Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) (RLD)
[2011] NSWADTAP 29
•09 June 2011
Administrative Decisions Tribunal
New South Wales
Medium Neutral Citation: Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (No 2) (RLD) [2011] NSWADTAP 29 Hearing dates: On the papers Decision date: 09 June 2011 Jurisdiction: Appeal Panel - Internal Before: Appeal Panel comprised of:
M Chesterman, Deputy President
R Fox, Judicial Member
B Weule, Non-judicial MemberDecision: 1. The appeal is allowed.
2. The Tribunal's order relating to costs in its decision of 25 October 2010 is set aside and the following order is substituted: 'Each party is to bear its own costs of all of the proceedings in the Retail Leases Division and of the appeal heard by the Appeal Panel on 12 May 2008'.
3. No order as to the costs of this appeal.
Catchwords: Costs - retail lease - admissibility of offer of compromise made during mediation Legislation Cited: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Evidence Act 1995
Retail Leases Act 1994Cases Cited: ACN 079 830 595 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) v Wallis Lake Fisherman's Co-operative Ltd [2007] NSWADT 297
ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd (No 2) [2010] NSWADT 253
Al Mousawy v J A Byatt Pty Ltd [2008] NSWSC 264
Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150
Alessa Pty Ltd v Total and Universal Pty Ltd [2002] NSWADTAP 16
Azzi and Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375
Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427
Coopes Pty Limited v Claitrack Pty Limited (No 2) [2007] NSWADT 255
D.B. Rreef Funds Management Ltd & P.T. Ltd v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management) [2008] NSWADT 332
Fares & ors v Bleakley & anor [2006] NSWADT 53
Gain & Anor v Commonwealth Bank of Australia & Anor (1997) 42 NSWLR 252
Perrin v Hungay Pty Ltd (No 2) [2005] NSWADT 290
Rajski v Tectran Corporation Pty Limited [2003] NSWSC 476
Skiwing Pty Ltd v Trust Company of Australia (trading as Stockland Property Management) [2006] NSWCA 276
Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185
Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) (RLD) [2008] NSWADTAP 34Category: Costs Parties: Wallis Lake Fisherman's Co-operative Ltd (Appellant)
ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips (Respondent)Representation: R Colquhoun (Appellant)
G Hoeben (Respondent)
Stacks/Forster (Appellant)
Paton Hooke Lawyers (Respondent)
File Number(s): 109061 Decision under appeal
- Citation:
- ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd (No 2) [2010] NSWADT 253
- Before:
- Retail Leases Division
- File Number(s):
- 085205
Reasons for Decision
Introduction
APPEAL PANEL (M CHESTERMAN (DEPUTY PRESIDENT), R FOX (JUDICIAL MEMBER), B WEULE (NON-JUDICIAL MEMBER)): This is an appeal by the Respondent in the first instance proceedings, Wallis Lake Fisherman's Co-operative Ltd (hereafter 'Wallis Lake') against an order of the Tribunal, made in the Retail Leases Division, that it should pay the costs of the Applicant, ACN 079 830 595 Pty Ltd, trading as Jolly Joe's Fish 'n' Chips (hereafter 'Jolly Joe's') in proceedings between them that had taken place in the Tribunal.
This order was one of two orders made in a decision delivered on 25 October 2010 ( ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd (No 2) [2010] NSWADT 253 - hereafter 'the costs decision'). There was no appeal against the other order of the Tribunal, which was for the payment of interest on a sum previously awarded to Jolly Joe's by way of damages.
Background
These proceedings have been lengthy and tortuous. They arose out of an agreement, which was held by the Tribunal to be a retail shop lease under the Retail Leases Act 1994 ('the RL Act'), whereby Jolly Joe's occupied premises owned by Wallis Lake for the purposes of a takeaway fish and chip shop. Jolly Joe's took possession of the premises pursuant to this agreement in mid-April 2000. Its director, Mr Kerry ('Joe') Morris, believed that it was entitled to remain in the premises until 13 April 2009. Mr Morris and his wife were the only two shareholders in Jolly Joe's, which was a 'two-dollar company'.
The following summary of what occurred subsequently, contained in the decision to which this appeal relates at [4 - 9], is broadly sufficient for present purposes. In this summary, 'the applicant' is Jolly Joe's or Mr Morris, and 'the respondent' is Wallis Lake:-
4... The applicant was ejected from his business premises on 1August 2006. He filed an application for urgent interim relief with the Tribunal on 7 August 2006. Mediation occurred (unsuccessful) on 18 November 2006, and the Tribunal heard the matter over three days in the first half of 2007.
5 On 14 December 2007 the Tribunal handed down a decision that favoured the applicant. The respondent was ordered to pay the applicant $249,561.00 for its retail tenancy claim, and $6,000.00 for the unconscionable conduct claim.
6 The respondent made an application (out of time) to the Administrative Decisions Tribunal's Appeal Panel which was heard on 12 May 2008.
7 On or about 5 June 2008 the Appeal Panel made a decision which dismissed the appeal and refused leave to extend the appeal to a review of the merits of the decision. Directions were made for the provision of submissions as to costs, but it appears that submissions were not received because the respondent appealed the matter to the Supreme Court.
8 On 5 September 2008 the Supreme Court heard the appeal with the result that the appeal was allowed, and the orders of both the Appeal Panel and the President of the ADT were set aside. The defendant was ordered to pay the costs of the appeal, and the proceedings were remitted to the Tribunal for determination according to law.
9 The matter came before the currently constituted Tribunal on 30 March 2009, and the ultimate orders made by the Tribunal were that the respondent pay to the applicant the sum of $36,778.00 in damages, $5,781.10 being the loss of sales and equipment costs, and $6,000.00 damages for unconscionable conduct. The only question before the current Tribunal was the assessment of damages. In total the respondent was ordered to pay the sum of $48,559.00 which was exclusive of interest and costs.
It would appear from the evidence that the unsuccessful mediation referred to paragraph [4] of this summary was in fact held on 19 December 2006, not 18 November 2006. But although the mediation is a significant event in the present context, not much turns on the precise date of its occurrence.
