Harbourside Catering Pty Limited v TMG Developments Pty Ltd [2005] NSWADT 238 (20 October 2005)

Last Updated: 20 October 2005

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL RETAIL LEASES DIVISION

CITATION: Harbourside Catering Pty Limited v TMG Developments Pty Ltd [2005] NSWADT 238


PARTIES: APPLICANT
Harbourside Catering Pty Limited
RESPONDENT
TMG Developments Pty Limited



FILE NUMBERS: 055047

HEARING DATES: 30/09/2005

SUBMISSIONS CLOSED: 30/09/2005



DECISION DATE: 20/10/2005

BEFORE: Molloy GB - Judicial Member





LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Citadin Pty Limited v Eddie Azzi Australia Pty Limited & General Pants Co Pty Limited [2001] NSWADTAP 31
Gizah Pty Ltd v AXA Trustees Limited (No 2) [2001] NSW ADT 164 at [29]
Sotiropoulos v Mattana Coiffure Pty Limited (No. 2) (RLD)[2004] NSW ADTAP43.

APPLICATION: Costs

MATTER FOR DECISION: Costs


APPLICANT REPRESENTATIVE: APPLICANT
G M Colman, barrister

RESPONDENT REPRESENTATIVE: RESPONDENT
G McGrath, barrister

ORDERS: 1. The Applicant pay the costs of the Respondent from and including 29 April 2005 as assessed or agreed
2. No order for costs of the hearing 30 September 2005
3. Note: that the Applicant has withdrawn the proceedings in this Tribunal.


Reasons for Decision:

REASONS FOR DECISION

Issue for Determination

1 The Applicant seeks to withdraw its Application made to this Tribunal. I have no difficulty in acceding to that Application. It will form part of the formal orders at the end of this decision.

2 The Respondent seeks an order that the Applicant pay its costs of and incidental to the Application. That application for costs is opposed by the Respondent.

Background

3 The Applicant is the lessee/tenant of certain premises situate at Shop 1, Manly Wharf Shopping Centre, Manly Wharf in Sydney ("the premises") from which the Applicant conducts a seafood restaurant/brasserie under the name of "Cove" ("the business"). The Respondent is the lessor/landlord.

4 By Agreement dated 15 February 2005 ("the Agreement") the Applicant as vendor agreed to sell the business to Manly Cove Brasserie Pty Limited ("the purchaser"). The date for completion of the Agreement was stated to be 30 June 2005 but the sale was subject to the Applicant obtaining consent to the assignment of its lease with the Respondent to the purchaser. Importantly and significantly the consent was required to be obtained no later than 10 May 2005.

5 By letter dated 11 March 2005 the Respondent refused to grant consent to the assignment of the lease of the premises.

6 By formal Application filed in the Tribunal on 15 April 2005 the Applicant alleged that the Respondent was "withholding consent to assign unreasonably/ unlawfully" and sought a declaration that the Respondent "has wrongfully withheld consent having regards to the provisions of clause 39 of the Retail Leases Act 1994 as the purchaser has threatened to terminate the purchase"; an order requiring the Respondent "to provide consent" and "to do all things necessary to provide consent" and an order that the Respondent pay the Applicant’s "costs in relation to this matter on an indemnity basis".

7 The Applicant also filed a formal Application for Urgent Interim Order on 15 April 2005 seeking urgent orders that "directions be issued to bring this matter on for final hearing before 10 May 2005" and that the "proceedings be listed for final hearing before 10 May 2005". As part of that application the Applicant stated, inter alia, that the consent to the assignment "is required to be obtained no later than 10 May 2005".

8 The Registry listed the matter before Judicial Member Higgins on 21 April 2005, presumably urgently listed at the request of the Applicant. Judicial Member Higgins made the following orders/directions:

a) The Respondent "to file and serve a document that sets out its specific grounds for refusing to consent to the assignment and the facts on which those grounds are based by close of business tomorrow 22 April 2005".
b) The Applicant to "file and serve any additional evidence by 29 April 2005"
c) The Respondent to "file and serve any evidence it seeks to rely on by 13 May 2005"
d) The Applicant "to file and serve any evidence in reply by 17 May 2005"
e) Matter listed for hearing on 19 May 2005 for one day.

