Wu v Hawsher

[2002] NSWADT 54

CITATION:	Wu -v- Hawsher & anor [2002] NSWADT 54
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Gui Rong Wu RESPONDENTS Wagih Mohamed Diab Hawsher Hussein Mohamed Diab Hawsher
FILE NUMBER:	015099
HEARING DATES:	29/01/2002
SUBMISSIONS CLOSED:	02/26/2002
DATE OF DECISION:	04/19/2002
BEFORE:	Montgomery S - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150 Townsend v SRA [1999] NSWADT 104 Citadin Pty Ltd v Eddie Azzi Australia Pty Ltd & anor (No 2)[2001] NSWADTAP31 Hoblos v Marchese [1999] NSW ADT 127 Fonua v BHP Co. Ltd [1999] NSW ADT 59 Langley v UNSW (1984) EOC 92-018
REPRESENTATION:	APPLICANT In person RESPONDENTS J Oakley, barrister
ORDERS:	The application No. 015099 brought by Gui Rong Wu against Wagih Mohamed Diab Hawsher and Hussein Mohamed Diab Hawsher is dismissed.

1 This is an application brought by Gui Rong Wu (“the applicant”) in relation to a shop known as 515 Church Street, North Parramatta, being part of the land contained in folio identifier 1/537629 (“the premises”). The registered proprietors of the premises are Wagih Mohamed Diab Hawsher and Hussein Mohamed Diab Hawsher (“the respondents”).

2 The application was filed in the Tribunal on 12 October 2001. On 14 October 2001 the applicant lodged an application for urgent interim orders in the following terms:

“An interlocutory order that pending the final determination of this application and until further order the respondent be restrained from doing any act or acts the effect of which could or might interfere with the applicant’s right to possession of the premises.”

3 The reason given for the urgent interim order was:

“The landlord has removed lock to premises, purported to terminate lease and threatened to treat applicant as trespasser.”

4 The matter came before Judicial Member Fox for directions on 19 October 2001. At that time the Member issued directions for the filing of documents and the further progress of the matter. A stay of a Notice of Termination issued by the respondents was put in place pending further hearing of the issue on 8 November 2001. On that date the stay was extended until the date of the next Direction Hearing which was set for 6 December 2001. The applicant’s solicitors withdrew from the matter prior to the next Direction Hearing and there was no appearance by the applicant on that date.

5 The matter was relisted for 18 December 2001. On that date the matter was referred to the Registrar of Retail Tenancy Unit for mediation. Further directions were set for 17 January 2002. A new timetable was set and the matter was listed for hearing on 29 January 2002. It appears that the stay which was extended on 8 November 2001 remains in place.

6 Annexed to the original application was an outline of the orders sought by the applicant. That outline provided:
“ Orders sought by Applicant (clause 10)
(1) A declaration that the damage to the building referred to in the schedule is not such as to make its repair impracticable or undesirable.
(2) A declaration that the notice dated 2 October 2001, by which the respondent purported to terminate the applicant's lease … is of no effect.
(3) A declaration that the lease has not been terminated by the notice dated 2 October 2001 and is presently valid and on foot.
(4) A declaration that the respondent pursuant to the lease is obliged to repair the building of which the leased premises form part.
(5) An order that the respondent repair the building of which the leased premises form part.
(6) An interlocutory order that, pending the final determination of this application, and until further order, the respondent be restrained from doing any act or acts the effect of which could or might interfere with the applicant's right to possession of the premises referred to in the schedule, except insofar as the respondent may require access to the premises for the purpose of repairing the building of which the leased premises form part.
(7) Further or other ancillary orders as the Tribunal considers necessary for the purpose of enabling its orders to have effect, including liberty to apply.
(8) Damages.
(9) Interest on damages.
(10) Costs.”

7 No cross-claim was lodged by the respondents. However, they sought orders that the application be dismissed and that the applicant pay their costs.

Background to the Application

8 A lease was entered between the applicant and the respondents in relation to the premises. That lease (“the lease”) is stated to terminate on 29 March 2002.