The ground on which the Supreme Court allowed the appeal by Wallis Lake against the decision of the Appeal Panel was that both the Retail Leases Division of the Tribunal, in the first substantive decision ( ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd [2007] NSWADT 297), and the Appeal Panel ( Wallis Lake Fisherman's Co-operative Ltd v ACN 079 830 595 Pty Ltd (trading as Jolly Joe's Fish 'n' Chips) (RLD) [2008] NSWADTAP 34) had adopted an incorrect approach to the assessment of the damages to be awarded to Jolly Joe's. They had treated the financial loss sustained by Jolly Joe's as equivalent to that sustained by Mr Morris.
The Tribunal's decision following the rehearing on damages in the Retail Leases Division - i.e. the decision making 'the ultimate orders' - was delivered on 1 February 2010 ( ACN 079 830 595 Pty Ltd v Wallis Lake Fisherman's Co-operative Ltd [2010] NSWADT 30). As stated above, the Tribunal ordered Wallis Lake to pay to Jolly Joe's the sum of $48,559.00, exclusive of interest and costs.
In Order 4 of that decision, the Tribunal also directed as follows:
The Tribunal will take written submissions from the parties on the question of interest and costs. Any submissions should be filed and served within 28 days of the date hereof.
Following a request by Jolly Joe's for an extension of the time for compliance with this direction, it filed and served its submissions, together with an affidavit by its solicitor, Mr James Paton, on 23 March 2010. These submissions incorporated an application for costs of the proceedings in the Tribunal and for interest on those costs.
On 24 March 2010, Wallis Lake filed and served its submissions. It stated that it had not been proposing to seek costs, but that having been given to believe that Jolly Joe's was 'seeking some form of order for costs', its submission was that any costs order made should be in its favour.
The costs decision
The costs decision was made 'on the papers', pursuant to section 76 of the Administrative Decisions Act 1997 ('the ADT Act').
At paragraph [10] of this decision, the Tribunal stated:-
The Supreme Court costs were the subject of an order by the Supreme Court, and do not require consideration by this Tribunal. Accordingly, this decision pertains to the costs of the parties before the Tribunal.
At [11 - 13], the Tribunal pointed out that, as was agreed by the parties, the question of costs fell to be determined under section 88 of the ADT Act in the form that it has taken since amending legislation which commenced on 1 January 2009. It also drew attention to Tribunal decisions to the effect that the amendments have made costs orders more readily obtainable in the Retail Leases Division.
Section 88 is applicable by virtue of section 77A of the RL Act. So far as is relevant here, it states:-
Costs
(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:
(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:
(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or...
(iii) asking for an adjournment...
(iv) causing an adjournment, or...
(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(d) the nature and complexity of the proceedings,
(e) any other matter that the Tribunal considers relevant.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(3)...
(4) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
At paragraphs [14 - 19], the Tribunal summarised the principal arguments put by the parties in their written submissions on costs. In essence, they were as follows.
Jolly Joe's claimed in its submissions that Wallis Lake had engaged in the following conduct: (a) from the date of the eviction of Jolly Joe's on 1 August 2006 to the conclusion of the proceedings, it had 'pursued a course of "bullying and coercive behaviour" which was "premeditated" and "carefully orchestrated to make life as difficult for [Mr Morris] as possible"'; (b) it had caused adjournments of directions hearings and made a lengthy application for adjournment of the first substantive hearing (i.e., the hearing during the first half of 2007); and (c) it had failed to 'engage in any meaningful way in settlement discussions', but instead had rejected a reasonable offer made by Jolly Joe's and itself made offers which were not reasonable. Jolly Joe's maintained that on account of this conduct the costs that it had incurred were 'out of proportion to the final result' of the proceedings.
Wallis Lake claimed as follows: (a) Jolly Joe's had been late in serving its financial records prior to the first substantive hearing; (b) because those records related to the losses suffered by Mr and Mrs Morris, not by Jolly Joe's, they were irrelevant; and (c) the rehearing on the question of damages was necessary because of the way in which Jolly Joe's, not Wallis Lake, had presented and pressed its case.
At [20 - 24], the Tribunal, referring to paragraphs (a), (b) and (c) within subsection 88(1A) of the ADT Act, held that most of these matters put forward by the parties as grounds for a costs order did not establish that the criterion of 'fairness' required by this subsection had been satisfied. Describing each of these three paragraphs as a 'subsection', it stated:-
20 Turning to the terms of s.88 itself, subsection (a) entitles the Tribunal to consider whether either party has conducted itself in a manner which has unnecessarily disadvantaged another party. A review of the history of the matter leads to the conclusion that both parties have been responsible for some delay in the matter reaching a conclusion. The applicant was slow in providing its financial evidence and the respondent caused a number of directions hearings to be adjourned. The fact that a matter was the subject of an appeal and that some evidence was rejected as irrelevant are matters which arise in the ordinary course of litigation and do not, without more, amount to conduct which unnecessarily disadvantages a party and I am not persuaded that they are matters which invoke the subsection.
21 The next subsection relates to whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings. The hearing before the first Tribunal took three days - 2 and 3 April 2007 and 21 June 2007. The applicant's director Mr Morris was cross examined extensively, principally on his financial records. Whilst this cross examination was protracted, I am not satisfied that it was unnecessary or prolix, particularly since the quantum of damages was a critical part of the applicant's case.
22 It might be said that both parties were responsible for some delay- the applicant in filing and serving its evidence and the respondent in conducting the hearing but I am not persuaded that the conduct of either was such that it could be said that they were responsible for unreasonably prolonging the case.
23 The fact that the respondent lodged an appeal to the Appeal Panel and then to the Supreme Court does not, of itself, attract the operation of the subsection, particularly in circumstances where the second appeal was successful.
24 The third subsection relates to the relative strengths of the claims made by each of the parties. The respondent says that the applicant was largely unsuccessful, pointing to the difference between the damages claimed and the damages awarded. I do not agree with this approach. The applicant was successful in its claim for damages and was successful in proving unconscionable conduct. The fact that the quantum of damages was reduced on appeal does not derogate from the original findings on liability. Both parties had arguable cases and both advanced them robustly but not unreasonably.
