Chauhan v Demertjis

[2008] NSWADT 304

CITATION:	Chauhan v Demertjis and anor [2008] NSWADT 304
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Champavati Chauhan aka Champa Chauhan RESPONDENTS Charles Demertjis and David Demertjis
FILE NUMBER:	075042
HEARING DATES:	19 November 2007
SUBMISSIONS CLOSED:	1 July 2008
DATE OF DECISION:	13 November 2008
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 2004
CASES CITED:	Cripps v Dawson [2006] NSWCA 81
REPRESENTATION:	APPLICANT K Ramrakha, solicitor RESPONDENT B Pluznyk, barrister
ORDERS:	The Respondent is ordered to pay the Applicant’s costs, on a party/party basis, of appearing at, and preparing for the directions hearings of 12 April 2007, 31 May 2007, 14 June 2007, 21 June 2007, 5 July 2007, 19 July 2007 and 16 August 2007, otherwise no order for costs.

1 In my reasons for decision in this matter, delivered 25 January 2008, I gave a preliminary indication of my thoughts on the Applicant’s application for an order for costs, but gave both parties leave to apply and make submissions. The Applicant did so, and the Respondent’s answer was a blunt denial of the existence of the special circumstances required by section 88 of the Administrative Decisions Tribunal Act.

2 The Applicant’s submissions laid stress on the Respondent’s failure to attend at the mediation which the Applicant attempted to arrange through the Retail Tenancy Unit, and based on that failure, sought costs of the first day’s directions, being 12 April 2008. Section 68 of the Retail Leases Act makes it abundantly clear that the parties to a Retail Lease Dispute are to attempt to mediate before commencing proceedings. Parties often do not heed this statutory direction, and in that case, are usually directed to attempt to resolve the dispute by mediation (whether “privately” or through the Retail Tenancy Unit) before any other steps are taken on the litigious path. In my view it would be entirely inappropriate, and quite contrary to the spirit of the legislation, to in effect NOT give some kind of incentive to parties to seek resolution of their dispute by mediation BEFORE commencing proceedings. I note the authority for this proposition in the Practice Note which (although not exclusively) gives examples of “manner of conducting the hearing” which amount to special circumstances. One of these is “failing to comply with this Act, the rules or an enabling enactment”. Section 68 is one of those requirements of an enabling enactment. When taken together with the comments of Santow J in Cripps v Dawson [2006] NSWCA 81 taking into account the conduct of the landlord in that matter before the commencement of proceedings, it becomes clear that a Respondent’s failure to attend a mediation when invited to before proceedings are commenced, is one of the aspects of conduct in the proceedings which can be taken into account as special circumstances meriting a costs order. The Respondents should have attended at the mediation, and if that had been done, even if the mediation achieved no result, the first Directions Hearing would have been more fully focused upon the preparation for hearing, and delays in that path would have been avoided. On that basis the Applicant is entitled to her costs of the appearance at the first directions hearing.

3 I have already made my thoughts clear in respect of the costs of many of (but not all) subsequent directions hearings, and the Respondent’s blunt denials do not move me in that regard. I now confirm those preliminary observations.

4 The Applicant pressed for costs orders for all direction hearings. In my preliminary observations I did not refer to the directions of 18 October 2007. Molloy J M reserved the costs of that day because the Applicant had not filed, as directed, her particulars of damages sought. Considering the conduct of both parties in the litigation, fairness is achieved by making no order for that day.

5 In respect of the other directions hearings not mentioned in my preliminary observations, I am not satisfied that they were in any way out of the ordinary, and so no order is appropriate in respect of them.

6 As to the cost of the hearing itself, I have to observe that the Applicant only succeeded on one of a number of grounds. Had she only raised the one ground on which she succeeded, or had she abandoned all of the others before the hearing, she may well have fallen within the general principle endorsed by the Court of Appeal in Cripps v Dawson:- that it would be seriously unfair for the successful party to bear the costs. However, the actual course of conduct of the hearing before me, ranging as it did over a number of issues in which the Applicant failed, raised nothing to be considered special circumstances.

7 The Respondent is ordered to pay the Applicant’s costs, on a party/party basis, of appearing at, and preparing for the directions hearings of 12 April 2007, 31 May 2007, 14 June 2007, 21 June 2007, 5 July 2007, 19 July 2007 and 16 August 2007, otherwise no order for costs.