Directions 19 February 2009. I assume from the correspondence in the file that the hearing fixed for that day was adjourned. There is a letter in the file from Mr Satchi dated 22 January 2009 making reference to the Directions and Orders made 18 December 2008, making reference to the continuing sickness of one of the Applicants, noting that the Applicants “at this stage” relied upon “all the documents and affidavits filed by the parties in this matter up to date” and the affidavit of the Second Respondent sworn 26 February 2007 and “filed in the matter 075031 for the purposes of hearing of the interim application to be decided on 19/2/09” such that the Applicants do “not intend to file any affidavits, as to the directions/orders made 18/12/08.”

49 More remarkably, Mr Satchi in this letter, in relation to Consent Order 4 (see its quite specific terms at [46]above), stated that “at this stage (the) applicants (rely) on all the documents as referred to in the documents filed on 17/12/2007 in the ADT matter 075031, Supreme Court Matters 30004/08 and 3668/08, in addition to the materials in the file no: 085133.” Pausing here, it is plain that the Applicants did not propose to comply with the Consent Order to provide Particulars of the unconscionable conduct. Formal Particulars are not satisfied by reference to documents in various files – formal Particulars are not to be gleaned by searching through and attempting to divine from a mass of material what may or may not constitute unconscionable conduct. It is up to the person asserting unconscionable conduct to particularise the unconscionable conduct asserted and then to particularise the damages said to flow from that asserted unconscionable conduct. A failure to so particularise can lead the responding party into error by failing to address an issue, and may also lead the tribunal of fact into error by failing to identify, or wrongly identify, a fact or factors which are said to constitute unconscionable conduct. Reference can be made to the decision of the Appeal Panel in O’Neill v Henry (RLD)[2010]NSWADTAP40, at [59-69], in particular [65]; and to Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited [2010] HCA 31 at, in particular, [5-7] and, indeed, the whole of the judgement of French CJ and Kiefel J – the importance of “getting it right” cannot be over-emphasized.

50 It is my very clear opinion that the Applicants and Mr Satchi, not only failed to comply with Order 4, but did so quite deliberately. The Order was made by this Tribunal, was made in accordance with well established principles, and was made by consent. Thus, presumably, the Applicants either, at the time the Order was made, did not intend to comply with it or, subsequently, recognised that they could not comply with it. If the former, that is disgraceful conduct; if the latter, then the Applicants should either have moved the Tribunal to vacate/vary the Order, alternatively simply dropped the unconscionable conduct portion of their claim. They did neither. They simply refused to comply. Thus the Respondents and the Tribunal were, and are, none the wiser as to what facts and circumstances, on the evidence sought to be led by the Applicants, were said to constitute unconscionable conduct, nor what damages/losses were said to have flowed from the asserted unconscionable conduct. And this in the face of a total failure to file any probative affidavits at all in these discrete proceedings.

51 The letter went on to refer to Tribunal’s Order 6 made 18 December 2008 (at [46] above) and stated that the Applicants relied “on the document filed on 16/10/08 by the third respondent, If any issues in contrary, then they have to bring their own application to the tribunal. At this stage, applicant do not intend to file any applications, as the that issue.” One might not unreasonably assume from that statement that the Applicants did not seek to join any additional Respondents.

52 30 April 2009: The Tribunal’s records show that the Directions initially fixed for 19 February 2009 were in fact re-scheduled to 30 April 2009. Fox JM noted that settlement had been achieved (I’m not sure why that notation appears in the file), that Mr Satchi was a bankrupt, and directed:

“1. As regards application by Mr Satchi – evidence of ITSA approval of continuance of litigation to be filed (by) 21/5/09;
2. Applicants to file and serve affidavits in support of the Interim Application by 21/5/09;

3. Proceedings adjourned to 28 May 2009.”

It can be reasonably assumed that Fox JM was informed that Mr Satchi, the Third Applicant , was a bankrupt. This was clearly a serious situation and for him to continue as a party to the proceedings would have required the approval of his Trustee in Bankruptcy.

53 28 May 2009: Fox JM made the following directions/orders:

“1. Mrs Satchi (the Second Respondent) to appear;

2. Respondents to file and serve all affidavits in Response by 25 June 2009;

3. Matter adjourned for further directions on 2 July 2009”.

54 2 July 2009: On this day Fox JM set the proceedings down for hearing, as a retail leases/unconscionable conduct matter, for 22 and 23 September 2009.

55 Fox JM also heard the Interim Application and his decision is reported: Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings [2009] NSWADT 237. This decision relates to the document filed 21 August 2008 which I had marked “Application for Urgent Interim Order”, which I have made reference above at [43 and 45]. Fox JM considered that Application in some considerable detail and refused all relief. With respect, I agree entirely with the learned Judicial Member’s reasons and the result. That judgment is a significant factor in relation to the ultimate result in this matter.

The hearing 23-24 September 2009 did not eventuate. Understandably so. By no stretch of the imagination was it ready for hearing. The matter came back before on 8 October 2009. On that day I heard lengthy argument – Mr and Mrs Satchi appeared and counsel appeared for the First and Second Respondents. Ultimately, I made the following Notations, Directions and Orders:

“1. Note there is no case mounted against Shangmugam Javakhar (the director of Bituman).

2. Note Mr Cavanagh, solicitor, appears for Bituman Pty Limited.

3. Note Mr Satchi (Third Applicant) is a bankrupt.

4. Note: if Mrs Satchi seeks to appoint Mr Satchi as her agent, formal leave of the Tribunal must be sought pursuant to ADT Act section 71. (As to this notation in detail see below at [60-69] below).

5. Mrs Satchi and/or Mr Satchi to file and serve any formal Application pursuant to Direction/Notation 4, supported by appropriate Affidavit (s), no later than 26/10/09.

6. Matter listed for further Directions before Molloy JM on 03/11/09 at 2pm.

7. Bituman to file and serve any Response on or before 20 October 2009, failing which the Application may go forward without its appearance.

8. Registrar is requested to advise First, Second, and Third Applicants and Third Respondent in writing as soon as possible.

9. The Tribunal expects Bituman Pty Limited to appear by its counsel on 03/11/09 if it wishes to be heard in these proceedings.

10. Costs of First and Second Respondent are reserved.

11. Tribunal strongly recommends First, Second and Third Applicants seek and obtain legal advice and representation.”

57 These Directions and Orders were made after hearing argument. At this point of time no careful dissection of the initial Application filed 7 July 2008 had been carried out by the Tribunal and no argument had been advanced, or submission made, to strike out that Application on the basis that it was embarrassing, incompetently drawn, meaningless in substantial parts and not supported by any probative evidence in these proceedings; and, equally as importantly, not supported by any formal particulars. As will be seen below, as the various issues unfolded the Tribunal became more informed about the status of the parties and the assertions being made.

