Makris v Lafiatis and anor [2008] NSWADT 189 (4 July 2008)

Last Updated: 4 July 2008

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Makris v Lafiatis and anor [2008] NSWADT 189


DIVISION:
RETAIL LEASES DIVISION

PARTIES:
APPLICANT
Zois Makris

RESPONDENTS
George Lafiatis
Vicki Lafiatis




FILE NUMBERS:
075035

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
27 June 2008



DATE OF DECISION:
4 July 2008

BEFORE:
Rickards K - Judicial Member





LEGISLATION CITED:
Administrative Decisions Tribunal Act 1997

CASES CITED:
Daintree Café Pty Ltd v Jacfun Pty Ltd [2002] NSWADT 188
Registrar of Court of Appeal v Maniam (No.1)[1991] 25 NSWLR 459
Witham v Holloway [1995] 183 (CLR) 525

TEXTS CITED:


APPLICATION:
Contempt

MATTER FOR DECISION:
Principal matter


REPRESENTATION:
APPLICANT
J Theodoropoulos, solicitor
RESPONDENTS
No appearance


ORDERS:
The application for reports pursuant to section 131(1) of the Administrative Decisions Tribunal Act 1997 is declined.


Reasons for Decision:

REASONS FOR DECISION

1 On 24 May 2007 I made certain orders in these proceedings including the following:

"I order the law firm Neil Scott Lawyers to produce to the Tribunal within fourteen days all documents relating to the premises at 320 Bronte Road, Waverley relating to the lease agreement between the applicant and the respondent including lease documents, disclosures and stamp duty receipts but not including any confidential communications." ("Order 4")

and

"I order that the respondent provide vacant possession of the entire premises to the applicant forthwith." ("Order 9")

and

"In default of compliance with Order 9, I declare that the Applicant is entitled the payment from the Respondent or credit against rent payable to the Respondent pursuant to and during the currency of the lease agreement of a sum equivalent to all rent receivable by the Respondent from any other person occupying the premises." ("Order 10")

2 On 7 June 2007 the Respondents lodged an Appeal and a stay was subsequently given in respect of the Orders made, pending resolution of the Appeal.

3 The Respondents failed to appear at a directions hearing on 3 September 2007 and at that time the Appeal Panel noted that they had still not complied with its directions for evidence and the submissions to be filed in relation to the Appeal. Accordingly, the Appeal was listed on 18 September 2007 for dismissal on the ground of failure by the Respondents to prosecute the Appeal, and notice was given to the Respondents. At the hearing on 18 September 2007 there was no appearance by or on behalf of the Respondents and accordingly the Appeal was summarily dismissed.

4 The Applicant has now filed an Application seeking, amongst other things, a report from the Tribunal to the Supreme Court pursuant to the provisions of section 131(1) of the Administrative Decisions Tribunal Act 1997 ("the ADT Act") in relation to the respective alleged defaults by Neil Scott Lawyers of Order 4 and by the Respondents of Order 9.

5 The provisions of section 131(1) of the ADT Act deal with conduct which may constitute contempt of the Tribunal, and give the Tribunal discretion to report a variety of matters to the Supreme Court which may constitute contempt.

6 My function in relation to the subject application is to first make a decision as to whether the alleged conduct as presented to the Tribunal at this stage could amount to reportable conduct pursuant to section 131 of the ADT Act. There are no restrictions as to the parties who may be the subject of a report under section 131(1).

7 Neither of the defaults alleged by the Applicant fall within the specific categories of conduct set out in section 131(1) within sub-sections (a) through to (i); however, section 131(1)(j) provides that conduct may be reported by the Tribunal to the Supreme Court "if a person does any other thing that, if the Tribunal were a court of law having power to commit for contempt, would be contempt of that court"; this is the only route through which the alleged defaults can pass in order to be reported by the Tribunal to the Supreme Court pursuant to section 131(1).

8 I respectfully agree with the observations of Judicial Member Molloy in Daintree Café Pty Ltd v Jacfun Pty Ltd (2002) NSW ADT 188 , a decision which also involved consideration of section 131(1)(j), that:

"30 In the context of proceedings for contempt it is important, in my view, that the Tribunal be satisfied that the alleged contempt is of such a grave, serious and weighty nature that it would on balance require the Supreme Court to do something positive about it rather than treating the conduct as technical contempt which would be unlikely to attract a penalty (see, for example, Klewer v District Court of NSW CA 40801/97 (1998) NSWSC 396)."