Having briefly referred in paragraph [25] to the contents of paragraphs (d) and (e) of subsection 88(1A), the Tribunal explained at [26 - 29] why in its opinion the rejection by Wallis Lake of what it described as a 'realistic and reasonable' offer by Jolly Joe's to settle the proceedings constituted good grounds for a costs order against Wallis Lake. It stated:-
26 The Tribunal observes that in 2006, at mediation, the applicant made an offer to settle the proceedings which was realistic and reasonable at a time when the costs of both parties would have been at their least.
27 The applicant was successful in its retail tenancy and unconscionable conduct claim. The applicant lost what had been a profitable business which had operated for a number of years.
28 The respondent was successful on appeal only in respect to damages and the damages which were ordered as a result of the rehearing were within $2000.00 of the amount for which the applicant offered to settle the proceedings in 2006.
29 In all of the circumstances, the Tribunal considers that it is fair to award the applicant its costs in the proceedings, on the ordinary basis (that is, party-party).
The Tribunal then held, at [30 - 32], that Jolly Joe's should be paid interest on the principal sum of $48,559.00 that had been awarded to it as damages, but not on its award of costs.
The orders made by the Tribunal in the costs decision were in the following terms:-
Respondent to pay the Applicant's costs.
Respondent to pay interest on the sum of $48,559.00 from 14 December 2007 until 10 March 2010.
The appeal proceedings
On 11 November 2010, Stacks/Forster, the solicitors for Wallis Lake, wrote to the Registrar asking for 'clarification' of the Tribunal's costs order or, if appropriate, for the proceedings to be relisted for clarification. The letter expressed the opinion that the costs referred to in the order were limited to the costs of the Tribunal hearing following the appeal to the Supreme Court, and set out arguments in support of this interpretation.
On 12 November 2010, Wallis Lake filed a Notice of Appeal.
In a letter dated 15 November 2010 to Stacks/Forster (of which a copy was sent to Mr Morris), the Registrar indicated that since Wallis Lake had filed a Notice of Appeal in which this question of 'clarification' was one of the issues raised, it would not be appropriate to relist the case before the Tribunal at first instance.
On 9 December 2010, Jolly Joe's filed a Notice of Reply to Appeal.
Pursuant to directions given by the Appeal Panel, Wallis Lake's primary submissions in the appeal, prepared by Mr Colquhoun of counsel, were filed on 30 December 2010 and those of Jolly Joe's on 14 February 2011. The latter submissions were prepared by Ms Hoeben of counsel. Although no direction to do so had been given and no leave had been granted, Wallis Lake filed further submissions on 9 March 2011.
A hearing of the appeal scheduled before us on 11 March 2011 was vacated because due to an administrative error Jolly Joe's solicitors, Paton Hooke Lawyers ('Paton Hooke'), had not been notified of the date and there was therefore no appearance by or on behalf of Jolly Joe's.
The Registry fixed a later date, 10 June 2011, for the hearing. But in a letter dated 7 April 2011 Paton Hooke advised the Registry that Jolly Joe's counsel was no longer in a position to appear in the matter, that Mr Morris would be representing Jolly Joe's and that Mr Morris would not be available on the scheduled date.
At a directions hearing then set down for 20 April 2011 in order to determine the future progress of the appeal, the Appeal Panel, constituted by its Presiding Member, directed that it should not proceed to a hearing, but should be decided 'on the papers' under section 76 of the ADT Act.
The Panel's reasons for so directing included the following: (a) that Jolly Joe's, in its primary submissions and in Paton Hooke's letter of 7 April 2011, had argued that a hearing was unnecessary and would cause further expense to the parties; (b) that at any such hearing Jolly Joe's would not be legally represented; and (c) that any disadvantage caused to either party by this change of procedure could be remedied by providing a further opportunity for submissions to be filed.
The Appeal Panel accordingly directed that any supplementary submissions by Wallis Lake should be filed and served within 21 days and any submissions in reply by Jolly Joe's within a further 14 days.
The Panel also notified the parties at this directions hearing that it would welcome further assistance in the supplementary submissions on two specific questions that had already been raised in the appeal. These were (a) whether the Tribunal's costs order was limited (as Stacks/Forster had argued in their letter of 11 November 2010 to the Registrar) to the costs of the Tribunal hearing following the appeal to the Supreme Court or embraced also the costs of the Tribunal's first instance and appellate hearings preceding this appeal; and (b) whether it had been appropriate for the Tribunal, in deciding at paragraphs [26 - 29] of its reasons to make a costs order against Wallis Lake, to take account of an offer of settlement that Jolly Joe's had made during mediation proceedings.
Wallis Lake's supplementary submissions in the appeal were filed on 10 May 2011 and those of Jolly Joe's, prepared by Paton Hooke, were filed on 25 May 2011.
In explaining our decision in this appeal, it is convenient to deal in turn with what we view as the questions of principal importance, providing a summary of the parties' submissions followed by our conclusions and the supporting reasons. At the request of the parties, we have taken account of the written submissions on costs that were filed in the first instance proceedings, as well as the primary and supplementary submissions filed in the appeal itself.
The scope of the Tribunal's costs order
Wallis Lake's submissions did not directly address the question whether the Tribunal's costs order related to all the proceedings in the Tribunal, including the appeal against its first decision, or only to the costs of the rehearing on damages that followed the appeal to the Supreme Court.
Jolly Joe's argued that it would not 'make any sense' if the earlier hearings were ignored and that if this was intended it would have been made clear in the costs decision.