9 On 13 May 2005 the purchaser rescinded the agreement.

10 On 19 May 2005 the matter came before me for hearing. On that day I granted leave to the Applicant to file in Court a further Application for Urgent Interim Order and an amended Application under the Retail Leases Act. These documents recited basically what I have stated above, alleged that on 13 May 2005 the purchaser "purported to rescind the contract (the Agreement) in circumstances where they were not entitled to do so", made various allegations against the purchaser and then stated (importantly):

a) the Applicant "will begin proceedings in the Supreme Court of New South Wales with expedition, for orders invalidating the proposed rescission of the contract by Manly Cove and ancillary relief for unconscionable conduct by Manly Cove and its guarantors" and
b) the Applicant "seeks to have these proceedings (in this Tribunal) transferred to the Supreme Court of New South Wales pursuant to S76A Retail Leases Act to be heard at the same time as the Supreme Court proceedings as there will be common factual material going to the nature and effect of the unconscionable conduct of TMG which has acted in concert with Manly Cove and its guarantors to unfairly bring about the circumstances whereby the consent has not been given and the purported rescission has been given."

There is no need to refer further to the terms of the Amended Application.

11 The proceedings on 19 May 2005 were stayed, liberty granted to apply and the "costs of the Respondent be reserved".

12 By way of further background I was invited to consider the following:

a) by letter 5 April 2005 the Applicant’s lawyers wrote to the Respondent’s lawyers stating, inter alia as follows:

"... we write to put you on notice that in the event that the ADT finds that your client has wrongfully refused its consent as provided by section 39 of the Act our client will amend its current claim in the District Court to include a claim for damages of an amount equivalent to its legal costs in relation to our client’s ADT proceedings on an indemnity basis. In the event that our client’s purchaser terminates its agreement for the purchase of our client’s business before our client is able to obtains an order from the ADT requiring yours to consent and subsequently obtain such an order, our client will amend its current claim in the District Court to include a claim for damages of an amount equivalent to the sale price payable under that agreement."

b) By letter 18 May 2005 the Applicant’s lawyers wrote to the Respondent’s lawyers stating, inter alia that although their client’s "further evidence is in final preparation and will be used in both the ADT proceedings and the Supreme Court proceedings it is not yet finalised. We anticipate being in a position to issue the Supreme Court proceedings by no later than Monday 23 May 2005, if not before".
c) Various parts of the affidavit of Mr Nikopoulos sworn 19 May 2005, a director of the Applicant.
d) It is also important to understand that the Respondent complied with order 1 made by Judicial Member Higgins on 21 April 2005 in that (and it was common ground) the Respondent served upon the Applicant a document setting out "its specific grounds for refusing to consent to the assignment and the facts on which those grounds are based by close of business .... 22 April 2005". It was also common ground that the Applicant had failed to file and serve its evidence by 29 April 2005.

13 It is important (in my view) to recognise that the Respondent had not provided the Applicant with the grounds upon which it contended it could withhold consent until so ordered by Judicial Member Higgins on 21 April 2005 such that the Applicant was not able to know the circumstances asserted by the Respondent in support of its withholding of consent. The matter proceeded before me on that basis. It was not contended otherwise. I am therefore driven to conclude that the Applicant did not know whether the Respondent was entitled to withhold its consent to the assignment within the terms of Retail Leases Act Section 39 until at least the particulars were supplied pursuant to the orders made 21 April 2005. I understand those particulars were in fact supplied on 22 April 2005. It could not be contended, therefore, that the proceedings had not been legitimately commenced by the Applicant or were otherwise without merit – counsel for the Respondent did not contend otherwise.

Respondent’s Contentions

14 Counsel for the Respondent properly itemised and particularised, albeit orally, the "special circumstances" which he contended entitled the Respondent to a costs order. No party sought to review the now well established law relating to "special circumstances" which would entitle an Applicant for costs for a costs order in this Division of the Tribunal. Likewise there is no requirement for me to review in detail the principles that apply. The basic premise is that "in order to satisfy the test of "special circumstances" one must find circumstances that are out of the ordinary, but without having to be extraordinary or exceptional, and those special circumstances would warrant an award of costs". (Gizah Pty Ltd v AXA Trustee Limited (No 2) [2001] NSW ADT 164 at [29]. See also Sotiropoulos v Mattana Coiffure Pty Limited (No. 2) (RLD)[2004] NSW ADT AP 43).

