Dimozantos and anor -v- Deutsche Property Funds Management Ltd (RLD) [2003] NSWADTAP 13

Introduction 1 This appeal arises under the Retail Leases Act 1994 (RLA). It is made pursuant to s 113 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act), read in conjunction with s 77 of the RLA. 2 The appeal is brought by Mr and Mrs Dimozantos (the appellants) who are the lessees of shop premises in a retail shopping centre in Port Macquarie from the respondent. They entered into occupation and commenced conducting a restaurant business in 1995 on the basis of a five year lease; the lease was renewed for a further five years in August 2000. 3 In proceedings commenced before the Retail Leases Division of the Tribunal on 19 June 2002, they claimed various forms of relief against the lessor, the respondent to this appeal. The respondent applied for dismissal of the proceedings principally on the ground that the claims had been the subject of mediation and settlement in April 2002. 4 The application was granted. The Tribunal also ordered the appellants to pay the respondent's costs of the proceedings, exercising the special discretion to award costs found in s 88 of the Tribunal Act: see Dimozantos & anor Trading as D C & S F Dimozantos -v- Deutsche Property Funds Management Ltd [2002] NSWADT 221. The appellants appeal against those decisions. 5 They claimed that the Tribunal erred in declining to exercise jurisdiction. In particular they sought to rely on a certificate of failed mediation issued by the Retail Tenancy Unit in June 2002 as demonstrating that the matter had not been settled. The Tribunal found that this certificate was issued in error by the Unit. 6 As to costs, they contended that there were no special circumstances surrounding their application sufficient to justify an award of costs against them in exercise of the special discretion given by s 88 of the Tribunal Act. 7 The dispute which has a long history related to whether the respondent had infringed any exclusivity granted to the appellants in respect of their menu and meal and food types. The appellants claimed that the respondent had done so when it allowed another restaurant operator, Four Seasons, into the centre. 8 As required by Part 8 of the RLA, the dispute was referred to the Registrar of Retail Tenancy Disputes, who heads the Retail Tenancies Unit, for mediation. A mediation took place which resulted in an agreement being reached. 9 The terms of that agreement were embodied in a hand written document which was signed by the parties and provided: 'This Agreement reached 16 April 2002 Between Jim and Sue Dimozantos ("Lessee") AND Deutsche Property Funds Management Ltd (ABN 47 006 036 442) ("Lessor") as a result of mediation in relation to Shop F1 Port Central Shopping Centre, Horton Street, Port Macquarie ("the shop") and lease registered dealing number 2534838 ("the lease"). 1. The Lessee will seek to sell the shop business as soon as possible but in any case by 30 September 2002 and the Lessor will facilitate this sale by agreeing to enter into a new 5 year lease at a rent and on terms no less favourable than current lease with a qualifying tenant. The Lessor will refer all enquiries concerning the shop to the Lessee and only deal with a potential purchaser introduced by Lessee. 2. The Lessee will accept $10,000 in full settlement of all arrears payable in respect of the shop up to 30 April 2002, payable on surrender of the lease of the shop or sale of the business whichever first occurs. 3. From 1 May 2002 until the sale of the business or 30 September 2002, the Lessor will accept payment of 50% of the rent and outgoings. This clause will cease to apply if Lessor ensures that shop F12/F13 (Four Seasons) does not sell items contrary to their permitted use under Annexure B to their lease, including fried eggs, bacon, cakes, iced chocolate, toasted sandwiches, fruit juices, steak burgers, roast rolls, biscuits. 4. The Parties agree to keep this agreement strictly confidential except as required by law or to obtain professional advice or involving a related corporation. 5. Each party releases the other from all actions, suits, claims, or like, arising out of the lease prior to today. 6. If the shop business is sold and a new lease is entered into under clause 1 hereof, or if the shop business is not sold by 30 September 2002, the lease will be terminated without penalty, subject to the payment of the $10,000 in clause 2 hereof and any monies owing under the lease between 1 May and 30 September 2002. 