It is unfortunate that the scope of the costs order was not made clear. But we have no doubt that it was intended to cover all of the Tribunal proceedings and should be interpreted accordingly. This is evident from the range of matters that the Tribunal took into account in deciding what order it should make. At the instigation of both parties, they included alleged behaviour on both sides during the earlier stages, causing the proceedings to be unreasonably prolonged (see paragraphs [20 - 22] of the decision, quoted above) and, most importantly, the rejection by Wallis Lake of an offer of settlement made by Jolly Joe's before the first substantive hearing in the Tribunal (see paragraphs [25 - 29]). There is no reason why this rejection should be held to provide a basis for an order relating only to costs of the rehearing on damages that took place about 18 months later, but not to the costs of the proceedings that immediately followed the rejection.
Although, for reasons set out below, the outcome of this appeal is that there is to be no costs order in this case relating to any part of the various proceedings in the Tribunal, this ruling as to the scope of the costs order made by the Tribunal is important. It establishes that the question of the costs of all the Tribunal proceedings - including the first hearing at first instance and the ensuing appeal to the Appeal Panel - is res judicata by virtue of the Tribunal's costs decision and our decision in this appeal.
The admissibility of evidence of the settlement offer made during mediation
The terms of the offer and the circumstances in which it was made. As indicated in paragraphs [26 - 29] of the costs decision, the ground for the Tribunal's costs order in Jolly Joes' favour was Wallis Lake's rejection of a 'realistic and reasonable' offer by Jolly Joe's, made in December 2006, to settle the proceedings for $50,000.
Earlier in the costs decision, at [17], the Tribunal described as follows the parties' attempts to settle their dispute:-
It is noted that at least three offers to settle were made by the applicant and the respondent made two offers. With the exception of the first offer made by the applicant during mediation in 2006, in which it offered to accept the sum of $50,000.00 none of the offers of either party came within a reasonable range of the final result. It is not entirely clear whether that offer (of $50,000.00) was expressed to be inclusive or exclusive of costs, since it was made during mediation. The applicant's written submissions on costs assert it was exclusive of costs on page 4, but inclusive of costs on page 8. The Tribunal is prepared to accept that given that the offer was made in the very early stages of the litigation when costs were likely to have been relatively small, the sum of $50,000.00 was reasonable.
The mediation took place on 19 December 2006, in response to a direction given by the Tribunal on 17 August 2006 and repeated on 14 September and 26 October 2006. It was arranged by the Registrar of Retail Tenancy Disputes. The only reference in the evidence to Jolly Joe's offer to settle for $50,000 was in the affidavit of its solicitor, Mr Paton, sworn on 23 March 2010. He stated only that during the mediation, 'an offer was made by the applicant of $50,000.00 inclusive of costs together with taking over the lease, the BBQ plate, the display cabinet and the vats'. In Jolly Joe's submissions in this appeal filed on 16 February 2011, Ms Hoeben confirmed that the offer was inclusive of costs.
Neither the making nor the terms of the offer was denied by Wallis Lake.
The parties' submissions. In its submissions on the appeal, Wallis Lake maintained that the Tribunal should not have taken account of this offer because section 69 of the RL Act expressly prohibited the admission of any statement, including an offer of settlement, made in the course of mediation of a retail tenancy dispute.
Section 68 of this Act is the provision pursuant to which the Tribunal directed the parties to attempt to resolve their dispute through mediation arranged by the Registrar of Retail Tenancy Disputes. The terms of this section and of section 69 are as follows:-
68 Disputes and other matters must be submitted to mediation before proceedings can be taken
(1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter.
(2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter.
(3) This section does not apply to proceedings before a court for an order in the nature of an injunction.
(4) This section does not operate to affect the validity of any decision made by a court.
69 Statements made during mediation not admissible
Any statement or admission made in the course of the mediation of a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) pursuant to arrangements made by the Registrar under this Part is not admissible at a hearing of a claim under Division 3 or in any other legal proceeding.
Wallis Lake relied on the decision of the Tribunal in Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150. The relevant passage, at [15 - 16], is as follows:-
15 By way of reply on costs the Applicant filed further submissions together with an affidavit of the lawyer for the Applicant. The affidavit refers to certain advice said to have been given to the Applicant by the mediator within the Retail Tenancy Unit.
16 As to this, the proper practice of this Tribunal must be that the Tribunal must not have regard to what is said in any mediation session or by the Retail Tenancy Unit. I am of the view that this should also apply in the case of costs questions and accordingly I reject the availability of that evidence in this regard...
Citing certain Supreme Court decisions made under the Property Stock and Business Agents Act 2002 and the statute preceding it, Wallis Lake argued also that because disclosure of the settlement offer made during mediation amounted to a breach of the RL Act and was therefore 'illegal', this offer could not properly be the basis of a costs order.
In its primary submissions in the appeal, Jolly Joe's argued as follows:-
As to disclosure of settlement offers during the course of mediation, [Jolly Joe's] was required to comply with the order of the Tribunal made in March 2010 - that both parties make their submissions as to costs. As a general principle there is a notable exception to disclosure of offers of settlement during the process of mediation, most notably s 131(h) of the Evidence Act 1995 - where a party is bound to comply with an order of a court or tribunal.
In its supplementary submissions, it stated: 'The offer of itself does not impact on the evidence of the parties during the Court process [to] which we submit the confidentiality agreement relates.'
The relevant parts of section 131 of the Evidence Act 1995 state:-
131 Exclusion of evidence of settlement negotiations
(1) Evidence is not to be adduced of:
(a) a communication that is made between persons in dispute, or between one or more persons in dispute and a third party, in connection with an attempt to negotiate a settlement of the dispute, or
(b) a document (whether delivered or not) that has been prepared in connection with an attempt to negotiate a settlement of a dispute.
(2) Subsection (1) does not apply if:...
(h) the communication or document is relevant to determining liability for costs...
Discussion and conclusions. As the foregoing account implies, the impact of section 69 of the RL Act was not addressed in the parties' submissions on costs to the Tribunal. This may well be attributable to the procedure that the Tribunal adopted in obtaining those submissions (as to which, see [8] above). It did not provide any opportunity for either party to respond to the submissions advanced by the opposing party.
For this reason, the objection cannot be taken - and was not in fact taken - that Wallis Lake, in its submissions on costs to the Tribunal, should have put forward the argument that it now puts forward, based on section 69.