15 The "special circumstances" asserted by the Respondent were as follows:

a) The Applicant’s lawyer’s letter 5 April 2005 (as relevantly quoted above) in that the Applicant anticipated that the purchaser might rescind the Agreement such that if the purchaser so did the Applicant would add that aspect to the District Court proceedings.
b) The Applicant failed to comply with the orders made by Judicial Member Higgins 21 April 2005 in that it failed to "file and serve its evidence by 29 April 2005", it being a recognised "special circumstance" that a failure to comply with an order of this Tribunal may well amount to a "special circumstance" warranting a costs order.
c) The Applicant secured the stay (on 19 May 2005) on the basis of paragraphs 18 and 19 of the Amended Application (set out above) in circumstances where the Applicant did not begin proceedings in the Supreme Court with expedition or at all and did not seek to have the Tribunal proceedings transferred to the Supreme Court in circumstances where it was alleged there would be common factual material where in my ex-tempore Judgment delivered 19 May I granted the stay to provide the Applicant with the opportunity of going to the Supreme Court and with a view to re-visiting the matter at large when the facts which post-dated the original application had been determined; and the Applicant had thrown away the opportunity afforded to it by the grant of the stay 19 May 2005.
d) The Applicant failed to inform the Tribunal of its failure to commence proceedings in the Supreme Court nor of its decision not to commence those proceedings.
e) The application made to withdraw the proceedings in this Tribunal was in itself a special circumstance – the Respondent relied on a passage in Citadin Pty Limited (No. 2) v. Eddie Azzi Australia Pty Limited & General Pants Co Pty Limited [2001] NSW ADT AP 31 at [6] where the Appeal Panel stated:

"(w)ithdrawal by an applicant of an application after a date for hearing has been set, and in circumstances where the respondent as incurred expense in briefing counsel, may be such a (special) circumstance".

16 I hope I have not done a disservice to the careful submissions of counsel for the Respondent by, perhaps, telescoping some of his submissions and merging others together.

Applicant’s Submissions in Reply

17 Mr Coleman for the Applicant submitted, and I think with considerable force, that when one looks at the words "special circumstances" one must look at each of those words. It is not just "special" but also one needs to look at each individual "circumstance" such that it requires an analysis of the circumstances to see if they are "special". There is probably nothing particularly remarkable about that submission except that it does assist in focusing the mind on the particular circumstances alleged to be special.

18 He went further: he submitted that the circumstances must be viewed as they related to the whole of what occurred between the parties, bearing in mind the commercial nature of the relationship and the commercial nature of this Division of this Tribunal.

19 In order to understand the whole of the commercial relationship Mr Coleman sought to rely on various portions of Exhibit "B", the affidavit of Angelo Nikopoulos sworn 19 May 2005, with a view to demonstrating the course of conduct between the Applicant and the Respondent from which I was invited to conclude that the Applicant truly endeavoured to resolve the issues between itself and the Respondent, particularly by numerous commercial meetings, such that one should conclude that the circumstances relied upon by the Respondent could not be properly categorised as "special" nor as warranting an order for costs. He submitted that the affidavit demonstrated that a great deal of work was done, there were many meetings, much correspondence, attendances upon the purchaser and as more and more facts emerged the Applicant reconsidered its position which ultimately crystalised on 13 May 2005 when the purchaser gave notice of rescission of the Agreement such that (it was contended) at that point there was no utility in seeking relief in this Tribunal and that in itself followed from the actions of the Respondent in failing to consent to the assignment.

20 He further contended that the proceedings were properly brought such that if the matter had gone on for hearing there would have been no special circumstances available to either party whatever the result. Unfortunately, due to the effluxion of time, and the ultimate rescission by the purchaser on 13 May, there was no utility in proceedings but in any event the Application was properly brought and sought appropriate relief in all the circumstances.

21 It was further submitted that the affidavit demonstrated that numerous meetings took place with a view to demonstrating to the Respondent that the assignee/ purchaser was a fit and proper person and in all the circumstances the Applicant did its best to obtain the Respondent’s consent. The rescission by the purchaser took away the foundation of the Application but that in itself was a natural consequence of the refusal by the Respondent to consent.

22 Importantly, it was contended that on 19 May 2005 the ratio behind the stay application was to enable the Applicant to think about going to the Supreme Court. It was submitted that the application for stay on that day was the only proper course of action for the Applicant. As at 22 April 2005 the Applicant knew of the reasons advanced by the Respondent for not consenting to the assignment – this resulted in a "flurry of meetings" with a view to satisfying the Respondent and obtaining the Respondent’s consent to the assignment. After all, this is a commercial Tribunal dealing with commercial disputes, the Applicant acted commercially in endeavouring to resolve the dispute and (presumably) should not be blamed or penalised for acting in that way.

