Uckan v A & J Verdi Pty Ltd (No 2)

[2010] NSWADT 256

CITATION:	Uckan v A & J Verdi Pty Ltd (No 2) [2010] NSWADT 256
DIVISION:	General Division
PARTIES:	APPLICANT Metin and Cetin Uckan RESPONDENT A & J Verdi Pty Alexander Verdi Julieanne Verdi
FILE NUMBER:	105113
HEARING DATES:	30 August 2010
SUBMISSIONS CLOSED:	8 October 2010
DATE OF DECISION:	27 October 2010
BEFORE:	Rickards K - Judicial Member
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997
REPRESENTATION:	APPLICANT G Rich, barrister RESPONDENT D Robertson, barrister
ORDERS:	1. Each party is to bear its own costs related to the hearing on 30 August 2010.

REASONS FOR DECISION

1 An interim decision was made in these proceedings on 10 September 2010 in relation to two defined issues. An order was also made that there would be no order as to costs unless either party filed and served submissions as to costs. The proceedings were then listed for further directions before the Registrar.

2 Other orders were also made at the end of the hearing on 30 August 2010 that the Respondents were to pay monthly rent of $5,364.93 on or before 7 September 2010 and thereafter to make further monthly payments of rent in that sum payable on the first day of each month, subject to any further orders of the Tribunal.

3 Submissions in relation to costs were apparently filed by the Applicants on 22 December 2010 and later served upon the Respondents. The Respondents objected to reliance by the Applicants upon such submissions because they were not served within 14 days of the decision as set out within the orders made on 10 September 2010. Alternatively, the Respondents sought an extension of time to file submissions in reply, and those submissions were then filed by the Respondents on 8 October 2010. In the circumstances, each party has had a fair opportunity to make submissions as to costs, and those submissions have accordingly been considered in relation to this decision as to costs.

4 Section 88 of the Administrative Decisions Tribunal Act 1997 provides that parties to the proceedings are to bear their own costs unless the Tribunal is satisfied that it is fair to make a costs order in favour of one party. The section sets out a number of criteria which may be taken into account in considering whether it is fair to make a costs order. The factors include consideration of whether a party has conducted the proceedings in a way which necessarily disadvantaged another party, whether a party has been responsible for unreasonably prolonging the time taken to complete the proceedings, the relevant strengths of the claims made by each of the parties, the nature and complexity of the proceedings. The section also permits the Tribunal to consider any other matter which it considers relevant. Within this final broad category, it is well-established that the Tribunal may take into account such factors as the conduct of a party outside of the proceedings including behaviour which may have forced another party into commencement of proceedings, failure to accept a reasonable offer, or failure to participate in mediation.

5 The subject hearing was conducted in a time effective manner, based largely upon written material which had been filed and served in accordance with directions. Ultimately, in relation to the two principal issues which were to be decided, each party succeeded upon one issue. The losing arguments in respect of each issue were not intrinsically weak or lacking in merit.

6 The provisions of section 88 override any provisions of the Lease purporting to require the lessee to pay the lessor’s costs in connection with this application.

7 There are no features of these proceedings which fall within the exceptions set out within section 88(1A); accordingly, each party should bear their own costs relating to the hearing on 30 August 2010.

8 Each party is to bear its own costs related to the hearing on 30 August 2010.