9 It is not disputed that the premises were damaged in a fire on 27 May 2001. Nor is it disputed that the applicant has been unable to operate his business from the premises since that date.

10 The lease is governed by the Retail Leases Act 1994. It is common ground that the respondent purported to terminate the lease pursuant to Section 36(1)(c) of the Act on the basis that in their opinion the damage is such as to make the repair of the premises impracticable or undesirable. On 28 September 2001 the respondents wrote to the applicant in the following terms:

“Please take note that the Lessor considers that the fire damage to the premises you previously occupied as Lessee at 515 Church Street, Parramatta is such as to make its repair impractical or undesirable.
Pursuant to this provision either party may terminate this lease by giving not less than seven (7) days notice in writing to the other party.”

11 The Notice of Termination dated 2 October 2001 and served on the applicant provided:

“Pursuant to Section 36(1)(c),of the Retail Leases Act 1994 the Lessor hereby terminates your lease of 515 Church Street, Parramatta at the expiration of seven (7) days commencing the day after the date of service of this notice.”

12 The lease provides for an option to renew for a period of three years on the terms set out in part IV of the lease. The applicant sought to exercise the option but the respondents rejected this application. The applicant’s purported exercise of the option was by way of letter dated 31 January 2002. That letter provided:

“I, Gui Rong Wu, the Lessee of the grocery shop at 515 Church Street North Parramatta, exercise the option of the lease to renew another three years, which was not made on or before 2nd April 2002 because of the lessor' s termination of the existing Lease and dispute which had been raised before the Administrative decisions Tribunal since 18 October 2002.”

13 The respondents replied by letter of the same day in the following terms:

“We acknowledge receipt of your purported Notice of Renewal but same is rejected having regard to the essential time parameters in the Lease with which you have not complied.”

14 Item 8 of the lease provided for an option for a further term of three years. The provisions of the lease which are applicable to the exercise of the option are contained within Part IV of the lease. The relevant provisions are:

“If the Lessee shall be desirous of renewing this lease for the further term as specified in Item 8 from the date of expiry of the term of this Lease and of such desire shall give to the Lessor during the last year of this Lease not less than three (3) months previous written notice and if at the same time of such notice and at the time of the expiration of this Lease there shall be no subsisting breach by the Lessee of the terms of Lease, then the Lessor shall grant to the Lessee a further Lease for such further period commencing on the date after the date of expiration of the time of this Lease subject to the terms of this Lease but with the exception that:
(a) If the number of option terms specified in Item 9 of the Reference Schedule is more than one, the number of option terms shall be reduced by one.
(b) If the number of option terms appearing in Item 9 of the Reference Schedule shall be one;
(i) This Part IV shall be deleted.
(ii) Items 8 & 9 of the Reference Schedule shall be deleted.
(c) Item 2 of Part II shall be amended to provide that the rent payable for the first year under the renewed Lease shall be agreed upon by the Lessor and Lessee or failing such agreement shall be the then current market review to be determined in accordance with the provisions of Part IIIa. The rent payable for the second and subsequent years shall be determined in accordance with Part III and III(a) as applicable.
(d) If the rent for the renewed term is not ascertained before its commencement, the Lessee shall pending ascertainment thereof pay the rent at the rate payable immediately before the expiration of the term of this present Lease and upon the rent for the renewed term being ascertained any necessary adjustment of rent calculated from the commencement of the renewed term shall forthwith be made between the Lessee and the Lessor.
(e) If the performance and observance of the Lessee's obligations hereunder are guaranteed, the Lessor may require fresh Guarantees to be substituted for the existing Guarantee.”
15 Paragraph 12 of the lease specifically addresses the relationship between the parties in the event that the premises are damaged. The relevant provisions contained within paragraph 12 provided:
“ Destruction or Resumption of or Damage to Building or Premises:
12.1 Either Party May Terminate:
If the building is destroyed or damaged so that the whole or a substantial part of the Premises is damaged then the Lessor may give a notice under Section 36(c) of the Act that it is undesirable to repair the damage and the Lessor or the Lessee may terminate the Lease by giving not less than 7 days notice in writing to the other.
12.2 Failure to Reinstate:
If the Lessor fails to repair the damage within a reasonable time after the Lessee requests the Lessor in writing to do so, the Lessee may terminate the Lease by giving not less than 7 days notice in writing of termination to the Lessor,
…..
12.7 Mutual Release
Each part releases the other from liability or loss arising from and costs, charges and expenses incurred in connection with the termination of this Lease under this clause 12.”