Reasoning

23 The start point (in my view) is the commencement of the proceedings in this Tribunal. There is no doubt, and there was no argument put to the contrary, that the proceedings were properly commenced. As I understand the position (and one needs to bear in mind that this decision is based upon the arguments advanced at the costs hearing and one does not have the benefit of a full hearing on the merits (for the reasons set out above)) the Respondent did not provide the Applicant with its reasons for refusing to consent to the assignment. The Retail Leases Act Section 39 specifies that a lessor is entitled to withhold consent to an assignment but only in the specific circumstances set out in that section. It seems to me that a lessee seeking an assignment is entitled to know the reasons advanced by a lessor when a lessor refuses to consent to an assignment. No reasons were advanced, the lessee commenced proceedings seeking appropriate declarations and orders within the jurisdiction of this Tribunal (see section 72(1)(c)(iii)) and Judicial Member Higgins on 21 April 2005 ordered the Respondent to file and serve "a document that sets out its specific grounds for refusing to consent to the assignment and the facts on which those grounds are based ...". It is significant to note that the letter refusing consent to the assignment (dated 11 March 2005) does not set out any reasons – relevantly, that letter states ".... we advise that a meeting was held with the prospective assignee ... on the 7 March 2005. From the documentation provided and the (indecipherable) our meeting, we advise that in accordance with clause 39 of the Retail Leases Act 1994 (indecipherable) assignment of lease is not granted". Consequently, the lessee would not have known whether there were proper grounds advanced by the lessor for refusing consent to assignment under section 39 – in those circumstances it seems to me that the proceedings were properly commenced and the first order/direction made by Judicial Member Higgins on 21 April 2005 was an order/direction properly made to clarify/crystalise the issues between the parties.

24 Secondly, it is plain from the chronology that the Respondent complied with that order/direction. It must follow that as at 22 April 2005 the Applicant was aware of the grounds upon which the Respondent refused its consent to the assignment. No argument was advanced that the material provided by the Respondent was inadequate and it must follow that as at 22 April (or at least the following day) the Applicant would have been aware, and acutely aware, whether it had a case or otherwise.

25 There is no need for the purpose of this decision to examine whether the reasons advanced by the Respondent were valid reasons. The fact is that those reasons were accepted by the Applicant. The Applicant did not proceed further with the matter other than seeking a stay on 19 May 2005. The evidence seems to demonstrate that having received the reasons for refusal to consent the Applicant then endeavoured to satisfy the Respondent that it could meet the concerns of the Respondent. It was not argued that the efforts made by the Applicant to that end were not genuine efforts made in an attempt to resolve the issues and obtain the Respondent’s consent to the assignment.

26 But in my opinion that is not to the point. The plain fact was that the parties were clearly on notice, by the terms of the Agreement, that the purchaser could rescind the Agreement at any time from 10 May 2005 if consent to the assignment to the purchaser was not forthcoming prior to 10 May 2005. As at 22 April 2005 the Applicant was fully aware of the reasons for refusal to grant consent. Time was running. Although it is laudable that the Applicant (and no doubt the purchaser too) was attempting to commercially resolve the issue, the plain fact is that unless the issue was resolved by 10 May then the purchaser could rescind. In fact it so did on 13 May 2005. No argument was advanced that the notice of rescission was not valid.

27 During the course of argument I raised with counsel for the parties the similarity (as I saw it) between this case and a motor accident case, in the latter of which one works to time constraints such that if the issues are not resolved then the injured person must commence proceedings within a certain time frame otherwise they become statute barred. Many injured persons, and their lawyers, have been caught out by attempting to resolve issues of negligence and quantum with third party insurers and then finding that their case is statute barred. Good advice and alert procedures require an injured person to commence the proceedings within time and otherwise comply with the legal requirements for advancing their case and at the same time continue negotiations with a view to resolving the matter without going to hearing. Legal best practice (in those circumstances) avoids being locked out of recovery against the third party insurer thereby preserving the rights of the injured person yet at the same time allowing, and indeed reinforcing, the ability of the injured person to negotiate a settlement.