9 In dealing with conduct alleged to fall within the "catch all" provisions of section 131(1)(j) of the ADT Act, the Tribunal first has to be satisfied that the requirements for contempt at common law are met and, if so, a second decision then has to be made as to whether the matter should be remitted to the Supreme Court (see the reference at paragraph 32 in Daintree Café Pty Ltd to the decision of the Court of Appeal in Registrar of the Court of the Appeal v Maniam (No.1) [1991] 25 NSWLR 459 setting out the appropriate procedure to be adopted in relation to references for contempt by District Court judges to the Supreme Court pursuant to section 203 of the District Court Act 1973).

10 In all proceedings for contempt of court, the contempt needs to be proved beyond reasonable doubt (see the decision of the High Court in Witham v Holloway (1995) 183 CLR 525, at paragraph 29).

11 Turning to the circumstances of this matter, it is noted that the stay which applied to the Orders previously made in these proceedings lapsed on 20 September 2007, being the date that the decision of the Appeal Panel was published. Accordingly, Order 4 effectively required compliance on or before 4 October 2007. The only evidence provided by the Applicant in support of his application that the Tribunal report the conduct of Neil Scott Lawyers to the Supreme Court for contempt, is the statement made by the Applicant in paragraph 41 of his affidavit sworn on 26 June 2008 in the proceedings which he has now brought in the Supreme Court that:

"Also by (letter) dated 14 November 2007 my solicitors wrote to Neil Scott Lawyers, the former solicitors for the defendants, seeking compliance with Order 4 made by the Administrative Decisions Tribunal. A copy of the letter appears at page 113 of Exhibit ZM-1".

12 I have not been provided with a copy of the subject letter. I also note that the letter was sent on 14 November 2007, which was approximately six weeks after the date when, by virtue of the lapsing of the previous stay, Neil Scott Lawyers were effectively required to comply with Order 4; this clearly raises the issue of whether there has actually been default. Furthermore, given the terms of the Application and the contents of the Supreme Court material provided, the Tribunal is presumably being asked to infer that Neil Scott Lawyers have neither provided the subject documents nor replied in any way to this unseen letter, but there is no evidence in this regard.

13 Since the time that Neil Scott Lawyers were instructed to act for the Respondent, it is also noted from the Supreme Court affidavit referred to above that the Respondents have apparently been represented, in chronological order, by John Orford & Associates Solicitors, by Southern Cross Realty International Pty Ltd, and by Spanko Soulos & Co Solicitors, and the extent to which those representatives may or may not have possession or control of the documents which are the subject of Order 4 are unclear.

14 Having considered the facts of this matter and the law and procedure to be applied as set out above, I am not satisfied to the requisite standard that the conduct of Neil Scott Lawyers could amount to contempt of the Tribunal, because notification of Order 4 was not apparently made to that firm within a period of time when compliance would have been possible, there is no direct evidence of the default alleged, and there exists some doubt in any event as to whether compliance would have been physically possible at the time of notification. I accordingly decline to report the conduct of Neil Scott Lawyers to the Supreme Court pursuant to section 131(1) of the ADT Act.

15 In relation to order 9, it is noted that provision for default of Order 9 was made within the terms of Order 10. This default provision within Order 10 gave the Applicant an alternative remedy. There may have been a number of reasons why the Respondents were not in a position to provide vacant possession of the entire premises to the Applicant, and hence Order 10 was made. Paragraph 40 of the Supreme Court affidavit refers to a letter being sent to the occupants of the first floor residence asking those occupants to move out, but neither a copy of that letter nor any other evidence upon this issue has been provided.

16 The dealings between the parties which have occurred after the lapsing of the stay, as they appear from the bare Supreme Court affidavit only and without any other evidence, tend to indicate that even if the Respondents’ conduct could be seen as constituting contempt of the Tribunal, it would not be of such a serious nature as to justify exercise of the Tribunal’s discretion to report such conduct pursuant to section 131(1)(j).

17 In the circumstances, I am also not satisfied to the requisite standard that the conduct of the Respondents as specified within the filed Application could amount to contempt of the Tribunal, and I decline to make a report to the Supreme Court concerning the conduct of the Respondents pursuant to section 131(1) of the ADT Act.