16 Paragraph 13 of the lease deals with miscellaneous items. Subparagraph 13(3) provides:

“13.3 Nothing herein contained or implied shall be deemed to impose any obligation upon the Lessor to rebuild or reinstate or make fit for occupation the premises or the building in case of destruction or damage as aforesaid.”

17 As noted above, the lease is governed by the Act. Section 68 of the Act provides:

“68. Disputes and other matters must be submitted to mediation before proceedings can be taken
(1) A retail tenancy dispute … 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.”

18 While there was no certificate that mediation has failed to resolve the dispute was provided, I was satisfied that mediation was unlikely to resolve the dispute or matter. I was therefore prepared to hear the matter.

19 Section 7 of the Act provides that the Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of the Act.

20 The act makes specific provision in relation to damaged premises. These provisions are found within section 36 of the Act which states:

“36 Damaged premises
(1) A retail shop lease is taken to provide for the following if the shop or the building of which the shop forms part is damaged:
(a) The lessee is not liable to pay rent, or any amount payable to the lessor in respect of outgoings or other charges, that is attributable to any period during which the shop cannot be used under the lease or is inaccessible due to that damage.
(b) If the shop is still useable under the lease but its useability is diminished due to the damage, the lessee's liability for rent and any amount in respect of outgoings attributable to any period during which useability is diminished is reduced in proportion to the reduction in useability caused by the damage.
(c) If the lessor notifies the lessee in writing that the lessor considers that the damage is such as to make its repair impracticable or undesirable, the lessor or the lessee may terminate the lease by giving not less than 7 days notice in writing to the other and no compensation is payable in respect of that termination.
(d) If the lessor fails to repair the damage within a reasonable time after the lessee requests the lessor in writing to do so, the lessee may terminate the lease by giving not less than 7 days notice in writing of termination to the lessor.
(e) Paragraphs (a)–(d) do not affect any right of the lessor to recover damages from the lessee in respect of any damage or destruction to which those paragraphs apply.
(2) A retail shop lease must not contain any provision the effect of which is to limit any liability of a party to the lease to pay compensation to another party to the lease in respect of damage to the shop or the building of which the shop forms part.
(3) Nothing in this section prevents the parties to a lease from terminating the lease by agreement if the shop or the building of which it forms part is damaged or destroyed.”

21 At the hearing of the matter oral evidence was presented by the applicant and by the first respondent. Each of these individuals has also prepared sworn affidavits which were put in evidence. The respondents also relied on an affidavit of John Southwell, a building consultant who acted as a consultant to the insurance company with whom the premises were insured.

22 A valuation report prepared by Access Valuations Pty Ltd was also put in evidence. That report was prepared to assist in these proceedings and while it is dated 23 January 2002 it provides a valuation as at 27 may 2001.

23 I also had the benefit of written submissions prepared on behalf of each party.

The Applicant’s Case

24 The essence of the applicant’s case is that the test of whether it is practicable or desirable that the damaged premises be repaired must be an objective test. He argued that the premises are of significant value and have suffered only minor damage and therefore it is both practicable and desirable that the damage be repaired.

25 His case has two main limbs. Firstly, he sought to show that the premises were incorrectly valued by Access Valuations. He did this by challenging the basis of the valuation and in particular the figures used in reference to the size of the various shops in the building, the rent paid in relation to the shops and the outgoings payable in relation to the premises.

