Clarkson v The Hitman Transport Pty Ltd (No 2) [2009] RSLT 6

[2009] RSLT 6 RETAIL SHOP LEASE TRIBUNAL In the matter of Dispute No. 2009/0014 KERRY CLARKSON Claimant - and - HITMAN TRANSPORT PTY LTD Respondent Before:- Ken Watson (Chairperson) Don McBryde Sandra Kairl Appearances: Claimant: Ms Kerry Clarkson for the Claimant. Respondent: Mr Stephen Baldwin (Solicitor) for the Respondent. DECISION ON COSTS Given in Brisbane on 15 th day of October 2009 -- 1 of 3 -- Decision Dispute 2009/0014 2 The matters before the Tribunal today concern two Applications both are Applications for costs. We deal with the first Application which was the one brought first in time being the application by the Claimant, Ms Clarkson, for her costs. In her letter of the 28th September 2009, she details what she says those costs are and it is clear from the details of that letter that there certainly are legal costs set out. What is also clear is that there are other claimed costs with respect to the coffee machine and the insurance policy that in that letter Ms Clarkson also claimed. Today Ms Clarkson conceded that she is unable to obtain those costs by a decision of the Tribunal pursuant to section 91 of the Retail Shop Leases Act 1994. Ms Clarkson has pointed to no offer which has been made by her and which would be considered by the Tribunal under section 91 A of that Act. Therefore our ability to award costs is constrained by the terms of section 91 of the Act. The Tribunal is of the opinion that where costs are referred to in section 91 of the Act it refers to legal costs. The Tribunal is constrained in awarding costs by subsection 2 of section 91 of the Retail Shop Leases Act 1994 which is as follows:- “Each party to the dispute must bear the party’s own costs unless the relevant entity makes an order for costs under subsection (3) or section 91 A.” Ms Clarkson is unable to point to matter nor has she attempted to do so under subsection 3 of section 91 and as the Tribunal has already said, no attempt was made to rely upon any offer made under section 91 A of the Act. In those circumstances the Tribunal is of the opinion that it has no jurisdiction to award costs in favour of Ms Clarkson and her Application for costs is dismissed. We now turn to the Application made by the Respondent. The Respondent has filed an affidavit under the hand of Mr Baldwin dated 6 th October 2009 and has filed its own Application dated the same day. The affidavit and application rely upon a letter dated 15 April 2009. In the Tribunal’s opinion, section 91 A of the Retail Shop Leases Act 1994 is specific and requires that a written offer -- 2 of 3 -- Decision Dispute 2009/0014 3 made in accordance with that section is a written offer to settle the issues in dispute between the parties. We are not satisfied that the letter of 15 April 2009 does make an offer to settle the issues in dispute between the parties. Then the section, that is section 91 A (1) (a), refers to a written offer to settle the issues in dispute it is referring to the issues in dispute in the Retail Shop Leases dispute which is before the Tribunal. Secondly, the terms of the offer itself are, in the opinion of the Tribunal, one which could not be said a more favourable than the decision made by the Tribunal. The Tribunal awarded compensation in the sum of 30 thousand dollars to the claimant Ms Clarkson. The offer in the letter of 15 April 2009 does not specify an amount of money payable to Ms Clarkson; what it does is specify that as part of the offer the Respondent would return the boat which was paid to secure the business under the business sale contract. In the Tribunal’s opinion there is a difference between the return of an item of chattel in this case being the boat and the value which might be ascribed to it and the amount of compensation which was awarded by the Tribunal. In those circumstances, the Tribunal is of the opinion that the offer isn’t one which is of a comparable nature so that the offer can be said to be less or more favourable in terms of a comparison. More overly the offer also contemplates that there be payments to the Respondent monies under special conditions 3 and 4 of the business sale contract. Under any circumstances, that must mean that there would be a requirement to transfer money to the Respondent by the Claimant which must lessen the amount which otherwise might be said to be payable to the Claimant by the Respondent under item 3 of that letter. Therefore in the Tribunal’s opinion the reliance upon section 91 A of the Act fails and the Respondent’s Application for costs is also dismissed. K.F. WATSON Chair -- 3 of 3 --