We have conducted our own investigation of decisions on this matter. We will refer first to five Tribunal decisions that were not mentioned in the parties' submissions. All but the last of these were decisions resolving questions of costs in proceedings under the RL Act.
In Alessa Pty Ltd v Total and Universal Pty Ltd [2002] NSWADTAP 16, an Appeal Panel upheld the Tribunal's decision at first instance on which Wallis Lake relied in its submissions (see [45] above). At [21], it made the following observation:-
21 It will be seen that s 69 renders inadmissible the evidence to which it refers in any 'claim' under the RLA or in 'any other legal proceeding'. Our view is that costs applications made subsequent to the resolution of the claim are covered, if not by the expression 'claim', then by the expression 'any other legal proceeding'.
In Perrin v Hungay Pty Ltd (No 2) [2005] NSWADT 290 at [3], the Tribunal said:-
3 The submissions filed on behalf of the Applicant refer to negotiations which occurred during the course of the mediation which was held between the parties, which is a compulsory precursor to the commencement of proceedings in this Tribunal. Pursuant to Section 69 of the Retail Leases Act 1994, any statement made in the course of mediation discussions is inadmissible, and I accordingly take no account of any material within the Applicant's submissions which refer to anything that occurred during the mediation process.
In Fares & ors v Bleakley & anor [2006] NSWADT 53, the Tribunal said at [38]:-
38 The Applicants in their submission take objection to the use of negotiations that the mediation "without prejudice" settlement discussions in support of the Respondents submissions. The Respondents submissions are not clear as to whether the negotiations they refer to were during the mediation, however I am inclined to the view that these negotiations took place after the mediation. Had they been during the mediation then, of course, Section 69 of the Retail Leases Act would prohibit any statement or admission being admissible at the hearing of the claim or in any subsequent proceedings.
In Coopes Pty Limited v Claitrack Pty Limited (No 2) [2007] NSWADT 255, the Tribunal, constituted by Judicial Member Fox (who is a member of the Panel in this appeal), said at [2 - 5]:-
2 Mr Lloyd made submissions on behalf of the Respondents - nothing was heard from the Applicant.
3 Mr Lloyd claimed the necessary special circumstances arising out of:-
a) The fact that the Applicant had not accepted an offer of settlement which was made either at or shortly after the failed mediation, and...
The Offer of Settlement
4 Although this Tribunal has in at least one instance ( Cronulla Newsagency Pty Limited v Pizzata & Ors [2002] NSWADT 212) ventured some way into the result of a failed mediation, I think that is a step to be taken with great diffidence, especially in view of the clear words of s 69 of the Retail Leases Act [the Tribunal quoted here the terms of section 69]...
5 If parties wish to use the fact of failure of the mediation to support a cost application, then I think the proper method is to openly record an offer of settlement, pursuant to the well established principles of Calderbank v Calderbank . That was not done in this instance, and I decline to rely on that aspect of Mr Lloyd's submissions.
In D.B. Rreef Funds Management Ltd & P.T. Ltd v Valentino Home Fashion Pty Ltd; Valentino Home Fashion Pty Ltd v Westfield Hurstville (Westfield Management) [2008] NSWADT 332, the Tribunal considered whether two paragraphs within an application for mediation should be admitted into evidence at the substantive hearing of the proceedings. At [46 - 49], it said:-
46 In Particular 1 in respect of Order 3 which it seeks in the Notice of Motion, the Lessor asserts that in paragraphs 5 and 7 of the Application for Mediation which the Lessee lodged with the Retail Tenancy Unit on 6 June 2007 "that, in entering into the retail shop lease, it did not rely on a pre-lease misrepresentation with respect to sales per square metre for homewares at Westfield Hurstville".
47 Division 2, sections 63- 69, of Part 8 Dispute Resolution, of the RL Act mandates participation in a mediation process before proceedings can be taken in respect of a retail tenancy dispute. Such a mediation occurred in this case, and as I have noted, the Registrar, Retail Tenancy Disputes certified on 20 August 2007 that the mediation had failed to resolve the dispute between the Lessor and the Lessee in respect of the subject premises. Section 69 makes statements made in the course of a mediation inadmissible in subsequent proceedings [the Tribunal quoted here the terms of section 69]...
There is an expanded definition of "mediation" in section 67...
48 The RL Act provisions concerning mediation referred to above are not as extensive as those in sections 99-111 of the ADT Act dealing with Tribunal ordered mediations (and neutral evaluations) and in particular sections 107 and 108 of the ADT Act are extensive provisions relating to Privilege and Secrecy respectively. See also sections 25-34 of the Civil Procedure Act 2005 and Uniform Civil Procedure Rules 20.1-20.7 relating to Court ordered mediations. Section 125 of the ADT Act dealing with privileged documents and the Evidence Act 1995 might also be noted. Privilege and confidentiality are features also of consensual mediations and mediation agreements traditionally contain provisions detailing those features. Against that sort of background I had an instinctive reaction against accepting the Application for Mediation in evidence. Nevertheless, in some situations evidence may be given of matters associated with mediations (apart, of course, from proceedings to enforce a compromise agreement made at mediation). For example, in Al Mousawy v J A Byatt Pty Ltd [2008] NSWSC 264 the Court admitted evidence of written communications by one party refusing to participate in a mediation which had been arranged. The Court acknowledged the provisions in the Uniform Civil Procedure Act 2004 relating to privilege and said at [17]:
"The purpose of such provisions is clear. As Gleeson CJ said in Gain & Anor v Commonwealth Bank of Australia & Anor (1997) 42 NSWLR 252 at 256 in relation to the same wording:
'The reason for such legislative provision is obvious. It is the policy of the legislation that parties should be encouraged to discuss their differences without the risk that things they say might later be used against them, in court, if the mediation does not result in settlement.'"
Explaining why it admitted the communications into evidence, the Court said at [21]:
"The facsimile and email, however, were not prepared for use in the mediation or in any preparatory stage leading up to the mediation. The documents are the very antithesis of the sort of documents which the section is designed to protect from disclosure and which were described in Gain. These documents relate to the cancellation of a mediation session. They are at most collateral or incidental to it but do not gain the protection afforded by section 30 (4)."