26 He also sought to contrast the value of the premises as calculated by Access Valuations with the alleged value of surrounding properties and alleged notice provided by Parramatta City Council regarding future road widening to show that the figure proposed by Access Valuations could not be accurate. He was under some disadvantage as a consequence of his lack of legal assistance. The respondents objected to the admission of much of the applicants arguments on this issue on the basis that it was not substantiated. While I agreed with the respondents in regard to that objection, I allowed the applicant to present his arguments in the form of submissions. As unsubstantiated claims, these arguments can be given little weight.

27 Secondly, the applicant sought to show that the damage to the premises was minimal and that the cost of repairing the premises was far less than that alleged by the respondents. This limb of his case was based on a quotation prepared for him by Chi Yuang Company. This quotation indicates that the cost of the repairs is $17,600.00 and that the work would take a period of three weeks. He contrasted this quote with those prepared for the insurer and relied on by the respondents which indicated that the total repair costs would be over $200,000. The quotation relied on by the respondents which deals directly with the applicant’s shop indicates that the cost of repairs to that area would be $56,320.

The Respondents’ Case

28 The respondents rely on the provisions of section 36(1)(c) of the Act as providing the basis for termination. Their cases is based on the argument that the test for section 36(1)(c) is a subjective one. In support of this view they submitted that in contrast to section 36, reasonableness is a requirement of sections 34 and 35 of the Act. The absence of a requirement for reasonableness in section 36 suggests that the test is subjected not objective.

29 Either party can terminate under section 36. In this case the respondents terminated the lease. The respondents submitted that there is no scope to import consideration of the concept of fault in relation to this provision. It is simply a frustrated contract which has been brought to an end.

30 The respondents referred to paragraph 13.3 of the lease which is an express provision that the respondents are not required to reinstate the premises. They submitted that there is no power in the tribunal to vary that provision in the absence of a specific provision to that effect. The tribunal therefore has no power to require the respondents to rebuild the premises. The respondents are entitled to determine not to rebuild. They have in fact made that decision. That decision cannot be the subject of review.

31 In the alternative the respondents submitted that if their decision can be subject to review, it was a reasonable decision. The evidence presented by the respondents to show the reasonableness of their decision and that it is impracticable to repair the damage is in the form of a Valuation Report prepared by Access Valuations Pty Ltd and quotations obtained on behalf of the insurer.

32 The Access Valuations Report indicates that the market value of the property as at 27 May 2001 was $525,000.

33 John Stephen Southwell deposed that he had prepared a scope of works necessary to repair the premises. He submitted the scope of works to three builders and requested each builder to provide a quotation to undertake the work detailed in the scope of works. Each builder submitted quotes. The quotes provided that the cost to undertake the work set forward in the scope of works was the following:

"DJE Building Services $214,510
Veemark Constructions $251,358
Peter Fenianous $245,500”

34 Mr. Southwell also indicated that it would take a minimum of 12 weeks to complete the work once council approval has been obtained.

35 Mr. Southwell challenged the suggestion that it would be possible to repair the applicant's shop in isolation from the repairs to the rest of the premises. He gave three reasons for this view. Firstly, the roof to the whole of the premises will need to be demolished and replaced with new framing and new roof sheets. Secondly, part of the dividing wall between the applicant's shop and the former Indian restaurant will need to be demolished and replaced and extended so that it continues into the roof cavity to comply with fire rating requirements. Thirdly the premises will need to be totally re-wired and this is unlikely to be feasible for the applicant's shop alone. He concluded that in his opinion it will not be practical or cost efficient to repair the applicant's shop in isolation and that any repairs ought to be performed in conjunction with repairs to the rest of the premises.

36 The respondents submitted that Mr. Southwell’s evidence has remained largely unchallenged. The three quotes presented by the respondents were obtained by Mr. Southwell. They are therefore independent. The quotations are all in the range that would be expected. The quotation which deals with the applicant’s shop suggests a repair cost that is three times that of the quotation provided by Chi Yuang Company. The respondents submitted that the Chi Yuang Company quotation makes no reference to materials and may well be a quotation for labour only. No other explanation has been provided in regard to why that quote is so much less than the quotes obtained by Mr. Southwell.