58 3 November 2009: Mr Satchi again appeared for the Applicants and the First and Second Respondents were represented by counsel. A serious issue arose as to the entitlement of Mr Satchi to be a party to these proceedings; and a further serious issue arose as to his entitlement to represent the First and Second Respondents as agent. In order to deal this issue I made the following Directions:

1. Applicants to file and serve by 25/11/09 any further affidavits.

2. First and Second Respondents to file and serve by 10/12/09 all affidavits.

3. The Tribunal requests the Registrar to provide a copy of today’s transcript (and) a copy of the transcript of 02/07/09 and 08/10/09 (both in File 0895133) and 18/06/09 (in File 089048); the Tribunal having been clearly informed by Mr Satchi that those transcripts are relevant to the instant applications.

4. Costs of First and Second Respondents are reserved.

5. Application for leave adjourned for hearing on 22/12/09.”

59 It is important to understand that Mr Satchi urged strongly upon me that the provision of those transcripts was relevant to the instant applications. It is further important to observe that the practice of the Registry is that copies of transcripts in this Division are not provided, except upon the application of a party and at that party’s cost. It may be that an oral disc/tape can be provided – but whatever the situation may be the fact is that the transcripts were not provided and, in any event, no complaint was ever made.

60 22 December 2009: On that day I heard an application by all of the Applicants to enable the Third Applicant (Mr Satchi) to represent all of them. I delivered an ex-tempore decision. There is no need for me to refer in detail to it, but relevantly I referred to the “Application” filed 21 August 2008 “which was, by common consent, re-titled “Application for Urgent Interim Order”; I observed that that document “sought to join a Third Respondent titled “M/s Bitumen Pty Limited” but expressed the opinion “that Bitumen Pty Limited has not been joined in these proceedings.” I referred to the Response filed on behalf of a person said to be “a director and shareholder” of the stated Third Respondent and noted that the Response “is firstly, in the first person and secondly, indicates that the solicitor, who filed the Response, is acting for Mr Javakhar only as a director and shareholder of the asserted Third Respondent” and I expressed the view that M/s Bitumen Pty Limited “has not yet been joined as a party in these proceedings.”

61 I then made reference to the determination by Fox JM in his decision 2 July 2009, written reasons delivered 15 September 2009; to the result that the Application for Urgent Interim Order “has been dismissed such that the only substantive matter before the Tribunal in these proceedings is, in fact, the Application for Original Decision filed 7 July 2008.” (I have added the italics). This is an important observation. All the toing and froing relating to M/s Bitumen Pty Limited was a furphy and a terrible waste of time and costs. Similarly, the Application for Urgent Interim Order filed 21 August 2008 was also a waste of time and costs. Perhaps if the Applicants had more closely focused their attention on the original Application filed 7 July 2008 the matter would have proceeded forward in an orderly fashion. As I have pointed out twice above, that Application was hopelessly drafted, totally confusing, unintelligible in parts and legally embarrassing.

62 I then stated that “it must follow that if the Applicants wish to join anybody other than Zeaiter Corporate Holdings Pty Limited and Tony Zeaiter as Respondent then the Applicants would need file an Amended Application for Original Decision, but only by leave, and plead such amended relief and particulars as may be sought against the First, Second and any Third Respondent”; thus the proceedings could move forward “in an orderly fashion”.

63 At page 3 of my decision I addressed the substantive application by the Applicants to enable Mr Satchi to represent all of them. The problem confronting Mr Satchi as Third Applicant was that he was adjudicated a bankrupt by Sequestration Order made 11 March 2009, ITSA reference NSW 2294/9/5. I made reference to Bankruptcy Act (1966), s 60(2) and (3), noted that there was “no evidence before me that would indicate that notice has been given to the trustee…. (but) that having been said it is plain to me that sub-section (2) applies and the proceedings commenced by the Third Applicant, in this Tribunal, are stayed until the trustee makes the election specified in section 60.” Then I made this observation :

“It is not to the point that the Respondent has moved this Tribunal; rather it seems to me there is an absolute obligation on a party to proceedings in a court or tribunal to present all matters relating to legal status as soon as possible after a party becomes aware that there has been a change of status of that party.

These are proceedings were commenced by the First, Second and Third Respondents and all of those Respondents have conducted a case thus far on the same bases, and on the same facts, and together. Therefore, it seems to me that all parties, and that includes the First and Second Applicants, as well as (obviously) the Third Applicant, have an obligation, not only to the Tribunal but also to the Respondents, to ensure the proceedings are conducted in an orderly fashion, and that includes appropriate notification of any change of legal status in or to one of their co-applicants. After all, they are conducting the proceedings effectively together on the same facts and effectively the same interests. There was a failure by the First, Second and Third Applicants to notify the Tribunal of the change in status of the Third Applicant, and the consequent legal result, as clearly specified in section 60(2) Bankruptcy Act 1966).

This failure seems to be a consistent problem because it was referred to by the Appeal Panel in Satchi & Satchi Australia Pty Limited v. Zeaiter Corporate Holdings Pty Limited (RLD) [2008] NSWADTAP 65 in relation to the change of status of the First Applicant in (this is a reference to the de-registration and subsequent re-registration of the First Applicant).

64 I then dealt with the submission by the Respondents that because of Mr Satchi’s bankruptcy he would not be entitled to represent the First and Second Applicants, either as of right or by leave. I was addressed in detail relating to Administrative Decisions Tribunal Act 1997 (ADT Act) s.71. In particular reliance was placed on s.71(1)(b1) and 71(2), and ADT Rule 1998 Rule 20A. The Respondents, through counsel, submitted with considerable force that if leave is required the Third Applicant because of his bankruptcy, would not be, as a matter of reality, amenable to a costs order if such an order is made, as distinct from a legal representative in circumstances where a costs order could be made against a legal representative personally.

65 However, I expressed the opinion that ADT Act s.71 does not apply. I stated:

“Whether it should apply is a different issue, but the Parliament has made it plain, by Retail Leases Act s.77C, that section 71 is effectively excluded when it comes to the appointment of an agent in proceedings in this Division of this Tribunal. Section 77C is in the following terms:

“(1) In any proceedings before the Tribunal, the parties to proceedings may appear in person or may be represented by a lawyer or other agent.

(2) This section applies despite the provisions of s.71 of the Administrative Decisions Tribunal Act 1997.”

In my opinion that sub-section (2) makes it plain that the Parliament had directed its attention to the terms of s.71of the Administrative Decisions Tribunal Act and the discretion that was properly given to this Tribunal under that Act, yet thought it appropriate to exclude section 71 from the agency provisions that apply to retail lease parties in proceedings in this Division. In my opinion it would be wrong for me to attempt to impose some gloss or to try to import the terms of section 71 into the Retail Leases Act and, in my view, section 77C(1) must be given its force and effect in its precise terms. Those precise terms entitle a party to be represented by a lawyer or other agent and once I am satisfied that the First and Second Applicants have appointed the Third Applicant as their respective agent then whatever may be the Third Applicant’s status, and whatever may have been said about him in previous decisions, the fact remains that the section permits him to be so appointed as the agent for the First and Second Applicants”.

