Sotiropoulos v Mattana Coiffure Pty Limited (RLD) [2004] NSWADTAP 23

Appeal Panel - Internal

CITATION: Sotiropoulos v Mattana Coiffure Pty Limited (RLD) [2004] NSWADTAP 23 APPELLANT PARTIES: Vlasios Vasilios Sotiropoulos RESPONDENT Mattana Coiffure Pty Limited FILE NUMBER: 049018 HEARING DATES: 20/05/2004 SUBMISSIONS CLOSED: 05/20/2004 DATE OF DECISION: 06/08/2004

Mattana Coiffure Pty Limited [2003] NSWADT 210; Mattana Coiffure Pyt Limited v Sotiropoulos ( No 2) [2004] NSWADT 80 DECISION UNDER APPEAL: BEFORE: O'Connor K - DCJ (President); Molloy GB - Judicial Member; O'Neill A - Non Judicial Member CATCHWORDS: interim order - leave to appeal out of time MATTER FOR DECISION: Preliminary matter FILE NUMBER UNDER APPEAL: 035024 DATE OF DECISION UNDER APPEAL: 04/23/2004 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 CASES CITED: Mattana Coiffure Pty Limited v Sotiropoulos [2003] NSWADT 210 Mattana Coiffure Pty Limited v Sotiropoulos (No 2) [2004] NSWADT 80 Re Middle Harbour Investments, NSWCA, unreported 15 December 1976 Victoria Avenue Nominees Limited v Aras [2003] NSWADTAP 15 APPELLANT REPRESENTATION: G Burton, barrister RESPONDENT M Darke, barrister ORDERS: Orders made 20 May 2004; 1. Appeal in relation to decision delivered 9 September 2003:; Leave to appeal out of time refused. Appeal struck out.; 2. Appeal in relation to decision delivered 23 April 2004:; Application for stay of compensation orders (orders 5-11) pending determination of appeal refused.; 3. Respondent's application for costs of today's proceedings reserved.

DELIVERED EX TEMPORE REASONS FOR DECISION Background 1 On 12 May the appellant filed a notice of appeal pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (the Act) which alleged a number of errors of law in the reasons given in proceedings before the Retail Leases Division of the Tribunal. 2 The lodgment of the appeal followed the publication of reasons for decision dated 23 April 2004 in the matter of Mattana Coiffure Pty Limited v Sotiropoulos (No 2) [2004] NSWADT 80. The lessee company, which conducted a hairdressing business in the Mosman shopping district, was successful in obtaining various orders against the lessor because of the lessor's unlawful conduct. There had been an earlier set of reasons issued by the Tribunal dated 9 September 2003, published as Mattana Coiffure Pty Limited v Sotiropoulos [2003] NSWADT 210. 3 The appellant applied for an urgent interlocutory order that the orders for compensation (orders nos. 5-11) made no 23 April 2004 be stayed pending the determination of the appeal. The power to stay an order of the Tribunal pending appeal is conferred on the Appeal Panel by s 116 of the Act. 4 The stay application came on for hearing before the Appeal Panel on 20 May 2004. The respondent/lessee opposed the application, and also objected to the scope of the notice of appeal. 5 The notice of appeal sought to put in issue the reasons given in the set of reasons dated 9 September 2003. The respondent submitted that the appeal was out of time in respect of those reasons and should be struck out. 6 The Appeal Panel's jurisdiction to entertain appeals is conferred by the Retail Leases Act 1994, s 77 which provides: '(1) A party to any proceedings (other than a party to proceedings for an unconscionable conduct claim) in which the Tribunal makes an order or other decision under this Act may appeal to an Appeal Panel of the Tribunal under Part 1 of Chapter 7 of the Administrative Decisions Tribunal Act 1997 .' 7 Section 112, the opening provision of Part 1 of Chapter 7 of the Act, states relevantly: '(1) For the purposes of this Part, an appealable decision of the Tribunal is a decision of the Tribunal (or a decision that is taken to be a decision of the Tribunal) made in proceedings for: (a) an original decision where the enactment under which the Tribunal has jurisdiction to make the decision expressly provides that the decision may be appealed to an Appeal Panel under this Part, or (b) ….' 8 The Act, s 113 provides, relevantly: '(1) A party to proceedings in which an appealable decision of the Tribunal is made may appeal to the Tribunal constituted by an Appeal Panel. … (3) An appeal under this Part must be made: (a) within 28 days after the Tribunal furnishes the party with written reasons for the appealable decision under section 89, or (b) within such further time as the Appeal Panel may allow.' 9 The appellant contended in reply that the appeal as it related to the reasons published on 9 September 2003 was not out of time, as those reasons did not contain an 'appealable decision' for the purposes of s 113(3)(a). Therefore the whole appeal was in time, as it was filed within 28 days of 23 April 2004. If that view were not to be accepted, the appellant applied for leave to appeal out of time in respect of the reasons delivered 9 September 2003. 10 The Appeal Panel rejected the appellant's principal and alternative submissions, upholding the respondent's objections. Accordingly the notice of appeal was dismissed to the extent that it raised errors of law in relation to the reasons published on 9 September 2003. 11 The Appeal Panel went on to consider the stay application as it related to the orders made on 23 April 2003. It refused the application. 