Vale v Rosychamp Pty Ltd

[2006] NSWSC 1341

CITATION:	Vale v Rosychamp Pty Ltd [2006] NSWSC 1341
HEARING DATE(S):	11/09/06
JURISDICTION:	Equity Division Duty List
JUDGMENT OF:	Brereton J
EX TEMPORE JUDGMENT DATE:	09/11/2006
DECISION:	Summons dismissed with costs
CATCHWORDS:	COSTS – Interlocutory application brought in respect of retail lease proceedings in ADT – application wholly unsuccessful – whether costs question should be determined by court or remitted to ADT
PARTIES:	David Vale (P1) Woodfire Pizza Co Pty Ltd ACN 061 445 010 (P2) Rosychamp Pty Ltd ACN 069 714 450 (D)
FILE NUMBER(S):	SC 4743/06
COUNSEL:	Mr R Newell (P) Ms D Hogan-Doran (D)
SOLICITORS:	Leonard Legal (P) Bernard Chiu (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST

BRERETON J

Monday 11 September 2006

4743/06 David Vale v Rosychamp Pty Limited

JUDGMENT (Ex tempore)

1 HIS HONOUR: On 8 September 2006 the plaintiff David Vale, approached the duty judge with a summons seeking an order that the defendant, Rosychamp Pty Limited, not take any steps to disturb Mr Vale’s possession of (unspecified) premises until further order, and a further order that the summons be remitted to the Administrative Decisions Tribunal (“the ADT").

2 The plaintiff is apparently the applicant in proceedings in the ADT, in which they sought relief against forfeiture and damages for unconscionable conduct against the defendant, which is the respondent in the ADT. The evidence before me is, to say the least, sparse, and I can act only on assertions which have been made from the bar table. However, as I understand it, the application for relief against forfeiture, at least on an interim basis, was refused by the ADT, and the application to this Court was brought pending the hearing and determination of an application for leave to appeal from that decision to the Appeals Panel of the ADT.

3 When the matter came before the duty judge on 8 September, Palmer J refused to make the orders sought, although noting a limited undertaking proffered on the part of the defendant, and the matter was stood over to the duty judge list today.

4 When the matter came before me this morning, I was informed that the application in the ADT was to be heard before the President of the ADT later in the day. The plaintiff sought simply that I remit the matter to the ADT. The defendant submitted that this might prejudice its position in respect of costs, since a costs order could be made by the ADT only if special circumstances were shown, whereas in this Court they would ordinarily follow the event quite apart from special circumstances.

5 The matter was stood in the list while the proceedings in the ADT took place. I am now informed that leave to appeal has been refused, so that the plaintiff will not be granted relief against forfeiture, at least on an interim basis. There is, therefore, no further utility in the proceedings in this Court, which can be said to have been totally unsuccessful.

6 I can see no utility in remitting these proceedings to the ADT, because there is nothing further to be done in them save the question as to costs. Because the proceedings were instituted in this Court, to my mind it is appropriate that the rules of this Court and not those of the ADT apply in respect of costs. Although the plaintiffs have proffered an undertaking that they will consent to the ADT dealing with the question of costs as if it had all the powers of this Court and unconstrained by the requirement to establish special circumstances, I am unconvinced that that is a course reasonably open, because parties cannot by consent confer on a tribunal jurisdiction to make orders which it does not have under its statute, nor dispense with preconditions to the exercise of that jurisdiction.

7 Because the proceedings in this Court have been wholly unsuccessful, it seems to me that the appropriate order is that the plaintiff pay the defendant's costs.

8 I order that the summons be dismissed with costs.

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