Wilbe Pty Ltd v Malmundu Pty Ltd

CITATION:	Wilbe Pty Ltd v Malmundu Pty Ltd [2007] NSWADT 172
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Wilbe Pty Ltd RESPONDENT Malmundu Pty Ltd
FILE NUMBER:	065218
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10 May 2007
DATE OF DECISION:	3 August 2007
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Limited v Total and Universal Pty Limited [2001] NSWADT 150. Cripps & Another v G & M Dawson Pty Limited [2006] NSWCA 81 Gizah Pty Ltd v AXA Trustees Limited (No. 2) Petria Pty Ltd v Makhoul [2005] Prasad v Fairfield City Council (RLD) [2002] Re Minister for Immigration and Ethnic Affairs; Ex parte Lai Qin (1977) Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] Singh v Solomon & Ors (No 2)
REPRESENTATION:	APPLICANT A Masi, solicitor RESPONDENT JC Treback, barrister
ORDERS:	The respondent to pay the applicant's cost of this application as agreed or assessed

Background

1 The applicant is the lessee of premises known as shop 1 at 100-104 Kinghorne Street, Nowra and the respondent is the lessor of those premises. The parties had entered into a five year lease in respect to these premises on 26 July 2001. That lease made provision for two options to renew the lease and each option was for a further five year term.

2 On 29 December 2006, the applicant lodged an application with the tribunal seeking a declaration that it was entitled to the grant of a new lease following its valid exercise of the option to renew, an order that the respondent specifically perform the terms of the lease and grant the applicant a renewal of the lease and an order for the appointment of a specialist retail valuer pursuant to s.19 of the Retail Leases Act 1994 (‘the RL Act’).

3 The matter first came before the tribunal on 1 February 2007 and the tribunal made orders by consent as to the filing and serving of evidence by the parties. The matter next came before the tribunal on 12 April 2007. The only evidence filed following the initial directions hearing was an affidavit of Max Moody, a director of the applicant, which was filed and served prior to the agreed date of 22 February 2007. No evidenced was filed by the respondent. When the matter came before the tribunal at the April 2007 directions hearing it was unnecessary for the tribunal to set a new time table as the respondent consented to the tribunal making the declaration and orders sought by the applicant in its application. As a result the applicant made an application for costs and orders were made for the filing and serving of written submissions and the parties consented to the tribunal dealing with this application on the papers. The respondent also indicated its intention to make an application for costs in…