Another example is Alessa Pty Ltd v Total and Universal Pty Ltd [2002] NSWADTAP 16 where evidence had been received of advice by an officer of the Retail Tenancy Unit to a party prior to the mediation (evidently not of the sort covered by section 67 of the RL Act).
49 In the case before me, in the Application for Mediation, in response to the questions within the form "What is the dispute about?" and "What do you hope to achieve from mediation?" the Lessee attached four closely printed pages of details. These go beyond the identification of matters for the purpose of answering the questions and set out, in some detail, contentions and complaints by the Lessee against the Lessor. As such, this material should, I think, be viewed as not just part of a document formally starting the mediation process but also as the presentation of matters for the purposes of the mediation. It therefore comprises, in my opinion "statement(s) or admission(s) made in the course of the mediation" and as such is rendered inadmissible by section 69. Particular 3 fails, in my opinion, for that reason alone.
We know of no cases decided in the Tribunal or elsewhere contradicting the proposition of importance emerging from these decisions: namely, that the prohibition imposed by section 69 of the RL Act applies to the determination of applications for costs orders in Tribunal proceedings instituted under this Act.
We have given careful consideration to the argument by Jolly Joe's that section 131(2)(h) of the Evidence Act renders evidence of its settlement offer admissible. We are satisfied, however, that this provision is not applicable, for two reasons.
Our first reason is that this provision of the Evidence Act , along with other provisions bearing on the admissibility of evidence, does not apply to proceedings under the RL Act in the Tribunal.
In so ruling, we take into account the following matters that might indicate the contrary. Section 4 of the Evidence Act states that it applies to 'all proceedings in a NSW court'. In the Dictionary to this Act, 'NSW court' is defined as including the Supreme Court and 'any other court created by Parliament'. In Trust Company of Australia Ltd v Skiwing Pty Ltd (2006) 66 NSWLR 77; [2006] NSWCA 185, Spigelman CJ stated at [29] that '[f]or many statutory purposes, the Tribunal would have sufficient of the characteristics of a court to answer a statutory provision relating to "courts"'. Furthemore, in O'Sullivan v Central Sydney Area Health Service (No 2) [2005] NSWADT 136 at [13 - 17], it was held in Equal Opportunity Division of the Tribunal that this Division, which like the Retail Leases Division hears civil disputes involving private parties, was a 'court' for the purposes of a provision of the Evidence Act (section 15) relating to the compellability of witnesses.
In our opinion, the determining provision in this context is however section 73(2) of the ADT Act. This commences as follows: 'The Tribunal is not bound by the rules of evidence...' On a day-to-day basis, as is well known to practitioners involved in proceedings under the RL Act, the Tribunal does not apply the provisions of the Evidence Act in determining the admissibility of evidence. There is accordingly no reason for thinking that it should treat section 131 of that Act as applicable to such proceedings.
Secondly, it has been held in a number of cases that a statutory provision expressly rendering inadmissible any statements made during a mediation will override the provision in section 131(2)(h) that statements made during settlement negotiations may be admissible when determining liability for costs. The decision of Brereton J in Azzi and Ors v Volvo Car Australia Pty Ltd (Costs) [2007] NSWSC 375 provides a good example. The following extracts from his judgment at [5], [10 - 13] and [19] are sufficient for present purposes:-
5 [The] Civil Procedure Act , s 30(4), provides that subject to s 29(2) - which is not presently relevant:
(a) Evidence of anything said or of any admission made in a mediation session is not admissible in any proceedings before any court or other body, and
(b) A document prepared for the purposes of, or in the course of, or as a result of, a mediation session, or any copy of such a document, is not admissible in evidence in any proceedings before any court or other body.
10 It is plain that the offers that were made at the mediation could be relevant on the question of liability for costs. Mr Moses submits that as the Court has "jurisdiction", under Civil Procedure Act , s 98(1)(c), to order that costs be awarded on an indemnity basis, and as Civil Procedure Act s 5 provides that nothing in the Act limits the jurisdiction of the Court, the offers made at the mediation are admissible under Evidence Act , s 131(2)(h). He submits that the Civil Procedure Act , and in particular s 30, was not intended to exclude or oust the jurisdiction of the Court to make an indemnity costs order by reference to offers that were made at a mediation.
11 In my opinion, this misconceives the operation of s 131(2), and confuses provisions ousting jurisdiction with rules of evidence.
12 As to the first of these matters, Evidence Act , s 131(2)(h), does not make every offer of settlement that may be relevant to a question of costs admissible; rather, it removes, in the case of such offers, the bar to admissibility otherwise imposed by s 131(1). It is only that bar, and not any other bar, that it removes. In particular, it does not remove the bar imposed by Civil Procedure Act , s 30(4).
13 As to the second aspect, s 30(4) is a rule of evidence, and not a provision affecting the jurisdiction of the Court. It in no way limits the jurisdiction or power of the Court to make a costs order or an indemnity costs order. It simply excludes from admissibility (not only on the question of costs, but at all) evidence of what transpires at a mediation session. That it extends to proceedings in respect of costs is plain enough on its face: the provision says that such evidence is not admissible in any proceedings, any court or other body.
19 The view that I take of the relationship between Evidence Act , s 131(2)(h), and Civil Procedure Act , s 30(4), is substantially the same as that expressed by Palmer J in Rajski v Tectran Corporation Pty Limited [2003] NSWSC 476. His Honour identified (at [11]) that the purpose of such provisions included avoiding the circumstance that a mediation, rather than affording a haven for litigation in which parties negotiate frankly and informally towards settlement of their dispute, instead become another area of conflict, generating further proceedings in Court. Then his Honour said, (at [16])]:
It seems to me that s 131(1) and (2) of the Evidence Act are concerned with the exclusion from and admission into evidence generally of matter which may otherwise attract the principles of the common law relating to "without prejudice" communications between parties made for the purposes of negotiating settlement; they are not intended to apply to the special process of settlement negotiation provided by a mediation ordered by the Court under the provisions of Pt 7B of the Supreme Court Act . Part 7B contains its own Rules as the evidentiary use which may be made of what is said and done in and for the purpose of settlement negotiations in a mediation under that Part and, in my view, those Rules override the general provisions of s 131 of the Evidence Act .