28 By analogy the Applicant was aware that the sub-strata of this case would be removed if consent was not forthcoming by 10 May and the purchaser rescinded. The time limit was crucial. It is laudable and not a matter for criticism that the Applicant sought to resolve the matter by negotiation. But the plain fact is that as at 22 April 2005 the reasons for the Respondent’s refusal to consent were spelt out and the Applicant could have moved the Tribunal to bring the hearing date forward as a matter of urgency and seek to obtain an appropriate declaration/order under Section 72(1)(c)(iii) prior to 10 May 2005, yet there was not the slightest evidence that the Applicant wished or sought to embark upon that course of action but rather elected to negotiate with the purchaser and Respondent, thereby leaving itself open to the date 10 May 2005 being passed and the purchaser giving its notice of rescission of the Agreement.

29 I can only conclude that at some time after 22 April 2005 the Applicant formed the view that the reasons provided by the Respondent were good and valid reasons such that seeking to bring the matter on for an early hearing prior to 10 May 2005 would not have been productive and would not have resulted in an order in the Applicant’s favour. I am fortified in that opinion by the failure of the Applicant to comply with the second order/declaration made by Judicial Member Higgins to the effect that the Applicant "file and serve its evidence by 29 April 2005". Furthermore the lengthy affidavit of Mr Nikopoulos sworn 19 May 2005, although it sets out the history of the matter, does not assist me in forming a different conclusion bearing in mind that as at 13 May 2005 the purchaser had rescinded the agreement.

30 Avoiding the commercial attempts by the Applicant to resolve the matter and looking at it purely from the point of view of the legal proceedings in this Tribunal, it must have been plain by 29 April 2005 that the Applicant was not only not going to comply with the orders of Judicial Member Higgins 21 April 2005 but that its case against the Respondent, having regard to the reasons advanced for refusal of consent to assignment, was (at best) thin and (in reality) not sustainable.

31 When the matter came before me on 19 May 2005 for hearing the Applicant applied for a stay of proceedings on the basis, inter alia, that there were allegations of fact which post-dated the filing of the Application (15 April) and the Applicant proposed to "begin proceedings in the Supreme Court ... with expedition, for orders invalidating the purported rescission of the (Agreement) ... and ancillary relief for unconscionable conduct ..." and the Applicant would seek to have the proceedings in this Tribunal transferred to the Supreme Court "to be heard at the same time as the Supreme Court proceedings as there will be common factual materiel (sic) going to the nature and effect of the unconscionable conduct of (the Respondent) which has acted in concert with (the purchaser) ... to unfairly bring about the circumstances whereby the consent has not been given and the purported rescission has been given." The plain fact is that the Supreme Court proceedings were not commenced, no application was made to transfer the Tribunal proceedings to the Supreme Court and I accept the submission by counsel for the Respondent that the Applicant neither informed the Tribunal nor the Respondent of its decision not to commence those proceedings nor its failure to commence those proceedings.

32 In my opinion (however) the critical date was 22 April 2005 (or shortly thereafter) when the Applicant was informed in detail of the Respondent’s reasons for not granting consent to the assignment. The Applicant then had the opportunity, and had a concomitant obligation to the Respondent and the Tribunal, to focus its attention on the reasons and to form the opinion on whether or not the proceedings in this Tribunal should proceed. Had the Applicant promptly formed the opinion and notified the Tribunal and the Respondent that having regard to the reasons advanced the proceedings in this Tribunal would be withdrawn, then in my view it could not be contended by the Respondent that it would have been entitled to a costs order upon the withdrawal of the proceedings in all the circumstances, the proceedings having been properly commenced and the Respondent not providing the Applicant with its reasons for refusal until 22 April 2005 after the proceedings had been commenced. The mere withdrawal of proceedings does not necessarily sound in a costs order – if proceedings are withdrawn for a valid reason (as would have been the case here had they been properly withdrawn shortly after 22 April 2005) then in my opinion a costs order would not follow particularly where, as in this case, the reason for the commencement of the proceedings and the subsequent withdrawal was peculiarly caused by the actions of the Respondent in not providing reasons sufficient to enable the Applicant to determine whether or not there was a case under Section 39. In other words, there was a valid issue to be tried and the Respondent could not complain, it not having supplied the reasons.

33 However, the situation changed dramatically on, or shortly after, 22 April 2005. At that point of time the Applicant was aware of the reasons advanced by the Respondent and could have formed a positive or negative view of its chances of success in this Tribunal. That would not have stopped it commencing proceedings in any other jurisdiction as it may have been advised; but in this Tribunal the situation was clear and should have been properly addressed by the Applicant in discharge of its duties, not only to this Tribunal but also to the Respondent. Parties to litigation have obligations, not only to the Court or Tribunal, but also to each other (a principle oft forgotten) and in this case, although the Applicant no doubt wished to continue to explore the commercial possibilities of settlement and also to preserve its rights, none of those would override (in my opinion) the obligation to inform the Tribunal and the Respondent that it was not proceeding with the matter in this Tribunal.