7. The Lessor may elect not to require the Lessor to make good the shop.' 10 On 13 June 2002 the Registrar of Retail Tenancy Disputes, at the request of Mr Dimozantos, issued a certificate of failed mediation. The purpose of a certificate of failed mediation is to enable an aggrieved party to commence proceedings to resolve the dispute. Section 68 of the Retail Leases Act 1994 (the Act) provides: ' 68 Disputes and other matters must be submitted to mediation before proceedings can be taken (1) A retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) may not be the subject of proceedings before any court unless and until the Registrar has certified in writing that mediation under this Part has failed to resolve the dispute or matter or the court is otherwise satisfied that mediation under this Part is unlikely to resolve the dispute or matter. (2) The Registrar must certify that mediation under this Part has failed to resolve a retail tenancy dispute or other dispute or matter referred to in section 65 (1) (a1) if the Registrar is satisfied that any one or more of the parties to the dispute or matter has refused to take part in or has withdrawn from mediation of the dispute or matter. (3) This section does not apply to proceedings before a court for an order in the nature of an injunction. (4) This section does not operate to affect the validity of any decision made by a court.' 11 On 19 June 2002 the appellants lodged an application with the Tribunal. That application alleged that the respondent was in breach of the mediation agreement and the Act, 'by allowing other tenants to trade outside their permitted use'. They sought substantial compensation for 'past and continuing breaches'. That application has since been amended on a number of occasions. 12 An examination of those amendments, and the affidavits in support, shows that all of the claims made by the appellants relate to alleged breaches by the respondent of the 'permitted use' provisions of the lease, both before and after the execution of the mediation agreement. Proceedings in The Tribunal 13 In the Tribunal there were three directions hearings held on 1 August 2002, 9 September 2002 and 1 October 2002. At the first two directions hearings the effect of the mediation agreement, and of the certificate of failed mediation, were the subject of discussion and debate. 14 At the directions hearing held on 9 September 2002, Judicial Member Fox identified a number of preliminary and threshold issues which he decided to determine before proceeding to hear the merits of the application. 15 Relevantly, the first of these was whether the mediation agreement could be pleaded in bar to the application. The Member made procedural directions aimed at ensuring that all necessary evidence and submissions would be in place for him to be able to hear and determine the preliminary issues. That included a direction for informal discovery in relation to the preliminary issues. 16 That date set for the directions hearing had initially been the one fixed for the hearing of the principal application. Because of issues which had arisen, which it is not necessary to traverse here, the Member treated it as a directions hearing at the urging of the parties. 17 The appellants were not in attendance, but were represented by Mr Kondos and Mr Macaulay, from a tenants' advocacy service, 'The Lease Police'. In the course of the directions hearing the following interchange took place between the Member and Mr Kondos (T3, 23-45): 'The Member: Have you got your client here? Mr Kondos: Our client, sir, runs a business and resides in Port Macquarie and there is a logistical issue. The Member: Have you got some proof of your authority to act for him or her? Mr Kondos: Well, we have all the original documentation and the attendance of the last directions hearing before Mr Donald, sir. The Member: Well, Mr Kondos, take it from me that if you wish to appear before me again in relation to these kind of proceedings you have with you, a formal written authority from your client indicating that you are authorised to act. It need not be a formal full New South Wales Power of Attorney, but it would be helpful. Mr Kondos: Certainly, sir. We had Mr Carolan scheduled thinking that we would have a full hearing today, sir, but we changed tack at the last minute, so I do apologise.' 18 A further directions hearing was held on 1 October 2002 when the appellants sought orders for formal discovery, the respondent having refused to discover requested documents. This was opposed by the respondent. The Member refused the application for discovery as the documents sought to be discovered did not relate to the preliminary issues which he had fixed for hearing on 11 October 2002.