For the foregoing reasons, we conclude that in the costs decision the Tribunal erred in law by admitting evidence of the offer of settlement made by Jolly Joe's to Wallis Lake during the mediation of the parties' dispute held in December 2006 pursuant to arrangements made by the Registrar of Retail Tenancy Disputes.
We make one further observation. If a mediation of a retail tenancy dispute is not held pursuant to arrangements made by the Registrar, section 69 of the RL Act is not applicable. The question whether evidence of an offer of settlement made during such a mediation is admissible on the matter of costs must instead, it would seem, be resolved according to common law principles. In our opinion, consideration should be given to extending the Act's provision on this question to all mediations.
Since no other ground on which the Tribunal considered that it would be 'fair' to award costs to Jolly Joe's is apparent from its decision, the outcome of this ruling by us must be that Wallis Lake's appeal should be allowed, unless some other ground for retaining the Tribunal's decision is established.
Other grounds advanced by Jolly Joe's
In its Notice of Reply to Appeal and in its primary submissions in the appeal, Jolly Joe's argued that in reaching its conclusions under paragraphs (a) and (b) of section 88(1A) of the ADT Act (see the costs decision at [20 - 22]), the Tribunal had (i) failed to take proper account of evidence showing that Wallis Lake had 'unnecessarily disadvantaged' Jolly Joe's by conduct falling within paragraph (a) and had unnecessarily prolonged the first Tribunal hearing, and also had (ii) given weight to unsupported claims by Wallis Lake that unnecessary delay had been caused by Jolly Joe's.
Save in one respect, none of the arguments put forward by Jolly Joe's in this context involved a claim that the Tribunal erred in law. Instead, the submissions dealing with this topic mostly comprised an account of pre-trial events and of the progress of the first Tribunal hearing. They emphasised aspects of the behaviour of Wallis Lake and its legal representatives that, according to Jolly Joe's, caused unnecessary delay and sought to refute claims by Wallis Lake that Jolly Joe's conduct was responsible for the long period required to complete this hearing.
These submissions, in so far as they were composed of factual assertions, do not provide grounds for disturbing on appeal the Tribunal's conclusion that Jolly Joe's failed to make out a case for costs under section 88(1A)(a). They did not identify components of the admitted evidence that might have shown that the Tribunal's primary findings were against the weight of the evidence, or that these findings provided an inadequate foundation for its conclusions regarding responsibility for the delays that occurred.
The sole assertion by Jolly Joe's amounting to a claim of error of law by the Tribunal was, as formulated in the Notice of Reply to Appeal, that there was 'no evidence before the Tribunal' to support its finding (at [20] and [22]) that Jolly Joe's was responsible for any delay in providing relevant financial information.
In this section of the Notice of Reply, Jolly Joe's referred to paragraph 9 of Mr Paton's affidavit of 19 March 2010. Mr Paton testified in that paragraph that late in September 2006 lengthy affidavits by three deponents were served on Stacks/Forster and that one of these affidavits was sworn by Mr Douglas Atkinson, whom he described as the accountant who 'quantified' Jolly Joes' damages.
It is well established (see e.g. Skiwing Pty Ltd v Trust Company of Australia (trading as Stockland Property Management) [2006] NSWCA 276 at [52]) that if an Appeal Panel finds that there was 'no evidence', or 'no probative evidence' to support a finding of fact in the decision under appeal, the making of that finding constitutes an error of law. But Jolly Joe's submissions went no further than referring to this paragraph in Mr Paton's evidence when seeking to demonstrate that there was 'no evidence' to support the Tribunal's finding.
In fact, Mr Atkinson, the accountant mentioned in that paragraph, was not the only witness called by Jolly Joe's in relation to its financial losses. A list of its witnesses contained in the Tribunal's first substantive decision ( ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd [2007] NSWADT 297) at paragraph [5] includes also 'a registered tax agent, who handled Mr Morris's and the company's tax and financial affairs until about 2003'. Furthermore, the Tribunal referred at [9] to the filing of affidavits by Mr Atkinson on 7 February and 2 April 2007, in addition to the affidavit mentioned in Mr Paton's affidavit.
Jolly Joe's submissions to us accordingly fall well short of showing that there was 'no evidence' or 'no probative evidence' to support the Tribunal's finding that it was responsible for some delay in providing relevant financial information.
For these reasons, Jolly Joe's has failed to establish any ground for overturning the findings of fact on which the Tribunal based its conclusion that no costs order should be made against Wallis Lake by virtue of the considerations stated in paragraphs (a) and (b) of section 88(1A) of the ADT Act. Similarly, it has not been demonstrated to us that the Tribunal's approach to assessing the significance of those findings was incorrect in any way. It follows that there are no grounds whereby we might conclude that a costs order against Wallis Lake is justifiable by reference to these paragraphs.
Wallis Lake's claim for a costs order
In its submissions to the Tribunal and in the appeal, Wallis Lake argued that a costs order, relating to the costs of the first substantive hearing and of the hearing before the Appeal Panel, should be made in its favour by virtue of paragraph (c) of section 88(1A). It submitted further that the order should be for the payment of indemnity costs.
This claim was based on the following line of argument. During the first substantive hearing, Jolly Joe's contended 'vehemently' that its financial loss sustained on account of Wallis Lake's conduct should be equated with the loss sustained by Mr Morris. It also adduced evidence, which was 'substantial and dominant', to establish the scale of Mr Morris's loss. In so doing, it was pursuing a claim that had 'no tenable basis'. Wallis Lake relied also on the fact that at the rehearing on damages, the Tribunal preferred the evidence of its financial expert over that of the expert called by Jolly Joe's (see ACN 079 830 595 Pty Ltd v Wallis Lake Fisherman's Co-operative Ltd [2010] NSWADT 30 at [31]). According to Wallis Lake's submissions, 'the time and costs in relation to this untenable claim probably took up at least 75% of the total time involved in the proceedings'.