12 The Appeal Panel gave ex tempore oral reasons. The appellant requested reasons in writing, as provided by s 89(3) of the Tribunal Act. These written reasons are provided in response to that request. What follows is an expanded version of the oral reasons given on the day. Whether Out of Time and the Grant of Leave 13 The first question is whether the decision on 9 September was an 'appealable decision' within the meaning of s 112 of the Act, the particular provision relevant to these proceedings being s 112(1)(a). The reasons published on 9 September 2003 are clearly interlocutory in the sense that they do not finally dispose of the action. The reasons commence by outlining the nature of the orders sought by the lessee – monetary orders and conduct orders. The nature of the lessee's business is described. The details of the lease and the premises are given. The history of the tenancy is described. The nature of the allegations is outlined. The reasons recount the history of the disputes between the lessee and the lessor over the impact of rebuilding works in other parts of the building that remained under control of the lessor and were not the subject of lease. Findings are made as to omissions by the lessor amounting to contravention of the law governing retail leases. At [33] of the reasons, the Tribunal states: 'It is the respondent's failure to take these steps which render the respondent liable to compensate the applicant.' 14 The reasons then go on to deal with the question of what steps the lessor should now take to remedy the breaches. The reasons at this point seek to indicate to the lessor what steps should be taken to redress the problems being suffered by the lessee in carrying on their hairdressing business as a consequence of the lessor's rebuilding works. It is clear that the Tribunal did not see itself as in a position to dispose finally of the matter until the rebuilding works had concluded, at which point final orders could be entered. It is also clear that the Tribunal was in these reasons seeking to encourage the parties to resolve the dispute between themselves. 15 The reasons concluded as follows: '50 I am not unmindful of the possibility of a continuing downward spiral in trade if the building interference continues for much longer, and so direct that the matter be listed before me on 15 September 2003 at 10am for directions. If the temporary toilet facilities have been made adequate by then, I will make an order for the payment of damages in line with the above reasoning, and will make such building rectification orders as the parties then propose. I note that the parties will, in the interim period, have an opportunity to draw and agree on specifications for such rebuilding work, and if the parties are not agreed by that next date, I will simply, on that day make appropriate orders on the basis of whatever further detailed submissions about the manner of rectification which the parties wish to place before me. 51 It is obviously necessary that the matter be brought to a close, and so I also observe that if on 15 September 2003 at 10am the Applicant indicates that it is not satisfied with the temporary facilities, I will rule on those by having a further view and if I find the facilities not to be satisfactory, will give the applicant leave to produce further evidence to establish it's loss on from 1 July 2003 (including loss of value of goodwill), and would also propose to hear argument on what power I have to force early completion of the building arrangements, such as ordering a waiver of rent. 52 The cost of proceedings such as these is always of concern. This is especially in a matter such as this when, after 3 days hearing, the issue between the parties cannot be regarded as concluded, and will not be until the building is completed. 53 It also appears to be appropriate to indicate that by extending the sitting hours, the hearing of the matter and submissions, in effect, took up four days of hearing time. 54 I will also on 15 September 2003 at 10am, give directions for the making, and hearing of submissions on the question of costs which (at my direction) was not argued at the hearing.' 16 At the appeal hearing the parties advised that some progress was made in resolving what steps should be taken by the lessor. In its decision of 23 April 2004 the Tribunal opened with the following remarks: '1 In my 9 September 2003 reasons I made it clear that the Respondent should effect urgent remediation of the temporary facilities, and the Respondent did so by the end of that month. It transpired that there needed to be further Development Approval from the Mosman Council to allow the toilet and laundry facilities for the leased premises, as initially proposed, to be built. That approval, at the date hereof, is not yet to hand and the Works are still not completed. 2 I must say that many of the Orders which I make today were made as a result of negotiations between the parties, and I congratulate them on taking those steps, so bringing this difficult matter to some finality. 3 I will now deal with the aspects of my Orders which were not agreed, not necessarily in numerical order.' 17 The Tribunal concluded by making the following Orders: ' ORDERS Building works orders 1. The Respondent use all reasonable endeavours to obtain approval for Development Application 8.2003.408.1, in its current form or as amended only so far as is necessary to satisfy the requirements of Mosman Council ("Development Application"), from Mosman Council at the earliest possible time. 2. The Respondent, within 8 weeks of obtaining approval for the Development Application construct and rectify treatment room 2 (excluding joinery) in accordance with the plans and schedule of fittings provided by Michael Sandberg, SMS Architects and the four paint finishes specified in the applicant's schedule of finishes attached to these orders and marked "A" ("building works"). 3. The Respondent ensure that the premises are secure and locked and provided with adequate toilet facilities throughout the building works. 