66 I went on to make the following observations:

“Therefore, it seems to me that in the circumstances the Tribunal must make a declaration that the Third Applicant is unable to represent himself in these proceedings and that the proceedings as instituted by him are stayed. That does not stop the Third Applicant from acting for the First and Second Applicants (as their agent) and notice will need to be given to the Trustee to enable the Trustee to decide whether or not to elect to continue with the proceedings. The Tribunal proposes to make a self-executing order in that respect and direct that notification be given to the Trustee in Bankruptcy such that, hopefully, this aspect of the proceedings can be dealt with appropriately under law.

The First and Second Applicants should be given the opportunity to file and serve any Amended Application and a time limit will be imposed; and I propose to make an order for costs of these proceedings, and that is: that the costs of this application be paid by the First and Second Applicants.

The reason for that is, in my opinion, as I have previously expressed in this Judgment, that all parties have an absolute obligation, particularly where they are conducting proceedings on the same bases, on the same facts, and together, to ensure that the proceedings are conducted in an orderly fashion and that includes the change of legal status of one of their co-applicants. It is plain to me that the First and Second Applicants knew, at all times, that a Sequestration Order had been made in respect of the estate of the Third Applicant on the 11 March 2009 and did not so inform this Tribunal, such that the original Application and the Application for Urgent Interim Order in the proceedings thus far have been conducted in such a way that is inconsistent with the terms of Bankruptcy Act section 60”.

67 I then made the following declarations, orders and directions:

“1. The Tribunal declares that the Third Applicant Thambiappah Satchithanantham is unable, by force of Bankruptcy Act 1966 section 60, to represent himself in these proceedings.

2. The Tribunal declares that these proceedings, as instituted by the Third Applicant, are stayed by force of Bankruptcy Act (1966) section 60(2).

3. The Tribunal notes that the Third Applicant is able to and does represent the First and Second Applicants by force of Retail Leases Act section 77C(1).

4. The Tribunal directs the Registrar to provide a copy of this ex-tempore decision and a copy of these orders/directions to the Official Trustee in Bankruptcy, Level 4, 201 Elizabeth Street, Sydney, NSW, 2000, ITSA reference NSW2294/9/5.

5. Absent the Trustee making an election pursuant to Bankruptcy Act section 60(3) and filing same in this Tribunal on or before 10 February 2010 the Third Applicant will, by force of this order, be dismissed from these proceedings.

6. The First and Second Applicants have leave to file and serve any Amended Application for Original Decision as they may be advised, no later than 10 February 2010.

7. The matter is adjourned for further directions at 9.40am on 11 February 2010.

8. The First and Second Applicants are to pay the costs of the First and Second Respondents from and including 8 October 2009 up to and including 22 December 2009.”

68 Pausing here it is plain from the above that Mr Satchi was no longer a party to these proceedings but was entitled, in my view, to continue to represent the company and his wife as First and Second Applicants. The reason for the grant of leave to file and serve any Amended Application for Original Decision was firstly, because in my view the original Application filed 7 July 2008 was hopeless and, secondly, the Application for Urgent Interim Order filed 21 August 2009 sought to joint Bituman as a party without leave and in my opinion to join further Respondents would require leave. There is good reason for that in the circumstances of this case where the original Application was so hopelessly drafted, and Bituman was sought to be joined in circumstances where plainly it was not a party and, at best, merely a purchaser of the Second Applicant’s business and could not (so it seems to me on the facts before the Tribunal) ever be a party to proceedings in this Division. Consequently, I formed the clear view, a view clearly justified by what followed, that before the surviving Applicants could join any Respondents they would require leave of this Tribunal.

69 I pause to express concern as to the operation of RLA s. 77C. This section is framed in such a way to permit a person, who would fail the ADT Act s.71 tests, to represent a party in this Division. Why the Parliament thought this appropriate is not clear to me. A person who represents another in a court or tribunal must be susceptible to court and tribunal orders and, in particular, to personal costs orders in appropriate circumstances. To permit a bankrupt to act as an agent negatives that ability, either in the court or tribunal, or equally as important, in the principal. An example of the liability of lawyers may be found in Civil Procedure Act 2005, s. 56(4) and (5), and in NSW Bar Association v. Jones [2008] NSWADT 253 – there are, no doubt, other examples, and, at least so it seems to me, here Mr Satchi accepts no personal liability for any losses that may be visited upon the First and/or Second Applicants as a consequence of his behaviour. That is not to say that a bankrupt could never be granted leave to act as an agent – each case would need to be determined on its merits – but in the case before me the prospects of success would be very remote.

70 It is also important to observe that my ex-tempore decision was delivered 22 December 2009, some 17 months after the original Application had been filed, and after numerous directions hearings, and after a dismissed Application for Urgent Interim Order, yet the matter had not moved forward in an orderly fashion and in an understandable fashion which would focus on the issues as sought to be agitated in this discrete matter.

Appeal

71 All three Applicants appealed my ex-tempore decision 22 December 2009. Notice of Appeal was filed 10 March 2010, Appeal Panel 109016. The Appeal was heard by the President, O’Connor DCJ who delivered an ex-tempore decision 20 April 2010 and provided written reasons 11 May 2010. Again here the Appellants appeared through Mr Satchi himself and, although the Notice of Appeal is in the name of all three Applicants as Appellants, the written decision is in the name of Mr Satchi solely. The decision of the Appeal Panel is reported Satchithanantham v. Zeaiter Corporate Holdings Pty Limited (RLD) [2010] NSWADTAP 30.

72 The President referred to my ex-tempore decision and expressed the view at [11] that “on the face of it … the appeal is without any prospects of success …”. His Honour observed at [14] that a “feature of all the litigation (referring to the numerous applications in this Tribunal, both at first instance and on appeal and the proceedings in the Supreme Court) has been a bringing by Mr Satchi of interlocutory applications”. He went further to observe at [15]:

“From what I have heard Mr Satchi say today he remains aggrieved as to matters which, in my understanding, have been the subject of final determination by this Tribunal in previous proceedings”.

This is an important observation. It has not been challenged by any Applicant. It is also clear from my recital of the pleadings in the original application 7 July 2008. His Honour also relevantly observed at [20] that the Tribunal was “dealing here with an experienced appellant who is very familiar with the rules and procedure that govern the Tribunal”.

73 The appeal was dismissed. Mr Satchi was ordered to pay the Respondent’s costs of the appeal fixed at $500.00.

74 Thus, the Tribunal, is at this point of time, left only with the original Application filed 7 July 2008 in which the applicants are the First and Second Applicants only. What happened next?

Further Directions/Interlocutory Hearings

75 The Directions fixed for 11 February 2010 did not eventuate. What next happened was that Mr Satchi filed, on 5 March 2010, an Amended Application for Original Decision. It is now necessary to turn, unfortunately in some detail, to that Amended Application.

Amended Application 5 March 2010

76 This is a not inconsiderably sized document. It is 40 pages long, being framed as 5 pages of pleadings and most of the balance as annexures referred to in the pleadings.