Effect of Mediation Agreement 19 On 11 October 2002 Judicial Member Fox heard the preliminary issues. At that hearing both parties were represented by counsel. Mr Lawson, for the appellants, relevantly submitted, with respect to the mediation agreement, that: '1. To allow the agreement to be pleaded in bar is to in effect specifically perform it, and the Tribunal has no power to do so. 2. … 3. The release clause (clause 5) only operated to 16 April 2002, and did not operate in relation to any failure by the Lessor, after that date, to enforce the authorised use and so such post 16 April breaches would still be able to be ventilated in these proceedings.' 20 The Member in his decision concluded: '24 It may well be the case that if the Lessor and Lessee enter into a written release, then the pleading in bar of such a contract in subsequent litigation may be to enforce one of the terms of it, but it seems to me that I am bound by the plain and clear terms of an agreement reached between the parties. To do otherwise would be to descend to the realms of comic opera; upon my proposing to proceed with the hearing despite the claimed words of the Agreement, because I did not have the power to enforce it, the Respondent would need to (I suppose) seek an immediate adjournment, which I would have to grant on his undertaking to immediately make urgent Application in the Supreme Court for an interim injunction to prevent me proceeding. 25 The evidence before me was that, although the payment of $10,000.00 referred to in Clause 2 had not been made, the reduced rent referred to in Clause 3 had been so invoiced, and had been paid by the Applicant. This amounted to part performance, and I am satisfied that the Agreement has come into effect. 26 The plain words of the document, on the one hand identified a full formula for the resolution of the dispute between the parties up to its date and then to 30 September, and on the other hand, satisfied me that the document was intended to be a full and final settlement and that Clause 5 did intend to operate fully to prevent any litigation. 27 It follows that Mr Lawson's third proposition must also fail.' 21 As a consequence the Member found that the mediation agreement was 'a full answer' to the appellants' application, and dismissed their application. Costs 22 He ordered the appellants to pay the respondent's costs of the application incurred after 4 October 2002. In so doing, he found that: + the certificate of failed mediation was clearly issued in error; + while Mr Dimozantos 'did not act deceitfully' when he contacted the Registrar of Retail Tenancy Disputes and 'indicated that the mediation agreement had failed', it was 'foolhardy' for the appellants to proceed with their application after the directions hearing on 1 October 2002; + it was clear that the certificate of failed mediation was issued in error, and that the respondent had provided a full answer to claims about its status as lessor.

The Member considered that these amounted to special circumstances justifying the making of a costs order under s 88 of the Tribunal Act). It should be noted that, in doing so, he required Mr Dimozantos to give evidence. Appeal: Appellant's Submissions 23 The submissions advanced by the appellants in support of their appeal can be summarised as follows: + that the Tribunal was precluded by the issue of the certificate of failed mediation under s 68(1) of the Act from looking behind the certificate, and considering the mediation agreement; + that the mediation agreement did not constitute a bar to the application; + that if the mediation agreement did constitute a bar to the application, the Tribunal had no jurisdiction to consider it; + that if the mediation agreement did constitute a bar to the application, the Tribunal had misconstrued it, by finding it applied to conduct which occurred after the date of the agreement; + that there were no special circumstances justifying the making of a costs order; and + that the Tribunal had denied them natural justice by determining to consider the preliminary issue, by making derogatory remarks on 9 September 2002 about the ability of The Lease Police to represent them (thereby prompting them to retain a barrister), and by denying them discovery before the hearing of the preliminary issues.

Respondent's Submissions 24 With respect to the certificate of failed mediation the respondent submitted that issue of a certificate under s 68 of the Act is an administrative act, which operates as a trigger to allow the commencement of proceedings, and nothing more. It does not preclude a defensive plea that the claims made in the proceedings have been the subject of a settlement between the parties. It does not prevent an application of the general law. 25 With respect to the interpretation of the mediation agreement Mr Kidd submitted that, on a proper construction, it applied to and settled any future claims by the appellants concerning Four Seasons continuing to sell products outside its permitted use. It did so as cl 3 provided a 50% discount on the appellants' rent and outgoings, while Four Seasons continued to sell specified products outside its permitted use. Read together with the release clause (cl 5), the effect of the mediation agreement was that found by the Tribunal. 