37 The first respondent gave evidence that the money received from the insurance company related to loss of rent and not merely for the loss of the building. An insurance claim was made for fire damage and loss of rental. The insurer determined that the property was significantly underinsured and rejected the full claim. The insurance payment was not for reinstatement and therefore there is no compulsion to reinstate. With the exception of that portion of the insurance payment that related to loss of rent, the respondents have received no rental from the property since the fire. They have, however, continued to pay interest and outgoings on the property.

38 The respondents submitted that the evidence shows that the premises comprise a modest commercial shop front surrounded by multi-story units. The land upon which the premises are located is more valuable without the building on it. This argument was not challenged by the applicant. On the contrary the applicant’s submissions supported that view. Given that the lease expires in the very near future, it would be foolhardy to rebuild.

39 With respect to the failure by the applicant to exercise the option to renew the lease in the manner provided for by the lease, the respondents asked the tribunal to note that the applicant has been legally represented at various times in relation to the lease. They submitted that the Tribunal has no power to reduce the time for notice of the exercise of the option. This is not a matter regulated by the Act. As the applicant did not exercise the option in the manner required under the lease the respondents were entitled to reject the request to exercise the option and has in fact rejected it. The original lease remains on foot.

40 In the alternative the respondents argued that the lease requires that the tenant must not be in breach of the lease at the time of exercising the option. They submitted that the evidence shows that the applicant has not paid CPI increases, outgoings or GST. Further, the applicant failed to insure stock as required by the lease. This would entitle them to refuse to allow the applicant to exercise the option.

Issues for Determination

41 It is not disputed that the respondents have given the applicant a Notice of Termination pursuant to section 36(1)(c) of the Act. The primary issue for determination by the Tribunal is whether or not the Notice of Termination has the effect of bringing the relationship between the parties to an end. If it has brought the relationship to an end, then the applicant’s case must fail.

42 There is a dearth of authority relating to the application of section 36 of the Act. I note the respondents’ submission that there is no requirement for reasonableness in the application of section 36(1)(c) of the Act whereas such a requirement applies to sections 34 and 35 of the Act. However, if this is correct, such an approach would permit a lessor to terminate a lease in circumstances where it was quite unreasonable to do so and at considerable detriment to the lessee. It is conceivable that a lessor who was in default, where such default was not due to circumstances beyond its control, could take advantage of an insignificant event to terminate a lease. Such an approach would contravene the well established principle of law that no-one should profit by their own wrong doing. I do not accept that this is a correct approach.

43 I see no reason to determine whether or not the view that it is not practicable or desirable to repair the damage to the premises is to be formed objectively or subjectively. However, in my view in order to determine the effectiveness of the Notice of Termination it is necessary and sufficient to determine whether the respondents reasonably formed that view. If the view was formed reasonably, then the applicant’s case must fail.

44 If the lessor did not form the view reasonably, the issue of whether the applicant has exercised the option will remain to be determined.

Was the respondents’ view formed reasonably?

45 I have referred above to the material upon which the respondents have formed the view that it is not practicable or desirable to repair the damage to the premises. At the time the respondents formed the view they had available to them the results of the assessment undertaken by the insurer, the payment from the insurer and quotations relating to the cost of repairing the damage to the premises. The valuation report was not available at that time but it is probable that they had some indication of the approximate market value of the property. They were also aware of their own financial circumstances; the previous income received from the premises; and could form an estimate of potential future income if repairs were undertaken.

46 The evidence from the first respondent makes it clear that the property was under insured. The payment from the insurer was not sufficient to cover the cost of repairs to the whole of the property. Three of the four shops are not tenanted and Mr. Southwell’s evidence indicates that it is not feasible to repair the applicant’s shop in isolation.

47 The applicant has challenged much of this evidence but in my view he has not provided any evidence of substance to seriously discredit it. I accept that some of the figures on which the valuation report was based were wrong. Notwithstanding that fact, I do not accept that the property has been significantly undervalued.