In support of this argument, Wallis Lake cited the decision of the Court of Appeal in Brittain v The Commonwealth of Australia (No 2) [2004] NSWCA 427. This decision arose out of a claim for damages brought against the Commonwealth by a seaman who was on board HMAS Melbourne on the night (10 February 1964) when it collided with and sank HMAS Voyager. He was not physically injured, but he claimed that he suffered from post traumatic stress disorder. The case was tried before a jury. The trial judge declined, at the instance of senior counsel for the Commonwealth, to give a specific direction to the jury ('the Medlin direction') relating to the assessment of damages. The Court of Appeal held that the judge erred in so doing and ordered a retrial of the case.
In a subsequent decision, being the decision cited by Wallis Lake, the Court held that the Commonwealth should pay the plaintiff's costs of the first trial on an indemnity basis. Having referred at [21] to the 'general rule' that 'where a new trial was ordered, the costs of the first trial would abide the event of the second', McColl JA, with whom Handley and Tobias JJA agreed) explained at [31 - 33] the Court's reasons for departing from this rule:-
31 This Court held ( Brittain No. 1 , at [32]) that the trial judge's failure to give the Medlin direction was a material matter that was capable of affecting the result of the trial so as to have occasioned a substantial wrong or miscarriage: Supreme Court Rules Pt 51 r 23. The trial judge did not give the Medlin direction because Senior Counsel for the respondent persuaded her to the contrary: see Brittain No. 1 at [25].
32 In my view the respondent was the cause of the miscarriage of that trial. I do not accept its submission that the position may have been different had the appellant's counsel addressed differently. That is a matter of speculation. What is plain is that the respondent opposed the Medlin direction. The trial judge acceded to the respondent's submission which, in turn, led to error.
33 The effect of the failure to give the Medlin direction was that a substantial issue in the appellant's case was not properly before the jury. It would be unjust, in my view, to deprive him of the costs of the first trial in circumstances where a new trial was ordered because the respondent led the trial judge into error. Further, in the circumstances where the appellant has been put to the expense of a new trial solely because of the failure to give the Medlin direction, it is appropriate that the respondent pay the appellant's costs of the first trial on an indemnity basis: see Oshlack v Richmond River Council [1998] HCA 11; (1998) 193 CLR 72 at 89 [44].
In its primary submissions in the appeal, Jolly Joe's denied the allegations by Wallis Lake that its counsel at the first substantive hearing argued 'vehemently' that damages should be assessed according to the losses suffered by Mr Morris and that it adduced 'substantial and dominant' evidence to establish the scale of these losses. Jolly Joe's maintained instead that it simply 'presented to the Tribunal... all the financial losses of the applicant in all forms whether personal or company... in affidavit form', and that 'the only substantial oral evidence of personal loss were the two days of cross examination by the appellant's own counsel which produced nothing more than what was already in the possession of the appellant and before the Tribunal'.
In our judgment, this claim for costs by Wallis Lake must be rejected, for the following two reasons.
First, to the extent that it is based on the Court of Appeal's decision in Brittain (No 2) it must fail by virtue of aspects of the Tribunal's decision following the first substantive hearing ( ACN 079 830 595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Ltd [2007] NSWADT 297). It was stated in this decision that the expert witnesses on both sides treated as relevant at least some of the evidence relating to Mr Morris's losses. For example, the 'matters agreed section' of a joint report prepared by the parties' expert witnesses (extracts from which are reproduced at paragraph [107]) contained 'an estimation of the immediate revenue loss that Mr Morris has incurred...' (our emphasis). Furthermore, it was nowhere indicated in the Tribunal's reasons that the error subsequently identified by the Supreme Court - that of equating Mr Morris's losses with the losses suffered by Jolly Joe's - was the consequence of any specific submission by Jolly Joe's counsel, or indeed was a matter on which Wallis Lake's counsel made an opposing submission.
Secondly, the assertions in Wallis Lake's submissions as to the amount of time taken up by evidence regarding Mr Morris's financial losses, being denied by Jolly Joe's, fall well short of providing a basis for holding that, being the losing party overall, it should be the beneficiary of a costs order. In our opinion, the observations made in the costs decision at [24] regarding the applicability of section 88(1A)(c) to these proceedings are quite appropriate:-
24... The respondent says that the applicant was largely unsuccessful, pointing to the difference between the damages claimed and the damages awarded. I do not agree with this approach. The applicant was successful in its claim for damages and was successful in proving unconscionable conduct. The fact that the quantum of damages was reduced on appeal does not derogate from the original findings on liability. Both parties had arguable cases and both advanced them robustly but not unreasonably.
Conclusions
We have held that the costs order made by the Tribunal in favour of Jolly Joe's was based on evidence that should not have been admitted. By virtue of this error of law, the order must be set aside under section 114(2)(a) of the ADT Act. We have considered and rejected an alternative ground on which a costs order in favour of Jolly Joe's might be made. We have also considered and rejected a claim by Wallis Lake for a costs order in its favour.
The outcome of the appeal must therefore be as indicated by section 88(1) of the ADT Act. The order that we substitute under section 114(2)(c) should be to the effect that each party is to bear its own costs of the proceedings to which the Tribunal's costs decision related: namely, the first substantive hearing in the Retail Leases Division, the hearing of Wallis Lake's appeal against the Tribunal's first decision and the rehearing on damages held in the Retail Leases Division.
Since no application was made for any costs incurred in relation to the Tribunal's costs decision, it is appropriate that the parties also bear their own costs associated with this part of the proceedings.
Neither party has succeeded overall in these appeal proceedings and the costs incurred in them are moderate in scale. We therefore make no order as to the costs of the appeal.
The orders set out on the cover page of this decision embody these conclusions.
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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
Decision last updated: 09 June 2011
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