26 On to the issue of costs, the respondent submitted that Mr and Mrs Dimozantos had not demonstrated any error by the Member in the exercise of his discretion under s 88 of the ADT Act. 27 In relation to the issues raised by the appellants in connection with the rulings made in the course of the directions hearings, Mr Kidd noted that they had not attended any of the directions hearings. He submitted that at the directions hearing on 9 September 2002 the Member had identified the preliminary issues to be determined, and had made directions aimed at ensuring all parties filed and served relevant evidence and submissions relating to those issues before the hearing. There was, he submitted, no denial of natural justice in this regard. 28 On the question of discovery Mr Kidd submitted that the Member had rightly refused the appellants wide-ranging discovery going to all the issues in dispute, pending the determination of the preliminary and threshold issues. 29 Concerning the Member's comments about The Lease Police, Mr Kidd said that it was his recollection that the Member had asked for proof of Mr Kondos' and Mr Macaulay's authority to act on behalf of the appellants. The effect of the certificate of failed mediation 30 The RLA is not a code. Like most other legislation of its type it overlays and modifies the common law. It provides some new rights, remedies and obligations for lessors and lessees, and varies others. In so doing, it works changes on the common law, but does not abrogate it. 31 One such change is the requirement that retail lease disputes be mediated, and that the Registrar issue a certificate of failed mediation before the dispute can be the subject of proceedings: s 68(1). The issue of a certificate of failed mediation is therefore a precondition to a party to a dispute commencing proceedings. In issuing a certificate, the Registrar is obliged to satisfy himself of the matters set out in sub-s (2), before certifying that the mediation has failed. 32 The issuing of a certificate by the Registrar is an administrative act. It is not a binding determination. Implicit in the appellants' submission is a view that the certificate cannot be looked behind, and that the certificate is conclusive evidence that there has been no agreement reached between the parties to the mediation. Yet, the Act makes no such provision. 33 'Conclusive evidence' provisions are not unusual, e.g. s 27 of the Companies (Transfer or Domicile) Act 1968, s 119 of the Taxation Administration Act 1996, s 58 of the Partnership Act 1892, s 420 of the Co-Operatives Act 1992, and numerous others. In the absence of such a provision, there is no evidence of a legislative intention that the certificate is conclusive proof of its contents, and Tribunal was able to take and accept evidence contradicting the certificate. The Tribunal was correct in concluding that the certificate of failed mediation did not prevent it from considering whether there was, in fact, a concluded and binding mediation agreement between the parties. 34 The appellants argued that by doing so, the Tribunal was 'in effect' considering whether it should specifically enforce the mediation agreement. All parties concede that the Tribunal has no jurisdiction to do so. In our view, this misconceives the nature of the inquiry the Tribunal then embarked on. 35 That inquiry was focused on construing the mediation agreement to determine whether the appellants had agreed to substitute their rights under the agreement, for the rights they were attempting to enforce in the Tribunal proceedings. The ultimate question for the Tribunal was whether there was an accord and satisfaction between the parties to the application before it, which constituted a bar to the appellants' claim. The Construction of the Mediation Agreement 36 The mediation agreement dated 16 April 2002, by cl 5, operated as a release 'from all actions, suits, claims or like, arising out of the lease prior to today'. Yet, cl 3 provided a means whereby compensation to the appellants by way of reduction of rent and outgoings was fixed, in the event that defined future breaches of the lease by the respondent occurred. All parties concede that the contemplated breaches did occur, and that the appellants received the benefit of that compensation. 37 The resolution of the apparent conflict between cl 3 and cl 5 of the agreement is a matter of construction. This task required the Tribunal to consider the agreement as a whole, and to ascertain on the face of the agreement what the intention of the parties was. One of Mr Dimozantos' criticisms of the Tribunal was that he had not been allowed to give evidence as to what his intention was when he signed the mediation agreement. We see no difficulty in the course adopted by the Tribunal. 38 The Tribunal had before it an agreement with a series of detailed terms typical of a negotiated outcome, where both parties have given some ground. It was entitled, as we see it, to proceed on the basis of that material, and not to entertain oral evidence (in keeping with principles reflected by the parol evidence rule; as to which see: Codelfa Constructions Pty Ltd -v- State Rail Authority of NSW (1982) 149 VLR 337 at 347 per Mason J; DTR Nominees Pty Ltd -v- Mona Homes Pty Ltd (1978) 138 CLR 423 at 429 per Stephen, Mason and Jacobs JJ.) 39 The mediation agreement sought to address all issues in dispute between the parties at the time it was signed. It made provision for the settlement of the appellants' claims for past damage, dealt with the issue and payment of rental owing, made provision for an early termination of the lease, and fixed compensation due to them should Four Seasons continue to sell defined items contrary to their permitted use. 40 The agreement contemplated and made provision for what was to happen if the permitted use breaches occurred in the future. Looked at in the context of the agreement as a whole, the construction reached by the Member was open to him, and reveals no error of law. The mediation agreement did have the effect of settling, as between the parties, future disputes between them in the event that Four Seasons continued to sell defined items contrary to permitted use. 41 The Appeal Panel noted that Mr Dimozantos' submissions tended to read the Member's comments, at paras [26] and [27] of his reasons, as giving the mediation agreement a wider operation than that set out above. He considered that the Member had made a finding that the agreement operated to settle all past and future disputes relating to the lease. 