77 Importantly, it substantially amends the names of the parties, without leave. Firstly, the document recites 7 Applicants, as follows:-

“1. Satchi & Satchi Australia Pty Limited [ACN 107 976 518].

2. Hemalatha sothy ranjini Satchithanantham.

3. Thambiappah Satchithanantham [Refer orders made on 22/12/09 in this matter & appealing the decision].

4. Bramooth Satchithanantham t/s

a) Satchi & Satchi Australia [BN 98011011].

b) Brightstar properties Holdings [BN 97941627].

c) Satchi’s Stylemart Emporium [BN 98032871].

d) Hema’s Music and Movie Wold [BN 98027851].

e) Stylemart Satchi Australia [BN 98275737].

5. Singapore Stylemart.

6. Singapore Stylemart Sydney.

7. Indo Lanka Fashion and Spices [BN 98324254].”

Pausing here, and avoiding reference to the bad spelling, it would seem that this Amended Application seeks to retain the First and Second Applicants as parties, seeks also to retain the Third Applicant, Mr Satchi; and then adds 4 more asserted applicants. No authority was provided by Mr Satchi authorising him to act for those additional asserted applicants, nor join them as applicants.

78 Secondly, the Amended Application cites 8 Respondents as follows:

1.Zeaiter Corporate Holdings Pty Limited [ACN 085 604 191].

2.Anthony Zeaiter.

3.Mr Tim Olliffe, a registered solicitor of NSW.

4.Mr Peter Jackson, a registered solicitor of NSW.

5.Wentworthville Real Estate Pty Limited T/as Wentworthville Starr partners Property Management [ABN 63 050 695 577].

6.ms/Bitumen Pty Ltd [ABN 87 085 604 191].

7.Shamgmugam Ahembaranathan Javakhar.
8.Mr Ian Garling Grey t/as

a)M/S Twenty six Princes Highway Bulli Pty Limited [ACN 098 418 832].
b)m/s Maybreyne Properties Pty Limited [ACN 001 221 816].

Again, it can be seen that this Amended Application seeks to retain the First and Second Respondents, seeks to add another 6 Respondents; and it is plain that the 8^th Respondent, as described, could not possibly be, as a matter of law, a person trading as two proprietary limited corporations – either the 8^th Respondent is being sued in his personal capacity, or the two corporations are being sued individually or collectively.

79 The ordinary rules relating to amendment of documents require, at the very least, amendments to be highlighted by underlining. This enables the other party and the court/tribunal to identify with particularity the amendments that are sought to be made to the initiating process. The document now under consideration fails that test in that it underlines only various, and a short number of, amendments and leaves the other amendments to be identified by the other parties and the Tribunal. Indeed, it is a completely different document. Having regard to the issues the subject of this decision, it is necessary to set out the orders sought as follows:

“1 Declaration that the registered lease AA628205C & AA628206A relied upon by the first respondent m/s Zeaiter Corporate Holdings Pty Ltd.[ACN: 085 604 191] are unenforceable against the first and second applicants, as applicable.

2 Declaration that the terms and conditions of the registered leases AA628205C & AA628206A relied upon by the first respondent are null & void.

3 Declaration that the first respondent and/or its’ agent/legal representatives have locked up & took the possession of the said premises, as referred to in the order-1 above, are unlawful.

4 Declaration that the first and second respondents have involved in deceptive and unconscionable conducts since 27 November 2003 till to date.

5 First respondent surrender the said lease promises to the Applicants, known as 53 Station Street Wentworthville NSW 2145, first floor and ground floor, as they were in the original position on 12/7/2004 and 2/8/2008 respectively within 28 days of this order.

6 First respondent pay the monitory compensation to the applicants as to the losses and damages suffered by them from 21/12/2004 until to date, as assess by the court [which is now exceeded to A$ 7 Million ( Dollars Seven million} ] for which, the particulars have been provided & recorded in this tribunal & the courts and further particulars will be provided during the cause of case management in this matter, upon request.

7 Declaration that the third and fourth respondents have acted in misconducts in their legal professional roles against the applicants whom they have acted, which amounts to the professional negligence part of the respective solicitors.

8 Respondent pay interest of 9% p.a from 12 February 2004 for the monitory order -6 sought above, until full and final settlement.

9 Respondents 1 -4 are liable for the order -6 sought above, jointly and severally.

10 Respondents 5 – 7 together with the respondents 1-3 are liable for the losses & damages suffered by the relevant applicants from 3/3/2008 and ongoing, jointly and severally, for which, the particulars have been provided & recorded in this tribunal & the courts and further particulars will be provided during the cause of case management in this matter, upon request.

11 Respondent 8 is liable for the losses and suffered by the relevant applicants from 28/4/2004 and ongoing, jointly and severally with the companies involved with the deeds executed in 2004, for which, the particulars have been provided & recorded in this tribunal & the courts and further particulars will be provided during the cause of case management in this matter, upon request.
12 Costs on indemnity basis, suffered by the applicants and their acting agent from 21/1/2004 and ongoing until finalisation of the proceedings both in the tribunal & in the courts ..”

It can readily be seen by comparison with the original Application filed 7 July 2008 that the orders sought/pleadings are totally different.

80 But what is very clear from those recited pleadings is that, other than by reference generally, Applicants 3 – 7 do not appear and their relevance to the proceedings appears problematic. Furthermore, and by way of example, paragraph 11 (recited above) is meaningless to a freshly joined Eighth Respondent, Mr Grey; and is, indeed, meaningless to me.

81 The document then proceeds to set out “Grounds for Application (Including Particulars)”. It pleads that the Applicants rely “on all documents under the ADT file nos: 055131, 075031, 075034 and 085133 and the respective appeal panel of the ADT file nos, the supreme court no: 30145/07 and 30008/08 and 3668/08 until this date”. For reasons recited above this is a hopeless pleading in that it fails to identify the relevant documents and in any event, is quite likely to have included documents filed by various Respondents and apparently now being relied upon by the Applicants – a rather dangerous approach to litigation !

82 The document then pleads as against the First and Second Respondents a repeat of paragraphs 1 – 13 of the initial Application filed 7 July 2008, and annexes a copy of that Application. It then asserts to “repeat the grounds at the paragraphs 1 to 26 inclusive as to the statement of claim dated 8/7/2008 filed and served in the Supreme Court proceedings matter 3668/08 …” and annexes a copy of that document. It would be tedious to review this document – in any event, there is no assertion of what was the result of those Supreme Court proceedings.

83 Nextly, the Applicants seek to “repeat the grounds at the paragraphs 1 to 26 inclusive as to the statement of claim dated 8/7/2008 filed & served in the Supreme Court proceedings matter 3668/08 …” and a document is annexed. The document that is annexed has nothing to do with any Supreme Court proceedings but rather asserted pleadings and particulars in a matter in this Tribunal 075031 and filed 9 November 2007.

84 Then, the Applicants “repeat the grounds at the paragraphs 1 to 25 inclusive, in particular paragraphs 17-25 which are more relevance as to the Final written submissions dated 18/6/09 filed & served in the Appeal Panel of the ADT nos 089048 and 099022 …” and a copy of those are said to be annexed. However, the document that is annexed is in file 085133 (which is the matter before me!) and is said to be an Application filed 21 August 2008, the terms of which are not in the Tribunal’s file, which alleges contempt of the Supreme Court and makes various other allegations.

85 Finally, as against the First and Second Respondents, the Applicants seek to “repeat contents of the “Notice” dated 6/3/2008 served on to the relevant parties … and a copy of that “Notice” is said to be attached. This attachment appears to be “Final Submissions” filed in proceedings before the Appeal Panel of this Tribunal, file numbers 089048 and 099022. What use could be made of written submissions as part of grounds in support of an application is not entirely clear to me.

86 The Amended Application then made certain specific pleadings against Respondents 3-7 inclusive. I do not propose to set out those assertions, for reasons that will become apparent; and in any event they were unproved, embarrassing, and are without the jurisdiction of this Tribunal. This Tribunal has limited statutory jurisdiction for the purposes of this decision. It is not necessary for me to examine the parameters of Retail Leases Act s.63, s.70 and s.72 and/or s.72AA.

on this day I made the following Notations and Orders:

“1. Note: consistent with the orders made 22/12/09 and in Chambers 04/02/10, the Third Applicant is by force of those orders dismissed from the proceedings and is no longer a party thereto.

2. Applicants 4, 5 6 and 7 file and serve appropriate Notices of Acting as Agent and any Applications for Leave to be parties to these proceedings, and an affidavit setting out who are the persons trading as the asserted entities with appropriate supporting corporate affairs documentation, and in support of any application for such leave, no later than 7 April 2010.

3. Costs of respondents 1, 2 3, 5 and 8 are reserved.

4. Matter adjourned for further directions 6 May 2010.”

Application to Amend

88 It is important to observe that the Amended Application filed without leave (as to the joinder of additional parties) 5 March 2010, was now effectively the subject of two further amendments. Firstly, Mr Satchi filed a further Application on 7 April 2010 seeking “the leave of the Tribunal to the following orders in reference to the above matter” and as follows:

“1 Bramooth Satchithanantham t/s Satchi & Satchi Australia [BN 98011011] be joined as additional applicant in these proceedings.

2 Bramooth Satchithanantham be represented by his father as to his disability, family arrangements and guardianship tribunal recommendation / orders made.

3 Applicants withdraw the respondents 4, 6, 7 and 8 as to the amended application for original decision filed and served 5/3/10.

4 Chistine Karthikeyan, a solicitor of NSW be joined as the 4 ^th respondent in these proceedings.

5 King Mortgage Pty Ltd (ABN 62 105 890 971) [in liquidation] be joined as the 6 ^th Respondent in these proceedings.

6 National Australia Bank Ltd [ABN 004 044 937] as the 7 ^th respondent in these proceedings.

7 These proceedings be transferred back to the supreme court of NSW the file no: 3668/08 which can be combined and heard together.

8 Stay of the first respondent’s activities including the leasing of the lease premises at 2/53 Station Street Wentworthville NSW 2145 until further order of this Tribunal.

9 Any further orders the tribunal deems fit.

Grounds :

For Orders- 1 & 2 sought :

1 Satchi & Satchi Australia was a party to the lease offered by the first respondent on 1/12/2003 and has been in continuous trading in the premises 53 station street Wentworthville NSW 2145 since then until now.

For orders-3 sought :

2. Applicants have separate cause of action against them in the Supreme Court of NSW, which are current.

For orders- 4 sought :

3 Applicants rely on the affidavit evidence and witness evidenced by Chistine Karthikeyan, which were in question and her subsequent dealings with the tribunal members/respondent, as referred in the judgment delivered in the matter 055131, NSWADT [2008] 165.

For orders-5 sought :

4 Second Applicant’s Cross claim filed in the Supreme Court matter 12756/04 on 11/4/04, which has not been determined yet and in relation to the paragraph 16 of the annexure “C” as referred in the amended application filed & served on 5/3/10 in this matter.

For orders- 6 sought :

5 Second Applicant’s Cross claim dated 30/6/2008 in the Supreme Court matter 15249/05, which has not been determined yet and in relation to the paragraph 17 of the annexure “C” as referred in the amended application filed & served on 5/3/10 in this matter.

For orders- 7 sought :

6 This application claim exceeds the tribunal’s jurisdiction limit, which is over A$6 Million claimed by the applicants in these proceedings.

For orders-8 sought:

7 Applicant rely on the notice sent to the respondent’s agent, a copy is enclosed herewith marked as Annexure “A”. [1 pages].

8 Upon the tribunal make the determination on 6 may 2010, applicants will act accordingly and file & serve “ FURTHER AMENDED APPLICATION FOR ORINAL DECISION” with affidavit in support.”

89 This is a quite extraordinary document. It indicates plainly that the Amended Application filed 5 March 2010 was a document prepared with scant regard as to its content and consequences; even a cursory view of this Application would reveal that conclusion.

90 Secondly, Mr Stachi filed a document styled “Urgent Interim Application” on 6 May 2010.

Urgent Interim Application 6 May 2010

91 The Applicants, again represented by Mr Satchi, filed this document. It is a quite extraordinary document. I set it out below, as follows:

“Applicants seek the following orders that:

1 Applicants withdraw the additional respondents 4 and 6 to 8 inclusive as sought in the amended application filed & served in this matter dated 5 March 2010.

2. Applicants withdraw the additional respondents to 3 to 6 inclusive sought in the application filed 7 April 2010, as notified to the tribunal & respondents via fax on 5 May 2010.

3. Applicants are not intended to bring any parties as additional applicants, as per directions made by the Tribunal on 11/3/10.

4. Applicants rely on the amended application dated 5 March 2010 and now combine all of the claims against the first and second and 3 ^rd and 5 ^th respondents jointly & severally, as to the claims made against the additional parties sought as referred in the amended application dated 5 March 2010 further application filed on 7 April 2010 and subsequently served, without amending pleadings in amended application dated 5/3/10

5 Tribunal to fix the final hearing of the amended application dated 5 March 2010 as to 3 ^rd & 5 ^th additional respondents sought then now become 3 ^rd & 4 ^th respondents respectively in this matter.

6 Stay of the operation of any leases entered in to and /or executed and registered by the first respondent, other than the registered leases AA628205C and AA 628206A after 12/7/2004 in the LPT office F/I – 13602-147, until further order of this tribunal.

7 Stay of any trading and activities in the lease premises as referred in the order-6 sought above, until further order of this tribunal.

8 Stay of the orders made by the tribunal the matters 055131, 075031 & 075034 and subsequently Appeal panel matters 079043, 089025, 089048 and 099022 & 109016, until further of this tribunal.

9 Any further orders the tribunal deems fit.

Grounds:

1 In reliance of the amended application filed on 5 March 2010 in these proceedings, the 1^st, 2^nd, 3^rd and 5^th respondents have been involved in “Fraudulent and deceptive conducts” as evidenced in this tribunal and various courts involved with the parties since 13 January 2004 as to notice sent by the 3^rd respondent to applicant’s solicitors Karthikeyan solicitors who confirmed that acceptance on 14 January 2004, as evidenced and recorded in these proceedings.

2 There is no evidential supports tended by the first respondent as to the claim made against the applicants since 2005 which were transferred from the local court to this tribunal and determined by the tribunal & appeal of the Tribunal in many matters as recorded, which involved with the parties since 2005 and on going.

3 The members of the Tribunal and the Appeal panel of the tribunal have been misguided & misled by the First respondent throughout since 2005 and on going by abusing the court & tribunal process against the law, as to the admitted evidential supports relied upon in the tribunal and appeal panel of the Tribunal.

4 The respondent subsequently misled the supreme court since 4 February 2008 and have been abusing the court process in the Supreme court of New South Wales and Bankruptcy court since then and on going in reliance of the grounds above.

5 The respondents are jointly & severally responsible for the consequences faced by the 1^st and 2^nd Applicants as to the bankruptcy matters and the deregistration of the 1^st Applicant when occurred since 2005 and ongoing.”

92 Again, this only underlines the observations that I have made above and indicates clearly that the Application 7 April 2010 was prepared filed and served, again with scant or no regard to its content or its consequences.

Further Directions/Interlocutory Hearings

: on this day there was considerable discussion relating to the Application 7 April 2010 and the Urgent Interim Application 6 May 2010. I made the following Notations and Directions:

“1. Applicants withdraw their claim against the Fourth Respondent. The Fourth Respondent is no longer a party to these proceedings.

2. Applicants withdraw their claim against the Sixth Respondent. The Sixth Respondent is no longer a party to these proceedings.

3. Applicants withdraw their claim against the Seventh and Eighth Respondents. The Seventh and Eighth Respondents are no longer parties to these proceedings.

4. Note: Respondents, One, Two, Three and Five are the only Respondents.

5. Note: The Third Applicant (Mr Satchi) is no longer a party.

6. Note: Applicants Four, Five, Six and Seven are no longer parties.

7. Costs reserved.

8. Matter adjourned for further directions/hearing on 20 May 2010 at 2-00pm.”

the proceedings came back before me on this day, Mr Satchi representing the applicants and counsel representing the First and Second Respondents. There was some considerable debate. I formed the view, perhaps (again) with a generosity of spirit, that Mr Satchi should be given yet a further opportunity to file a proper Amended Application. I formed the view that the proceedings thus far were incompetently conducted, that the documents were incompetently prepared but, that having been said, in my view the First and Second Applicants should be given yet a further opportunity to get their house in order. I was very concerned about the constantly incurring costs of the First and Second Respondents and the inordinate waste of the time of the Tribunal and its Registry staff. After hearing argument I delivered a short ex-tempore decision and made the following Orders and Notations:

“1. Dismiss the Application filed 6 May 2010.

2. Leave granted to the First and Second Applicants to file and serve a Further Amended Application for Original Decision by 15/06/10.

3. First and Second Applicants to pay the costs of the First and Second Respondents in relation to the Applications filed 6 and 7 May 2010.

4. Note: Application filed 07/04/10 is withdrawn.

5. Note: Application filed 06/05/10 is to proceed.

6. No further amendments are to be permitted to join any party, either by way of Applicants or Respondents.

7. Note: the only Application before the Tribunal is the Amended Application filed 05/03/10 and the Urgent Interim Application filed 06/05/10 – the latter as to paragraphs 6, 7 and 8 only.

8. Matter adjourned for further directions on 17 June 2010.”

: again, Mr Satchi appeared for the First and Second Applicants and counsel represented Respondents, 1, 2, 3 and 5. Counsel applied orally for the proceedings to be dismissed for want of prosecution. This application had been made on a previous occasion but, rather than being dismissed was simply stood over for re-agitation at a latter date. It was now re-agitated. I delivered a further ex-tempore decision in which I observed, inter alia, that:

“The only pleading before the Tribunal is the Amended Application for Original Decision filed 5 March 2010. The reason that I say that is because the original Application filed 7 July 2008 was formally amended by the Amended Application filed 5 March 2010; thus it seems to me the original Application 7 July 2008 ceased to have any force and effect. The only document with any force and effect is the Amended Application subsequently filed 5 March 2010.

It has been submitted to me by the agent for the Applicants that the Tribunal should proceed on the basis of the original Application 7 July 2008 and regard the Amended Application 5 March 2010 as a supplementary Application. Thus it is said that all the material with regard to pleadings will be before the Tribunal.

I confess I do not understand that submission because whatever may have been the position the Amended Application is substituted for the original and that is the only document now before the Tribunal.”

96 It is important to set out the balance of my ex-tempore decision:

“With regard to the Urgent Interim Application filed 6 May 2010, that was dismissed on 20 May 2010. Leave was granted to the applicants to file and serve and serve a Further Amended Application for Original Decision by 15 June 2010 and certain costs orders were made. No further Amended Application has been filed; thus, and at the risk of repeating myself, the only Application before the Tribunal is the Amended Application filed 5 March 2010, and that must be the Application that the Tribunal is being asked to determine.

It is important to refresh our memory of what has happened to the Amended Application. Firstly, on 6 May 2010 the claims against the Fourth, Sixth, Seventh and Eight Respondents were withdrawm such that the Fourth, Sixth, Seventh and Eighth Respondents are no longer respondents or parties to these proceedings. Secondly, the Tribunal formerly notes that the only respondents are the First, Second, Third and Fifth Respondents. Thirdly the Tribunal notes and confirms previous orders and directions in or to the effect that the Third, Fourth, Fifth, Sixth and Seventh Applicants are no longer parties to these proceedings. In those circumstances it seems to me that the matter should move forward as best possible, having regard to those findings and those orders that have been made previously and confirmed by me in the last few minutes.

The Applicants have told me through their agent, that all affidavit material has been filed by them; thus it falls to First, Second, Third and Fifth Respondents to respond as they may be advised. The Applicants also tell me from the bar table, through their agent, that they are now impecunious and effectively have no funds available to proceed with this matter by way of further aplications for amendment. In any event I must say that the Tribunal would be very reluctant, to say the least, to permit any further amendments in these proceedings, they having been commenced in 2008.”

97 There was then a renewal of the Application that the proceedings be dismissed for want of prosecution.

98 Cutting to the chase, Mr Satchi made a long submission relating to impecuniosity matters in the Supreme Court, and after hearing his submissions I then made the following observations:

“Mr Satchi, an agent for the Applicants has made an emotional plea for these proceedings to somehow be listed for hearing on the basis that those whom he represents are impecunious or about to go bankrupt; alternatively or in addition, that the documents upon which he would seek to rely are locked up in a house somewhere and “they” are unable to proceed with the matter and it has been the fault somehow of the Respondents that the Applicants have been placed in this position. I have shortly reviewed the file and I am, quite frankly, unable to agree with that proposition. When one looks at the file, at the risk of repeating what I said earlier this afternoon, the Applicants themselves filed an Amended Application on 5 March 2010. That Application sought to join, if that is the right word, or embroil, five additional Applicants and six additional Respondents, and it is quite an extraordinary proposition to suggest, in my respectful opinion, that somehow that is the fault of the Respondents. As it turned out subsequent to 5 March all those additional Applicants have been dismissed from the proceedings and many of the additional Respondents have been dismissed from the proceedings.

In addition to that an Application for Urgent Interim Order was made on 6 May 2010; that was dismissed on 20 May 2010. It seems to me to be quite wrong for a submission to be made, with some force from the bar table by the agent for the Applicants, to the effect that somehow the Respondents have been guilty of some actions that have forced the Applicants into their current position.

The Applicants’ agent has also submitted that somehow the Tribunal has some obligation to assist the Applicant because it is said that they are unrepresented legally. To some degree that is true because the Tribunal generally tries to assist unrepresented parties. But the Tribunal should not attempt to plead their cases for them. Time and time again in this Tribunal it is now common practice that unrepresented Applicants are strongly recommended to obtain legal advice and legal representation. The Applicant’s agent is not a tyro when it comes to representing himself and the other Applicants in proceedings in this Tribunal; and indeed the Amended Application speaks volumes for his expertise.

In my view there is nothing in the additional submissions. It is my opinion that the matter should go over for a period of time to enable the respondents to come to grips with my earlier decision this afternoon and what is left of the Amended Application and then to be able to tell the Tribunal with some reasonable precision what they propose to do.

99 There was then some discussion and then the following exchanges took place:

Molloy: As a consequence of what has flowed from the statements made at the bar table and the observations of the Tribunal the Respondents wish time to consider their respective positions. In my opinion that is reasonable having regard to the Amended Application of 5 March 2010 and what has flowed subsequently. The Tribunal directs First, Second, Third and Fifth Respondents to file and serve by 8 July 2010 any applications as they may be advised with supporting affidavits. The proceedings will be adjourned for further directions to 15 July 2010 at 2-00pm.

Satchi: Your Honour, can I make an application that you fix a hearing date regardless of the directions made because we need a hearing date as soon as possible because now your Honour has made a direction that the Respondent has to file whatever that is material but we are urgently seeking …. (not transcribable) …. date that is crucial because we are very disadvantage, we are very disadvantage, we are very disadvantaged. I mean it does not stop fixing a hearing date regardless of what Applications they’re putting because we are seeking substantial hearing of this matter. Your Honour, because we are very, very disadvantage we cannot go further up, we have no means. Please.

Molloy: The Applicant has applied to the Tribunal for the Tribunal to fix a date for hearing of the Amended Application. In my opinion notwithstanding the submission that has been made in relation that impecuniosity and otherwise of the Applicants, and having regard to the fact that the Amended Application was only filed on 5 March 2010 and what I have just decided in or to the effect that the Respondents, that is Respondents, 1, 2, 3 and 5, are entitled to consider their position and file any Applications as they may be advised, then the Application and the appointment of a hearing date is premature and would be a waste of the Tribunal’s time. The Respondents should be entitled, and properly entitled, to consider their position.

Satchi: Your Honour, they have put a number of affidavits already in the court file.

Molloy: Mr Satchi you keep telling me this and you keep going over the old ground. I have made a decision that is all I can do. I am not going to keep rehashing it all the time. It’s up to Mr Rolfe (counsel appearing for Respondents 1, 2, 3 and 5). An application was made once before and you were successful; an application can be made again and you may be successful again. I don’t know. At the moment that is where we are ..”

: On this day I was informed there were certain proceedings between the parties in the Supreme Court. I made the following notations and directions:

1. Note: Applicant has filed a Notice of Motion before Garling J on 25 June 2010 which was unsuccessful.

2. Note: Applicant is to file an Amended Statement of Claim by 20 August 2010.

3. Note: Zeaiter is to file its Defence by 16 September 2010.

4. Note: The Supreme Court proceedings are back before Garling J. on 17 September 2010.

5. This matter adjourned for further directions to 23 September 2010.

101 23 September 2010:

Mr Satchi again appeared for the Applicants and Mr Rolfe of counsel for the remaining Respondents. Counsel renewed his Application to dismiss these proceedings 085133 for want of prosecution. I was given certain further information relating to the status of proceedings instituted in the Supreme Court by Mr Satchi, the details and prayers of which I was not informed, save that the proceedings had been apparently stayed with the plaintiffs having leave to file an Amended Statement of Claim until 4-00pm on 17 December. Counsel also raised an issue that he had raised previously, namely the question of security for costs, bearing in mind the admitted impecuniosity of the Applicants.

102 I formed the opinion that the proceedings should be dismissed. I made the following ex-tempore decision:

“These proceedings, between the first three Applicants and the First and Second Respondents, have had a long and chequered history in this Tribunal and have been backwards and forwards on numerous occasions. The Applicants have filed an Application for Original Decision on 7 July 2008, an Application for Urgent Interim Order on 21 August 2008, an Urgent Interim Application on 6 May 2010, and an Amended Application for Original Decision on 5 March 2010. There have been a number of decisions of this Tribunal in relation to these proceedings, including a decision of Fox JM on 2 July 2009, various detailed directions made by me on 2 October 2009, an ex-tempore decision of mine on 22 December 2009, and various and detailed directions and further ex-tempore decisions of which the primary one is dated 17 June 2010.

On that latter occasion I reviewed the proceedings in some detail, noted that the various urgent interim applications had been dismissed, noted that leave had been granted for the Applicants to file and serve a Further Amended Application by 15 June 2010, and noted that, as at 17 June 2010, no further Amended Application had been filed such that the only Application before the Tribunal was the Amended Application filed 5 March 2010.

I reviewed that document and noted that quite a number of the respondents were no longer parties to the proceedings for one reason or another. Why they were joined in the first place remains a mystery. I noted also that the Third, Fourth, Fifth, Sixth and Seventh Applicants were no longer parties to the proceedings and why they were listed as parties to the proceedings still remains a mystery to this Tribunal.

One wonders, in fact, whether any authority was ever given to list those persons as Applicants. In any event, no leave was ever obtained to join them and there was no evidence that they were entitled to be so joined or be parties to these proceedings. I observe that since 17 June 2010 the remaining Applicants have take no further steps in these proceedings notwithstanding the fact that I granted leave to them to file and serve a Further Amended Application by 15 June. That, if my memory serves me correctly, was on the basis that the Amended Application, which was then before the Tribunal, was so disorganised that it was difficult to understand precisely what was required. I observe that time and time again, in this Tribunal, it is now common practice that unrepresented Applicants are strongly recommended to obtain legal advice and legal representation.

