Veljanovski v Tortorella Pty Ltd; Tortorella Pty Ltd v Veljanovski

[2019] NSWCATCD 88

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation:

Veljanovski v Tortorella Pty Ltd; Tortorella Pty Ltd v Veljanovski [2019] NSWCATCD 88

Hearing dates:

Written submissions 21 June 2019; 5 July 2019.

Date of orders:

5 August 2019

Decision date:

05 August 2019

Jurisdiction:

Consumer and Commercial Division

Before:

L Wilson, Senior Member

Decision:

1. The Tribunal makes an order dispensing with a hearing as to costs, pursuant to s.50 of the Civil and Administrative Tribunal Act 2013.

2. Mr Veljanovski pay Tortorella Pty Ltd’s legal costs as agreed to assessed, within 14 days of the agreement or assessment, pursuant to s.60 of the Civil and Administrative Tribunal Act 2013.

Catchwords:

COSTS – Gross sum – Indemnity costs – Mediation not a Calderbank offer

Legislation Cited:

Civil and Administrative Tribunal Act 2013 (NSW)

Civil and Administrative Tribunal Rules 2014 (NSW)

Cases Cited:

Dey v Victorian Railways Commissioners (1949) 78 CLR 62

General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125

Megerditchian v Kurmond Homes Pty Ltd [2014] NSWCATAP 120

Paraskevopoulos v Bajic (No. 2) [2018] NSWCATCD 40

Zucker v Burbank Montague Pty Ltd [2018] NSWCATAP 135

Texts Cited:

Nil

Category:

Costs

Parties:

In COM19/08307:
Sasha Veljanovski (Applicant)
Tortorella Pty Ltd (Respondent)

In COM18/53438:
Tortorella Pty Ltd (Applicant)
Sasha Veljanovski (Respondent)

Representation:

Solicitors:
CVC Law (Tortorella Pty Ltd)
Robert Webley & Associates (Veljanovski)

File Number(s):

COM19/08307 and COM18/53438

Publication restriction:

Nil

REASONS FOR DECISION

1. Sasha Veljanovski had been the sublessor to Tortorella Pty Ltd (sublessee) in a retail lease. After the sublessee vacated the retail premises, the sublessor would not return to the sublessee the rent it had paid in advance, namely $17,636.67. A dispute about this ensued leading to the sublessee requesting a mediation with the sublessor, under Part 8 of the Retail Leases Act 1994. The sublessor refused the Registrar if Retail Tenancy Disputes offer of mediation.

2. Therefore, on 13 December 2018 lodged an application in the Tribunal to recover his rent paid in advance and for $8,500 for the costs of undertaking repairs and restoration which the sublessee claimed he was not obliged to undertake.

3. On 22 January 2019 the sublessee’s claim had its first directions hearing, at which time, directions were made for the sublessor to lodge his cross claim against the sublessee.

4. On 18 February 2019 the sublessor lodged his cross claim in which he sought more than $30,000 damages from the sublessee.

5. On 7 June 2019 the Tribunal heard and determined both claims together. Neither party was completely successful; the sublessor’s claim was dismissed in its entirety and the sublessee’s claim for $8,500 was dismissed but the sublessor was directed to repay to it the rent in advance, which constituted the bulk of the relief claimed by the sublessee.

6. Thereafter the Tribunal offered the sublessee an opportunity to make an application for costs, followed by an opportunity for the sublessor to respond to such an application. Both parties filed submissions and evidence in accordance with those directions.

Order dispensing with…