42 We consider that Mr Dimozantos misconstrued the Member's words, by placing them in a wider context than that in which they were made. We understand the Member to be rejecting point 3 of Mr Lawson's submission in respect of future disputes arising if Four Seasons continued to sell defined items contrary to their permitted use. We do not understand the Member to be finding that all other future breaches of the lease, which may have occurred after the mediation agreement was signed, are subject to and provided for in that agreement. Accord and Satisfaction 43 The reason underlying the Tribunal's dismissal of the appellants' application was that by entering into, and accepting the benefits of, the mediation agreement, the appellants had accepted their rights under the mediation agreement in substitution for causes of action they may have had against the respondent, and vice versa. In McDermott -v- Black (1940) 63 CLR 161 Dixon J wrote (at 183): 'The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of his cause of action. It may be a promise or it may be the act or thing promised. Whatever it is until it is provided and accepted the action remains alive and unimpaired.' See also Tallerman & Co Pty Ltd -v- Nathan's Merchandise (Vic) Pty Ltd (1957) 98 CLR 93 at 114. Where an accord and satisfaction is found, that compromise cannot be set aside in the absence of 'recognised grounds' for setting aside a contract: National Benzole Co Ltd -v- Gooch [1961] 1 WLR 1489 per Sellers LJ at 1490-1. A change of mind by a party who wishes to repent of a bargain, is not such a ground: per Upjohn LJ at 1493. See also Alford -v- Ebbage [2002] QCA 194 per Williams JA. 44 All of the claims, which were the subject of the application to the Tribunal, were also the subject of the mediation agreement between the appellants and the respondent. The Member was satisfied that the appellants had received the benefit of the rent reduction provided for by cl 3, a fact which was not disputed by the appellants. 45 In those circumstances, the Member was correct in determining that the mediation agreement constituted a bar to the proceedings, despite the existence of a certificate of failed mediation. Denials Of Natural Justice 46 The appellants submitted that the Member had denied them natural justice with respect to the determination of the preliminary issue. They conceded that they had been represented when the Member had first decided to determine the preliminary issues, and that the Member had made directions allowing them to adduce evidence and make submissions on those issues. In the course of his oral submission to the Appeal Panel, Mr Dimozantos stated that the unfairness resulted from them being precluded from calling evidence about the parties' intentions when entering into the mediation agreement. They should have been able to cross-examine about the intended operation of the agreement. 47 As stated above, such evidence is inadmissible in construing an agreement. While the Tribunal is not bound strictly by the rules of evidence (see s 73(2) of the Tribunal Act), it is appropriate, we consider, for it to exercise caution in permitting the reopening of apparent settlement agreements. In this instance there was, we consider, sufficient material before the Tribunal by way of explanations of the history of the matter, and filed material, to enable it to reach a conclusion without entertaining oral evidence from the appellants. 48 It is important to the overall effectiveness of the scheme of dispute resolution laid down by Parliament by way of the RLA that mediations undertaken by the Retail Tenancies Unit be upheld. In this instance the Unit had resolved the matter. The certificate of failed mediation was procured without consultation with the respondent. In the Member's view it was issued mistakenly by the Unit. 49 Ordinarily the Division would not seek to re-examine a certificate of failed mediation. But in this instance substantial material was put forward by the respondent calling it into question. The particulars of the Mediation Agreement were examined, and the history as to how the certificate of failed mediation came to be issued. In these circumstances the Tribunal was entitled to look at the question of whether the proceedings were barred by agreement of the parties. 50 The Tribunal did not deny the appellants procedural fairness by not letting them lead that evidence or cross-examine with respect to it. 51 Similarly, the Member's decision to refuse the appellants wide- ranging discovery before the determination of the preliminary and threshold issues did not operate unfairly against the appellants. There is no suggestion that they were deprived of the opportunity to obtain or adduce any document relevant to the determination of the preliminary issue by that decision. The Member's decision to refuse wide-ranging discovery prior to determination of the threshold issues was sensible and appropriate. 