Booker v Nagy [2004] RSLT 13

1 [2004] RSLT 13 THE RETAIL SHOP LEASES ACT In the matters of Dispute No 22/04 ROSEMARY CLORINE BOOKER - Claimant - and – MARY NAGY of MARY NAGY ENTERPRISES & RALTOWN - Respondent Coram: A Forbes (CHAIRMAN) DECISION Given in Brisbane on Monday 16 August, 2004. -- 1 of 3 -- 16.8.2004 2 Decision – Booker-v-Nagy THE CHAIRMAN: Section 3. The Tribunal may make an Order for costs if it is satisfied, firstly, that the Dispute is frivolous or vexatious, or that the party has incurred costs because another party sought an adjournment of the hearing without giving reasonable notice, or contravened a procedural requirement, or sought the inclusion of another party. I’ve heard submissions in this matter from both parties. I do not accept the submission of Mr Ryan that costs are confined to the jurisdiction of a full Tribunal. He gives no authority for such a proposition. A directions hearing is conducted by a Tribunal Legal Member sitting alone, and in this instance the application for costs is incidental to the parties’ application and it seems to me that s.66.1 gives authority to a Tribunal Member sitting alone to entertain an application for costs. In this matter, the respondent landlord seeks the costs of preparation of its case in the sum of $3,355 for his professional charges. The respondent says that the fees are up to 11th June 2004. There was a directions hearing on 27 April 2004, when formal directions were made and a hearing date was appointed for 6 July. On 23 June, that is, two weeks before the hearing, the solicitor who now appears for the tenant, Ms Booker, sent a letter to the solicitors for the landlord notifying them that the tenant had withdrawn her claim. The landlord says that he has been able to avoid the payment of Counsel who had been briefed, Counsel’s costs, but that his own professional charges are in the sum of $3,355. Both representatives have argued that parts of the Notice of Dispute and the Amended Notice of Dispute are outside the jurisdiction of the Tribunal. However, there was a guarded concession that at least Issues 2, 3 and 4 are prima facie within the Tribunal’s jurisdiction. Ms Booker says that she withdrew because she could not afford to continue. No other reason has been given. In my view the respondent landlord has incurred costs wasted because of a late notification of a withdrawal of the final hearing set down for 6 July, without giving reasonable notice within the meaning of s.91.3(b)(i) of the Retail Shop Leases Act. Now, these costs include the preparation of the respondent’s evidence in chief and reply to the claimant’s material and the expenses of travel to obtain a statutory declaration. However, I am aware of the tenant’s financial situation and it seems to me that reasonable costs in this matter should be in the sum of $1500, so I order: 1. That the tenant do pay the costs of the respondent wasted in this matter in the sum of $1500 in the following manner: As to $500, within 28 days of today; as to a further $500, on or before 16 th October; and as to the final $500, on or before 16 December, 2004. A. Forbes -- 2 of 3 -- 16.8.2004 3 Decision – Booker-v-Nagy Chairman -- 3 of 3 --