Wood & Anor v Bergman (No 2)

CITATION:	Wood and Anor v Bergman (No. 2) [2003] NSWADT 175
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS Anthony Peter Wood Maree Leanne Wilson
FILE NUMBER:	025084
HEARING DATES:	18 March 2003
SUBMISSIONS CLOSED:	06/24/2003
DATE OF DECISION:	07/23/2003
BEFORE:	Chesterman M - ADCJ (Deputy President)
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Wood & Wilson v Bergman [2003] NSWADT 82 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Barsoum v Glebe Administration Board (No. 2) [2002] NSWADT 174
REPRESENTATION:	APPLICANT B Heydon, solicitor RESPONDENT M Baker, solicitor
ORDERS:	Respondent’s application for costs dismissed

Introduction

1 In this matter, the applicant Lessees, Mr Anthony Peter Wood and Ms Leanne Maree Wilson (‘the Lessees’), applied for relief by way of damages under the Retail Leases Act 1994 (‘the Act’) in relation to a lease of premises at 16 Granuille Road, Bangalow that had been granted to them by Ms Angelique Bergman (‘the Lessor’).

2 The lease was signed on or shortly before 30 June 2000. It included a statement that the permitted use of the premises leased was as follows: ‘PETROL STATION and Shop for the sale of grocery items and automotive parts and accessories’.

3 On 18 March 2003, a preliminary hearing (‘the jurisdiction hearing’) took place at Byron Bay before me to determine whether the Tribunal had jurisdiction to grant relief. The Lessees claimed that this lease was a retail shop lease within the definition in s 3 of the Act and that the Tribunal accordingly had jurisdiction to grant the relief sought. The Lessor claimed that the Tribunal had no jurisdiction because the lease fell outside this definition.

4 On 23 April 2003, I gave judgment in favour of the Lessor (Wood & Wilson v Bergman [2003] NSWADT 82). I declared that the lease was not a retail shop lease within the Act and that the Tribunal had no jurisdiction to grant the relief sought. I accordingly dismissed the Lessees’ application.

5 The Lessor then applied for an order that the Lessees pay her costs. She sought a further hearing to determine this issue. The Tribunal directed, however, that her application should be determined on the basis of written submissions.

6 The Lessor’s submission was filed on 4 June 2003. The covering letter contained a statement that she would not be making any further request for a hearing. The Lessees’ submission was filed on 18 June 2003.

The relevant law

7 Generally speaking, costs in proceedings in this Tribunal are regulated by s 88 of the Administrative Decisions Tribunal Act 1997 (hereafter ‘s 88’). Subsection (1), which is the important provision for present purposes, is as follows:

Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in…