52 With respect to the Member's comments concerning the appellants' representation by Mr Kondos and Mr Macaulay from The Lease Police, the only comments which the transcript of 9 September 2002 reveals the Member making are those set out in para [17] above. 53 The Appeal Panel does not accept the appellants' contention that the comments were derogatory, demeaning or otherwise reflected adversely on the ability of Mr Kondos and Mr Macaulay to represent the appellants. They were not pejorative. 54 Section 71 of the Tribunal Act relevantly provides: '(1) A party to proceedings before the Tribunal may: (a) appear without representation, or (b) be represented by an agent, or (c) ..'. In Prakash -v- Bobb Borg Enterprises Pty Limited [1999] NSWADT 73, in the Equal Opportunity Division, the Tribunal observed that an agent representing a party to proceedings must, 'be lawfully appointed and authorised to represent the principal.' 55 The decisions made by and the conduct of an agent, in the course of proceedings, will affect the interests of the person they are representing. This is so whether the agent is a member of the legal profession or not. It is therefore of vital importance that the Tribunal satisfy itself that representatives are fully authorised to act on behalf of the person appointing them. 56 This is especially the case where, as here, the representative is not bound by rules of conduct and subject to ethical supervision and disciplinary regimes, such as those applying to members of professions like the legal profession. This is so as those rules and regimes of ethical conduct provide mechanisms whereby those bound by them are accountable for their conduct, and have clear ethical obligations to the Tribunal, to other parties to the proceedings and their agents, as well as to their own client. See further Kondos & Anor -v- Citadin Pty Ltd [2003] NSWADTAP 7; also Damjanovic -v- Maley (2002) 55 NSWLR 149 at [74]-[75] per Stein J. 57 In our view, the comments made by the Member on 9 September 2002 were perfectly proper remarks aimed at ensuring that the appellants had authorised Mr Kondos and Mr Macaulay to represent them as their agents. The need for clarity about this was highlighted by the fact that the appellants were not present. A properly executed power of attorney is one means of demonstrating that an agent is properly authorised. 58 As the Member rightly pointed out, the Tribunal has and will accept less formal proof of authority. At the very least the Tribunal would expect such an authority to be in writing, signed by the party appointing the agent, and to clearly identify the agent and authorise that agent, in unambiguous terms, to represent them and conduct the proceedings on their behalf. The Order for Costs 59 In Prasad & Anor -v- Fairfield City Council (RLD) [2002] NSWADTAP 2 an Appeal Panel discussed the application of the costs provision in s 88 of the Tribunal Act to retail lease claims. They concluded that the principle for which s 88 stands, in retail lease matters, is that each party should bear their own costs, 'if their conduct in the litigation has been reasonable'. If, however, a party has acted unreasonably or in a recalcitrant way in the course Tribunal litigation, that conduct may constitute special circumstances justifying the making of a costs order under s 88. 60 We note that at the directions hearing on 9 September 2002, when defining the threshold issues for consideration, the Member specifically drew to the attention of the appellants' agents the fact that, if he decided the threshold issue against them, they may be in peril on the issue of costs. He drew their attention to the Tribunal's power to award costs in special circumstances, and noted that Appeal Panel had said that factors relevant to the exercise of the discretion to award costs were: '…whether or not a party has been responsible for prolonging unreasonably the time taken to complete the proceeding, the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or in law, the nature and complexity of the proceedings, and perhaps an issue which might arise, vexatiously conducting the proceeding.' (See, for example, Citadin Pty Ltd (No 2) -v- Eddie Azzi Australia Pty Ltd & Anor [2001] NSWADTAP 31 at [9]; and Bar Ristretto -v- Ansett [2002] NSWADT 124 at [23].) He concluded: 'Now, if it is the case that after argument I hold that this agreement is a complete bar I have great difficulty in not making a cost order. I am not prejudging that issue, it is open to argument but it just seems to me that one flows after the other and that is why I make, at this stage, the suggestion that the parties or your clients in particular may wish to consider their position …' 61 The central thrust of the appellants' submission in relation to the costs order is predicated on their view that the Member was wrong in going behind the certificate of failed mediation. As we have found that the Member was entitled to do so, their submissions loose force. 62 In our view, no error has been demonstrated in the manner in which the Member exercised his discretion as to costs. The appellants elected to proceed with their application after 4 October 2001, in circumstances where their chances of success were nugatory. They did so after the Member had put them on notice that if they were unsuccessful on the threshold issue, they were in peril of a costs order. That is not reasonable conduct by a party to proceedings. Order 63 Appeal dismissed.

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