34 If this view requires reinforcement that obligation arose not only as at 22 April 2005 (or shortly thereafter) but most definitely as at 13 May 2005 when the purchaser rescinded the Agreement. Counsel for the Applicant argued that thereafter the proper course for the Applicant was to preserve its position and legal alternatives available to it. That may be laudable from the point of view of the Applicant but certainly not from the point of view of the Respondent.

35 For the purpose of this decision there is no need for me to review all the attempts made by the Applicant to resolve the issue of consent to assignment nor is there any need for me to make any comment about the approach taken by the Respondent and/or the approach taken by the purchaser. I am content to confine my decision to the actions taken in this Tribunal, an approach consistent with the decision of the Appeals Panel in Sotiropoulos at [33].

36 It is true that the categories of "special circumstances" are not closed. It is also true that one needs to find, not only "special circumstances" but (if one is to make a costs order) special circumstances that warrant a costs order being made. I am satisfied that the circumstances that arose subsequent to 22 April 2005 constitute special circumstances that warrant an order for costs being made.

37 The next question is: what should be the extent of that cost order. Costs orders can be made in relation to the whole or any part or parts of legal proceedings. The Respondent’s claim is for the costs of the whole of these proceedings. In my opinion that argument cannot be sustained once it is accepted that the proceedings were properly brought and the Respondent did not provide reasons until so ordered on 21 April 2005. To that point of time it seems to me that no special circumstances have been demonstrated. But from 22 April 2005 (or shortly thereafter, in order to give time for consideration) the actions of the Applicant and the events that I have set out above in my opinion constitute special circumstances that do warrant an order for costs in favour of the Respondent. The chronology tendered by the Respondent, and not challenged by the Applicant as to its content, demonstrate that as and from 29 April 2005 the Applicant sought to proceed with the matter, on that day writing to the Respondent advising that further evidence would not be served until 2 May 2005 and that the Applicant would be issuing a subpoena to obtain certain additional evidence. It is plain that at least 29 April 2005 the Applicant sought to proceed with the matter, knowing full well that the Respondent was legally represented, had counsel briefed and would be incurring further costs and expenses in relation to the issues in this Tribunal. In my opinion, therefore, the Applicant should be ordered to pay the costs of the Respondent from and including 29 April 2005, being a date when the Applicant made it plain that it was not going to withdraw the proceedings having regard to the reasons advanced by the Respondent for its refusal to consent in circumstances where the Applicant could have prior to 29 April 2005 formed the view that the further conduct of the proceedings was not warranted having regard to those reasons. In my view this is not a harsh conclusion because the Applicant was always aware that 10 May 2005 was a critical date yet no attempt was made by the Applicant to bring the hearing forward such that it is not unreasonable to conclude that even if the hearing had been brought forward to a date before 10 May 2005 the Applicant’s case was then unsustainable.

Further Observation

38 There is no doubt that the parties knew, and the Applicant in particular was acutely aware, that consent had to be forthcoming to the assignment prior to 10 May 2005, otherwise the purchaser was thereafter entitled to rescind the agreement. 10 May was a critical date. The notes made by Judicial Member Higgins on 21 April 2005 contain this observation:

"Note: required to have matter heard urgently as sale of business is subject to assignment – this to be done by 10 May".

39 For reasons not clear the timetable fixed by the Judicial Member required compliance of various steps after 10 May and the hearing to take place on 19 May 2005. I have absolutely no doubt that, and notwithstanding the note (set out above) the list in this Tribunal could have been appropriately juggled in order to accommodate an urgent hearing if the parties had pressed for such a hearing bearing in mind the particular circumstances. I can only conclude that the parties did not press for a date before 10 May (for whatever reason) – there is nothing in the note to indicate (other than the matter was to be "heard urgently") that the parties, or at least the Applicant, sought to have their rights determined prior to the critical date. There was no sufficient evidence before me that would have gone to an argument to the effect that the Applicant simply could not get a hearing date before 10 May had it so wished.

Orders

1. The Applicant pay the costs of the Respondent from and including 29 April 2005 as assessed or agreed.

2. No order for costs of the hearing 30 September 2005.

3. Note: that the Applicant has withdrawn the proceedings in this Tribunal.