4. The Respondent, within nine weeks of obtaining approval for the Development Application provide the Applicant with certifications: i) from a practising structural engineer with corporate membership of the Institute of Engineers Australia that the excavation works have either left the existing wall at the back of treatment room 2 in structurally sound condition, or that underpinning or similar works have been effected to render it structurally sound; and ii) from an accredited certifier, qualified to make these assessments and accredited under section 109T of the Environmental Planning and Assessment Act 1979, that the building works have been completed in accordance with order 2 above, the Building Code of Australia and any development consents entitling those works to be carried out. Compensation orders 5. The Respondent pay the Applicant $37,900 in compensation for the period from 5 September 2002 to 23 September 2003. 6. The Respondent pay the Applicant compensation in the sum of $1,803 a day for: i) three days lost trading on 24-26 September 2003 by closure of the salon during the installation of the temporary facilities, being $5409; and ii) each additional day of trading lost from 6 April 2004 until the completion of the building works by closure of the salon, payable at the end of each week in which a day or more of trading is lost by cheque delivered to the leased premises during the trading hours of the applicant's business or as otherwise agreed between the parties. 7. The Respondent pay the Applicant compensation in the sum of: $4,284 for the loss of the use of Treatment Room 2 from 24 September 2003 until 6 April 2004 calculated at the rate of $153 per week; and i) $153 per week or part thereof for further loss of Treatment Room 2 from 6 April 2004 until the completion of the building works, payable at the end of each week by cheque delivered to the lease premises during trading hours of the applicant's business or as otherwise agreed between the parties. 8. The Respondent pay the Applicant an agreed amount of $4,350 ($4,785 less GST) for the Applicant to replace the joinery (only) in Treatment Room 2. 9. The Respondent pay the Applicant interest on the compensation payable under order 5 only at the rate of 6.57 per cent, being $2,292. 10. The amounts referred to in orders 5-9 (excluding orders 6(b) and 7(b)) being the sum of $54,235, including interest, be paid within 28 days from the date of this order. Costs order 11. The Respondents pay one half of the Applicant's costs of preparation for trial up to the commencement of but not including the actual conduct of the hearing of 22 July and is to pay all of the Applicant's costs (including preparation) for the conduct of the matter on 23 and 24 July and all subsequent appearances in the matter including appearance of 6 April 2004, all on a party/party basis. Liberty to apply 12. Liberty to either party to apply on 7 days' notice. Declaration 13. The Lease granted by the Respondent to the Applicant comprised an exclusive right to occupy the ground floor built area as identified by the highlighter outlined area shown in the plan attached to this order, but noting that the plan does not accurately reflect the new laundry and new WC because that is still to be built. The lease further included a shared right to park a vehicle in Carney Lane and a shared right of access to the rear lane Council car park identified in the plan as existing garage as limited by clause 3.4 and 11.3.2 of the lease.' 18 Our view is that the reasons published on 9 September 2003 constituted an appealable decision within the meaning of the Act. 19 It is not necessary for a decision to be accompanied by final orders disposing of the proceedings in order to be a decision within the meaning of the provision. That was the situation here where, on the face of the material, a decision as to what is conventionally described as liability was made and questions of consequential orders and quantum were left to a further decision. 20 The scheme of the Act plainly supports the proposition that decisions short of decisions that make final orders disposing of the proceedings fall within the scope of the appeal right. See for example sub-section (2) of s 112: '(2) Without limiting subsection (1), the following decisions are also appealable decisions: (a) a decision of the Tribunal that a person is not entitled to apply for an original decision or for the review of a reviewable decision, or (b) an order of the Tribunal under section 71 (2) that the parties to proceedings before it may not be represented by an agent of a particular class, or (c) a decision of the Tribunal refusing an application by a person to be made a party to proceedings before the Tribunal.' 21 It follows therefore that we need to deal with the notice of appeal as it relates to the first decision on the basis that it is filed out of time and the question then is: what are the criteria that are relevant to the exercise of the discretion that the Appeal Panel has to allow an appeal out of time. As Mr Darke pointed out, the ordinary practice is that appeals out of time will not be entertained. The criteria that her Honour Judge Latham DP set down in Lupevo Pty Ltd t/a Ampol Nabiac v Bree [2002] NSWADTAP 9 at [6] appear to us to be relevant to the present proceedings, i.e. · The reason for the failure to lodge the appeal. · The length of the delay in lodging the appeal. · The diligence shown by the appellant in lodging the appeal after it came to his notice that were circumstances justifying an appeal. · The nature of the decision below and the consequences of the decision upon the appellant's rights. · The adequacy of the information conveyed to the appellant at the time the decision was notified to him, both as to the reasons for decision and of the appellant's entitlement to appeal. · The extent of the appellant's knowledge of the relevant statutory provisions. · The possible prejudice to the respondent to the appeal. 