The Applicants, for whatever reason, have rejected that advice or have not heeded it and the matter has not progressed further in any shape or form, notwithstanding numerous directions hearings. On 17 June 2010, counsel for the Respondents, or at least those Respondents remaining, namely Respondents No. 1 and 2 renewed, an application previously made that the proceedings be dismissed for want of prosecution. That application is renewed again today, and, understandably, costs continue to be incurred at, no doubt, an alarming rate on behalf of the remaining Respondents without the matter progressing forward at all in any meaningful way or any way at all. In my opinion the Applicants are not moving forward with this matter in any reasonable or proper way consistent with their duties as litigants and are putting the Respondents to unnecessary cost and expense in continuing to come up here when at all times the Tribunal has been at pains to point out that the proceedings must be put in proper form. That is why the leave was granted to amend on 17 June 2010.

In my opinion the proceedings should be dismissed for want of prosecution and the Applicants should pay the costs of the Respondents.”

103 Because this is a written decision I would seek to shortly enlarge upon my ex-tempore decision. In my view the only document that is a current valid initiating process in these proceedings is the Amended Application filed 5 March 2010. If I am wrong in that appreciation then one needs to revert back to the original Application filed 7 July 2008 and, for the reasons I have previously expressed, that document was incompetently drafted, difficult (to put it mildly) to understand and required reference to other documentation when, in my view, initiating process should be self-contained and identify with reasonable precision the facts and issues. There were some portions of the 7 July 2008, application that were simply meaningless.

104 The Amended Application 5 March 2010 suffered from similar problems. More importantly the specified grounds (to which I have made detailed reference at [76-86]) did not stand up to any reasonable appreciation and were, in many cases, quite either misleading or irrelevant. It is my clear view that the Amended Application 5 March 2010 was not a document, even with its subsequent amendments, that could validly go forward to a hearing.

105 In addition, neither the original Application nor the Amended Application was supported by any probative sworn material. The Applicants seem to be of the view that they would simply rely upon all the material filed in previous nominated proceedings and, somehow, that was the evidence that was sought to be put before the Tribunal at hearing. With respect, that is a quite hopeless situation. Proceedings are discrete and need to be dealt with on their particular merits and supported by sworn material in relation to the matters sought to be agitated in those discrete proceedings. It is simply not good enough to tell the Tribunal that all material previously filed in various proceedings in the Tribunal and the Supreme Court was to be relied on by the Applicants – some form of catch-all submission. It is that type of approach to litigation that is sloppy, legally embarrassing, and fails the most basic test of identification of the issues to be tried, the particulars and evidence upon which reliance is to be placed.

106 Furthermore, both Applications were said to be combined retail tenancy and unconscionable conduct claims and, as I have spelt out above, no formal Particulars were supplied by the Applicants but rather the Applicants simply refused to concentrate their minds upon the necessary Particulars that are required, and properly required, to support an unconscionable conduct claim; and often required to support a retail tenancy claim. The bald refusal to supply those Particulars is a clear indication to me that the Applicants did not wish to proceed in accordance with the directions and procedures of this Tribunal, notwithstanding their oft-repeated and emotional pleas for “justice”. “Justice” is a two-edged sworn in that it requires, at the very least, proper particularisation/ identification of the issues and the evidence said to support the assertions. The “justice” is not only the “justice” to the Applicants, but also “justice” to the Respondents, who are obliged, by the commencement and maintenance of proceedings against them, to properly engage the services of lawyers and are entitled to know, with reasonable precision, the case against them.

107 Finally, it would appear that, even on the Applicants’ own case, that the issues sought to be ventilated in the proceedings before me were in fact issues that had been ventilated in previous litigation. In my view this is plain and obvious, simply because the Applicants refused to file any probative affidavits in support of either Application but relied instead upon affidavits in many other proceedings in this Tribunal and in the Supreme Court. That, in itself, supports the conclusion that I have just reached. In any event, the court system is not to be used by litigants willy nilly but rather requires litigants to concentrate their minds and agitate, in the one proceedings, all the arguments, they wish to agitate with respect to the other parties to the proceedings. That is quite normal, save that there may be various jurisdictional questions which may require proceedings to be commenced in different jurisdictions; but that is not an issue before me.

108 Although the proceedings were dismissed for want of prosecution, the proceedings could have been just as easily dismissed as incompetent; alternatively, as an abuse of process; alternatively, as vexatious.

109 There are two other observations I would seek to make. Firstly, there was a real issue raised regarding security for costs, based on the admitted impecuniosity of the remaining Applicants and, presumably, on their conduct in these proceedings to date. The Tribunal generally strains against the making of that type of order; but this may well have been the case where that rule of practice may have been broken had the matter been allowed to progress.

110 One must also remember the rights of the Respondents and the obvious fact that they are incurring not inconsiderable costs themselves; coupled with the not unreasonable conclusion, derived from the Applicants’ own pleadings, that the material on which they sought to rely was material already filed in previous proceedings, or which (whether or not filed) was available to them in these proceedings; such that all the Applicant was doing was going over old ground and/or seeking to agitate arguments that should have been agitated in those previous proceedings.

111 Secondly, in my respectful opinion, the conduct of the Applicants, and Mr Satchi in particular, was in breach of the usual and proper conduct and standards this Tribunal is entitled to expect from those who seek its relief. And, although its procedures may not be governed by the Civil Procedure Act 2005, the dictates of that Act are certainly, at least, an appropriate guide to the conduct of parties before this Tribunal, particularly in this Division – I refer, in particular, to ss.56(1), (2) and (3), 57, 58, 59 and 61, and the consequences described in s.61(3).

Orders

1. Proceedings are dismissed for want of prosecution.

2. Applicants to pay costs of the Respondents as agreed or assessed.

CITATION:	Satchi & Satchi Australia Pty Ltd v Zeaiter Corporate Holdings Pty Ltd (No 2) [2010] NSWADT 316
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Satchi & Satchi Australia Pty Ltd Hemalatha Sothy Ranjini Satchithananantham RESPONDENT Zeaiter Corporate Holdings Pty Ltd Anthony Zeaiter
FILE NUMBER:	085133
HEARING DATES:	23 September 2010
SUBMISSIONS CLOSED:	23 September 2010
EXTEMPORE DECISION DATE:	23 September 2010
BEFORE:	Molloy G - Judicial Member
CATCHWORDS:	Dismissal for Want of Prosecution
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Civil Proceedure Act 2005 Retail Leases Act 1994
CASES CITED:	Miller & Associates Insurance Broking Pty Limited v BMW Australia Finance Limited NSW Bar Association v. Jones [2008] NSWADT 253 O’Neill v Henry (RLD)[2010]NSWADTAP40 Satchi & Satchi Australia Pty Limited v Zeaiter Corporate Holdings [2009] NSWADT 237 Satchitanantham v Zeaiter Corporate Holdings Pty Limited (RLD)[2010]NSWADTAP30
REPRESENTATION:	APPLICANT T Satchithanantham, agent RESPONDENT S Rolfe, solicitor
ORDERS:	1. Proceedings are dismissed for want of prosecution 2. Applicants to pay costs of the Respondents as agreed or assessed.