Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management Pty Ltd (ACN 114 689 146)
[2011] NSWADT 143
•06 April 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management Pty Ltd (ACN 114 689 146) [2011] NSWADT 143 Hearing dates: 21, 22 March 2011 Decision date: 06 April 2011 Jurisdiction: Retail Leases Division Before: D Patten, Deputy President Decision: 1. Applicant to pay respondents' costs assessed at $9570.00.
2. Proceedings stayed until costs paid or further order of the Tribunal.
Catchwords: Costs - Failure to prepare for hearing - Stay pending payment Category: Costs Parties: Valentino Franchise Pty Ltd (ACN 114 469 662) (Applicant)
Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) (First Respondent)
AWPF Management Pty Ltd (ACN 114 689 146) (Second Respondent)Representation: Counsel
A Cheshire (Respondents)
Mr Phillip Kelly & Mr Craig Kelly (Agents for Applicant)
Minter Ellison (Respondents)
File Number(s): 085095
REasons for decision
RETAIL LEASES DIVISION (D PATTEN (DEPUTY PRESIDENT)): This matter was fixed for a four day hearing commencing on 21 March 2011. On 24 February the respondents served further evidence outside the time limited by previous directions of the Tribunal. Obviously if the evidence were objected to the Tribunal would need to exercise a discretion as to whether it could be relied upon and if appropriate give the applicant the opportunity to overcome any prejudice.
By email sent to the Tribunal on 14 March the applicant foreshadowed an application to vacate the hearing date. These matters came to my notice in the week prior to 21 March and I asked the Registrar to notify the parties that I would deal with the matter on the first day of the hearing.
When the matter was called on for hearing on 21 March, Mr Phillip Kelly appeared by leave as agent for the applicant. Previously on most occasions when the matter was before the Tribunal, a Mr Craig Kelly appeared as the applicant's agent.
Mr Phillip Kelly professed to have very little knowledge of the matter and could provide no useful assistance. Having regard to the nature of the fresh evidence sought to be relied upon by the respondents there seemed to me no reason to vacate the hearing date. Rather the matter could be dealt with at the appropriate stage of the proceedings, the new evidence going only to damages, and if necessary, the case could be then adjourned. The applicant's case on liability seemed likely to occupy most if not all the allotted hearing time.
However obviously the matter could not proceed on 21 March. In that circumstance I directed that it stand over until the next day for hearing.
On 22 March, Mr Phillip Kelly again appeared for the applicant. Mr Cheshire of counsel appeared for the respondents as he had done the day previously. He was ready to proceed. Mr Kelly was not and so far as I could tell had done nothing to advance the matter in the previous 24 hours. In the interests of justice I decided that a further adjournment was required but that the applicant should be penalised as to costs, the respondents in accordance with my order of the previous day having prepared themselves for a hearing.
As the respondents had been willing to consent to an adjournment on 21 March, I made no order in respect of their costs for that day but I did order that the applicant pay the respondents' costs of 22 March. They were quantified at $9570 and in the circumstances I considered that the costs should be paid before the matter was finalised. Accordingly I ordered that the applicant pay the respondents' costs of $9570 on or before 12 April 2011. I stood the matter over for further directions on 6 April.
On 6 April Mr Craig Kelly appeared for the applicant. He told me that its solicitors were considering an appeal against the costs order. In light of that information I ordered that the proceedings be stayed until the costs were paid or further order of the Tribunal.
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I hereby certify that this is a true and accurate record of the reasons for decision of the Administrative Decisions Tribunal.
Registrar/Associate
Decision last updated: 16 June 2011
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