Stringer v Glennan (No 2)

[2005] NSWADT 40

CITATION:	Stringer v Glennan & Anor (No 2) [2005] NSWADT 40
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Joyce Yongxin Stringer RESPONDENTS Michael Bruce Glennan & Muriel Heather Glennan
FILE NUMBER:	045126
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/14/2004
DATE OF DECISION:	02/24/2005
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997
CASES CITED:	Sotiropoulos v Mattana Coiffure Pty Ltd (No. 2) [2004] NSWADT AP43 Wood & Anor v Bergman (No. 2) [2003] NSWADT 175
REPRESENTATION:	APPLICANT D Nelmes, solicitor RESPONDENTS In person
ORDERS:	Parties are to bear their own costs of the proceedings

REASONS FOR DECISION

1 In my decision made on 24 January 2005, I made a declaratory order that the Respondents were not entitled to withhold consent to assignment of lease of the subject premises to Judy Baxter, who had been proposed by the Applicant as an assignee. I also ordered that the lease of the premises was assigned to Judy Baxter as lessee, and I gave liberty to either party to file and serve written submissions in relation to costs within 21 days, and in the absence of such submissions there would be no order as to costs.

2 In the course of my decision I determined that the effect of s39 of the Retail Leases Act 1994 was that a lessee such as the Applicant had a positive entitlement to assign a lease subject to the limited grounds for refusal by the lessor which are set out in that section and that the Respondents accordingly bore the onus of showing that Judy Baxter had financial resources inferior to those of the Applicant in order to be entitled to refuse to assign the lease. Having considered the evidence, I held that the Respondents had failed to discharge this onus.

3 The Applicant's solicitor has filed and served submissions as to costs. Although the submissions do not specifically state that this Tribunal should order that the Respondents pay the Applicant's costs, it is apparent that they are directed to that result.

4 In summary, the Applicants submit that the special circumstances justifying an order for costs in her favour are as follows:-

a) The Respondents asserted rights which went well beyond those available to them under the lease or under the Retail Leases Act 1994 .

b) The Respondents relied upon consideration of extraneous material in refusing consent to assignment of lease.

c) The Respondents declined to indicate what further information was required to be supplied by the Applicant to assist them with the decision as to assignment.

d) The Respondents had clear misapprehensions as to their rights and obligations.

e) The hearing was unduly prolonged by the failure of the Respondents to compile and file material in accordance with directions, and in an admissible form.

f) The matter involved a very small business, and the requirements of the Respondents went beyond what was reasonably required having regard to the term of the lease and the amounts involved.

5 Section 88 of the Administrative Decisions Tribunal Act 1997 permits this Tribunal to award costs but only if it is satisfied that there are special circumstances warranting an award of costs. Unlike other jurisdictions, costs do not usually follow the event, but rather can only be ordered due to circumstances which are out of the ordinary and which justify an order for costs. There is no exhaustive list of such circumstances but guidance can be obtained from perusal of this Tribunal's Practice Note 12 dated 4 March 2003, and the principles governing the award of costs set out in the decisions of the Appeal Panel in Sotiropoulos v Mattana Coiffure Pty Ltd (No. 2) [2004] NSWADT AP43 and in Wood & Anor v Bergman (No. 2) [2003] NSWADT 175.

6 I do not consider that any of the matters set out by the Applicant in its submissions constitute special circumstances. In my determination it was unclear whether the Applicant or her proposed assignee had superior financial resources, but as the Respondents bore the onus of establishing inferiority of financial resources on the part of the proposed assignee, this uncertainty operated in favour of the Applicant. The Respondents' position in this matter did have a tenable basis in fact and law. The mere fact that the refusal of the Respondents to consent to an assignment of lease arose from a misapprehension on their part as to rights and liabilities, does not constitute special circumstances justifying an award of costs against them. Furthermore, although the material presented by the Respondents may not have been in a strictly admissible form according to the rules of evidence, a significant proportion of that material was relevant and probative. Certainly, the hearing of this matter was not unduly prolonged by reason of any failure on the part of the Respondents in the timing or manner of their presentation of evidence. The fact that this dispute involved a comparatively small business and a limited remainder term of lease is not a special circumstance warranting a costs order. If anything, it would tend to mitigate against any such order.

7 For the reasons above I order that each party bear its own costs of the proceedings.