48 The applicant has produced a quotation which suggests that the cost of repairing the damage to his shop is significantly less than that proposed by Mr. Southwell. I do not accept that the quotation obtained by the applicant is a true indication of the cost of repair. Not do I accept that it is feasible to repair the applicant’s shop alone. I prefer Mr. Southwell’s evidence in relation to this issue.

49 Given this view, it follows that the respondents could have reasonably formed the view that it is not practicable or desirable to repair the damage to the premises. It also follows that the Notice of Termination was validly issued and had the effect of bringing the relationship between the parties to an end.

Has the applicant exercised the option to renew the lease?

50 As I have found that the Notice of Termination was validly issued it is not necessary for me to determine the issue of the purported exercise of the option. Nevertheless, I am of the view that the option has not been exercised in accordance with the parameters set out in Part IV of the lease. As noted above, the lease required that not less than three months written notice of the intention to exercise the option had to be given to the respondents. Clearly this was not done.

51 I do not accept that the circumstances leading to the hearing of this matter prevented the applicant giving such notice. It is clear to me that the applicant was familiar with the terms of the lease. On several occasions he has challenged the respondents’ interpretation of those terms. It is reasonable to assume that he was familiar with the terms relating to exercise of the option. Even if that was not the case, I accept the respondents’ submission that this tribunal has no power to extend the time for exercise of the option.

52 Given these findings, the applicant’s case must fail. I therefore dismiss his application.

Costs

53 As I have indicated above, the respondents sought an order that the applicant pay their costs of the matter. I note that the Tribunal’s power to award costs is extremely limited. In essence the power is limited to circumstances where the Tribunal is satisfied that there are special circumstances warranting an award of costs. These powers are governed by section 88 of the Administrative Decisions Tribunal Act 1997. That section provides:

“88 Costs
(1) 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 there are special circumstances warranting an award of costs.
(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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 or on any other basis.
(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.
(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.”

54 The provision in the enactment under which the Tribunal has jurisdiction to make the decision is found in section 77A of the Act. That section provides:

“77A Tribunal may award costs
The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.”

55 This provision has been the subject of consideration in many matters before this Tribunal. In my view a correct statement of the law in relation to the Tribunal’s powers to award costs can be found in the matter of Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150. In that matter, Judicial Member Donald observed at paragraphs 4 to 6 of his reasons:

“4 This Tribunal has rejected the general proposition that because of the commercial character of retail lease relationships, costs should follow the event. Townsend v SRA [1999] NSWADT 104. It has done so notwithstanding the tendency to a contrary view in Victoria in retail lease cases. See the review of the Victorian position by the Appeal Panel of this Tribunal in Citadin Pty Ltd v Eddie Azzi Australia Pty Ltd & anor (No 2)[2001] NSWADTAP31
5 The meaning of "special circumstances" has been considered in cases in a number of decisions of this Tribunal. Descriptions of such circumstances range from "circumstances which take the matter out of the ordinary course (see Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 referred to by this Tribunal in Hoblos v Marchese [1999] NSW ADT 127), to circumstances where the claims "lacked any conceivable merit in fact or law", the purpose of a costs order in those circumstances being described as a measure to prevent "the gross abuse of the legislation by frivolous and vexatious and misconceived proceedings”. Fonua v BHP Co. Ltd [1999] NSW ADT 59 quoting Hutley JA in Langley v UNSW (1984) EOC 92-018 at 75 468.
6 These analyses of the test to be applied make it clear that the circumstances must be seriously beyond the usual or ordinary pursuit of a claim so that it would be seriously unfair to a party to proceedings before the Tribunal not to be awarded some or all of its costs where it has been successful.

56 While the respondents have wholly succeeded in this matter, I am not satisfied that the circumstances of the matter are seriously beyond the usual or ordinary pursuit of a claim so that it would be seriously unfair to the respondents not to be awarded some or all of its costs. I therefore make no order for costs.

Order

The application No. 015099 brought by Gui Rong Wu against Wagih Mohamed Diab Hawsher and Hussein Mohamed Diab Hawsher is dismissed.