22 The lessor has been legally represented throughout this dispute and in the proceedings before the Tribunal. The only explanation given by Mr Burton for the lessor was that he had misapprehended the nature of the appeal right. There were no steps taken in the period immediately after 9 September 2003 to preserve any appeal rights pending final order. We appreciate that an unsuccessful party might want to wait until the final determination of proceedings to decide whether decisions along the way, and particularly decisions as to liability, should be appealed. But the scheme of the Act is one where time begins to run as decisions are made. In this case substantial negotiations occurred between the parties over the summer as rebuilding continued. The lessee/respondent's participation or otherwise in those negotiations may well have been affected had it known that an appeal against the ruling of 9 September 2003 might be pressed. 23 We are not satisfied that any factors have been put before us sufficient to justify granting leave out of time. 24 In that regard, I think we should refer at this point to one submission - that, basically, the second decision is inextricably linked to the first decision and, as there is no question that it is open to the appellant to proceed with the appeal in respect of the second decision, it therefore follows that it is in the interests of justice that the first decision be placed in issue. In our view, it is not unusual for there to be two decisions in proceedings, one that goes to liability and one that goes to quantum or orders and that, on occasions, parties choose only to appeal as to the second and not as to the first. 25 It is for the Appeal Panel at any further hearing of appeal in relation to the second decision to form its own views as to what extent it needs to inform itself by reading the first decision as to the approach taken in the second decision. Our view today is that the only decision that remained appealable within time was the second decision. There has been an appeal lodged in time in regard to that decision. Stay Application 26 We are governed by the principles that are enunciated in detail in the Supreme Court decision to which the lessee/respondent referred - Alexander v Cambridge Credit Corporation Ltd (1985) 2 NSWLR 685 at 694-695. Essentially a successful party should not be deprived of the fruits of their judgment pending determination of the losing party's appeal. That principle is obviously subject to exceptions. The onus lies on the unsuccessful party to demonstrate why one or other of those exceptions should be adopted. 27 A frequently-cited modern statement of the approach to be taken is found in the dicta of Mahoney JA in Re Middle Harbour Investments, NSWCA, unreported 15 December 1976: 'Where an application is made for a stay of proceedings, it is necessary that the applicant demonstrate an appropriate case. Prima facie, a successful party is entitled to the benefit of the judgment obtained by him and is entitled to commence with the presumption that the judgment is correct. These are not matters of rigid principle and a court asked to grant a stay will consider each case upon its merits, but where an applicant for a stay has not demonstrated an appropriate case but has left the situation in a state of speculation or of mere argument, weight must be given to the fact that the judgment below has been in favour of the other party.' Adopted and applied: Victoria Avenue Nominees Limited v Aras [2003] NSWADTAP 15. 28 The appellant's primary submission related to the financial circumstances of the respondent. It was contended that any compensation paid now pursuant to the compensation orders might not be able to be recovered if the appeal was successful. We have had material as to the financial circumstances of the successful party placed before us. Some of that material is derived from the exhibits in the underlying proceedings; some has been supplied by the appellant; and another part of the material, Confidential Exhibit B, was supplied by the respondent. 29 In summary, our view is that there are sufficient resources available to the respondent to meet any likely outcome of the appeal as it presently stands - an appeal in respect of the compensation orders. We note that the business is a modestly successful business if the figures provided in the Confidential Exhibit are to be accepted. The primary income of the principal operator of the business is derived from within the employee payments. The business is operating at a significant scale; and it is subject to a lease which will continue to run until next year. There is no dispute that rent has always been paid on time. In our view, there is not any significant risk of inability to pay in the event that some or the whole of the compensation order is reversed on appeal. 30 It is also appropriate, I think, to have some regard to the degree of arguability of the appeal. If the respondent's foreshadowed submission as to the orders essentially being by consent is correct, then it is an appeal with low prospects of success. On the other hand, if that is not right, it may be a different situation. But as the matter presently stands, the circumstances appropriate to waive the application of the usual rule have not been demonstrated. So the application for a stay on the material as it stands today is refused. Costs of Today's Proceedings 31 There was an application from the respondent. Costs reserved. Order 1. Appeal in relation to decision delivered 9 September 2003: Leave to appeal out of time refused. Appeal struck out. 2. Appeal in relation to decision delivered 23 April 2004: Application for stay of compensation orders (orders 5-11) pending determination of appeal refused. 3. Respondent's application for costs of today's proceedings reserved.

DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated.