Parallel Lines International Pty Limited v Video-Drama Pty Limited [2004] NSWCA 333 | Case summary

REASONS FOR DECISION Introduction 1 The present judgment deals with an application for security for costs that has been filed by the Respondent/Cross Applicant in these proceedings. 2 In this case, the lessor of retail shop premises locked the lessee out of the premises on the ground of non-payment of rent and took possession of fixtures, fittings, items of stock and cash of the lessee that were held on the premises. The principal issues in dispute were whether the failure of the lessee to meet its rent obligations was sufficient under the terms of the lease to entitle the lessor to conduct the lockout and whether the lessee should receive damages for the loss of future profits of its business and/or for the value of the goods taken from the premises. 3 The lessee was the Applicant/Cross Respondent, Parallel Lines International Pty Ltd ('Parallel Lines'). Mr Geoffrey Hill, who is a citizen of and now resident in the United Kingdom, has at all material times been a shareholder and the sole director of this company. 4 The lessor was the Respondent/Cross Applicant, Video-Drama Pty Ltd ('Video-Drama'). Its principal director is Mr Leigh Jennings. 5 The lease, which was governed by the Retail Leases Act 1994 ('the RL Act'), related to premises at 34/277 Crown Street, Surry Hills ('the Premises'). The business carried on by Parallel Lines at the Premises was that of a retail clothing shop. 6 Both of the parties lodged applications in the Tribunal. Parallel Lines claimed damages on the grounds of breach of the terms of the lease, conversion of its goods and unconscionable conduct as defined in s. 62B of the RL Act. In a cross application, Video-Drama claimed damages for breach of the covenant to pay rent and as reimbursement for expenses incurred in terminating the lease and reletting the premises. 7 Since the application by Parallel Lines included a claim of unconscionable conduct, the Tribunal is constituted in accordance with Clauses 1 and 4 of Part 3B of Schedule 2 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). It is constituted by a Deputy President who is a member of the Retail Leases Division, assisted by two other appropriately qualified members acting in an advisory capacity only. The judgment already delivered in these proceedings 8 In a judgment delivered on 12 April 2007 (Parallel Lines International Pty Limited v Video-Drama Pty Limited [2007] NSWADT 84 - hereafter 'the principal judgment'), the Tribunal upheld the claim by Parallel Lines that under the terms of the lease Video-Drama had not been entitled, through its agents, to effect the lockout, which occurred on 5 October 2002, or to seize and remove the goods owned by Parallel Lines that were in the Premises at this time. The Tribunal ruled that Parallel Lines was accordingly entitled in these proceedings to obtain damages from Video-Drama for conversion of these goods. 9 The Tribunal determined, however, that the claim by Parallel Lines for damages for loss of future profits of its business should be rejected. It did so on the ground that Parallel Lines had failed to prove that if the lockout had not occurred it would have escaped from the precarious financial situation into which it had fallen and would have become both solvent and profitable. At the same time, it held that one direct consequence of the lockout was the destruction of the business carried on by Parallel Lines at the Premises. 10 The Tribunal also determined that Parallel Lines was entitled to the amount of the security deposit paid by it pursuant to the lease and that Video-Drama was entitled to damages representing the rent due and unpaid under the lease as at 5 October 2002. Neither of these amounts is substantial. 11 The Tribunal did not assess the damages payable to Parallel Lines for conversion of its goods. In the principal judgment at [157 - 167], it outlined the relevant evidence and the submissions that Parallel Lines had advanced on this matter. 12 This evidence chiefly comprised a four-page inventory listing numerous items of clothing, 79 photographs annexed to the affidavit of an agent engaged by Video-Drama and list containing 19 items of fixtures and fittings annexed to an affidavit sworn by Mr Hill. The Tribunal noted (at [164]) a particular reason put forward by Mr Hill for the lack of more detailed evidence as to the identity and the value of these goods. Mr Hill's assertion, which was not contested, was that after the lockout the financial records maintained by Parallel Lines at the Premises, including stock reports, sales sheets and bank statements, had been thrown out by cleaners acting on the instructions of agents of Video-Drama. The Tribunal noted also, at [166], a submission by Ms Obrart, counsel for Parallel Lines, that the damages to be awarded for conversion to Parallel Lines should be quantified as follows: value of stock removed, $150,017.92; value of fixtures and fittings, $66,115.60; amount of cash removed, $600.00. At [167], it noted a further submission by her that 'a court assessing damages is entitled to draw inferences against a party whose conduct has made accurate determination problematic'. 13 At [168], the Tribunal stated that 'it was not in a position to assess damages under this head'. It went on to explain why it had reached this conclusion and what consequences followed:- 169 The reason for this is that, as Mr Sirtes [counsel for Video-Drama] pointed out, the particulars annexed to the submissions filed on Parallel Lines' behalf after the hearing do not constitute evidence. While on some matters they refer to statements made in written and oral evidence, on other matters of prime importance - namely, the values that should be attributed to individual fixtures and fittings and to different categories of stock - they simply make assertions by way of 'reconstruction'. This material is inadequate not merely because it fails in many instances to indicate the evidentiary basis on which individual valuations are claimed. It is inadequate also because it has not been tendered as evidence during the hearing of this case. No opportunity has been provided to Video-Drama to frame objections to its being admitted or to cross-examine any witness called to testify as to its provenance or as to how the valuations contained in it have been calculated. 170 If Parallel Lines had had legal representation throughout the hearing, the Tribunal might well be inclined to rule that it had failed to make use of its opportunity to tender appropriate evidence regarding its losses under this head of damages and that, at most, damages that were established by the limited evidence outlined above should be awarded. But Parallel Lines did not have legal representation until after the hearing. Furthermore, it did not discover until the second last day of the hearing that the goods were still in Video-Drama's hands, being held in storage in Mr Jennings' garage. An entitlement to damages under this particular head represents the only substantial part of its case that has succeeded. 171 For these reasons, the Tribunal's conclusion, based on considerations of natural justice, is that Parallel Lines should have a further opportunity to tender, in proper form, evidence designed to show the value of the goods that were converted by Video-Drama by virtue of their removal from the Premises and subsequent storage. Video-Drama should then have the opportunity to tender evidence in reply. 14 The Tribunal then made the following observations which are relevant to its decision on the present application:- 172 It is clear, in the Tribunal's opinion, that in any ruling that it makes on damages the value attributed to the items of stock that were removed could not exceed their cost price. Equally, the value attributed to fixtures and fittings should be their depreciated value, not their replacement value. These propositions stem from the failure of Parallel Lines to show that the business that it carried on at the Premises would, but for the lockout, have been both solvent and profitable. 173 The Tribunal's decision to permit further evidence to be tendered on this aspect of the assessment of damages may well cause a further hearing to be necessary in order to conclude this case. As the reason for these measures is Parallel Lines' failure to have supplied such evidence at the proper time, the Tribunal would be sympathetic to any application made by Video-Drama (irrespective of the outcome of the proceedings) for costs incurred in tendering any evidence in response and in appearing at a further hearing, if such proves necessary. 15 The orders made by the Tribunal in the principal judgment included an order setting the matter down for further directions on 6 June 2007. 16 In a letter dated 3 May 2007, addressed to the Tribunal members constituting the Panel for these proceedings, Mr Greene, the solicitor for Video-Drama, contended that the statements made in the second and third sentences of paragraph [170] of the principal judgment were not accurate. He outlined the factual basis for this contention. On this ground, and on the ground also that Video-Drama would be unfairly prejudiced (notably with regard to enforcement of any costs order made in its favour) if Parallel Lines were permitted to reopen its case on damages, he urged the Tribunal to reconsider its decision that Parallel Lines should be so permitted. 17 Having taken into account a response from Ms Obrart (also contained in a letter to the Tribunal), the Tribunal decided that even if Mr Greene's claims of inaccuracy in its judgment were well founded, it should not accede to his submission. Its reason for this decision was that in its opinion the considerations of natural justice to which it referred in paragraph [171] of the principal judgment should still prevail, given also that in paragraph [173] it had indicated a willingness to consider favourably any application by Video-Drama for its costs incurred in tendering further evidence on damages and appearing, if necessary, at a further hearing. 18 The Tribunal communicated this decision to the parties at the directions hearing on 6 June 2007. At this hearing, directions were given regarding the filing of further evidence and submissions and the fixing of dates for the hearing on damages. 19 In addition, Mr Sirtes foreshadowed the filing by Video-Drama of the present application for security for costs. The Tribunal gave directions for the filing of this application and of submissions by both parties, and indicated that the application would be determined without a hearing, pursuant to s. 76 of the ADT Act. The basis of Video-Drama's application for security for costs 20 Video-Drama's application was for orders as follows: (a) that Parallel Lines provide, within 14 days, security for Video-Drama's costs of and incidental to these proceedings in the amount of $30,176.25 or in such amount and manner as the Tribunal saw fit; (b) that Parallel Lines' claim should be stayed until such security was provided; (c) that if security as ordered was not provided, Parallel Lines' claim should be dismissed; (d) that Video-Drama should have leave to apply on seven days notice for an increase in the amount of security provided; (e) further or other orders as the Tribunal saw fit; and (f) costs. 21 In a supporting affidavit sworn on 14 June 2007, Mr Greene deposed that in the course of his practice as a solicitor conducting commercial litigation over a period of some 16 years he had been involved in the taxation and assessment of legal costs and disbursements on numerous occasions. He stated that as at the date of his affidavit Video-Drama had been billed for legal costs and disbursements in these proceedings totalling $185,650.79 and that in his opinion the further costs and disbursements likely to be incurred in preparing for and representing Video-Drama in the contemplated hearing on damages would reach a total of $40,235. He suggested that on assessment pursuant to a costs order Video-Drama would obtain not less than 75% of the costs and disbursements for which it had been billed so far and that therefore the amount that it would be likely to obtain on account of future costs would be not less than $30,176.25 (being 75% of $40,235). 22 On Video-Drama's behalf, both the initial submissions (filed on 14 June 2007) and the submissions in response (filed 15 days later) were prepared by Mr Sirtes. They contained the following arguments:- 1. The entitlement of Parallel Lines to damages for the tort of conversion was dependent on its proving damage resulting from the seizure and removal of its goods, yet at this stage, after four days of hearing and extensive written submissions, it had failed to prove any damage. So far, its claim had wholly failed, and the legal and factual hurdles that it was still confronted were 'substantial'. Indeed, the Tribunal should 'have no confidence whatsoever' that it would be able to 'fulfil its legal and evidential burden'. Amongst the difficulties that it faced was the fact there was no evidence that it had paid for the fixtures and fittings removed from the Premises. 2. Video-Drama had been put to substantial expense in procuring an expert report from Mr Michael Potter, in response to an expert report that Parallel Lines had filed, purporting to deal with quantification of its financial loss. But the latter report was not tendered at the hearing. 3. These matters constituted 'special circumstances warranting an award of costs' within the meaning of s. 88 of the ADT Act. Under this section, an award covering Video-Drama's costs to date, or a proportion of them, should be made now. 4. It was 'beyond question' that Parallel Lines was 'wholly worthless'. It was indeed insolvent (as the Tribunal had found) before the lockout occurred. At the same time, since Mr Hill was contemplating briefing counsel, preparing for a second hearing and travelling to Australia for the hearing on damages, he would clearly be in a position to provide security if Video-Drama's application were granted. 5. A proposal mentioned by the Tribunal at the directions hearing of 6 June 2007 - namely, that future costs incurred by Video-Drama and recoverable from Parallel Lines in accordance with the observations in the principal judgment at [173] could be set off against damages awarded to Parallel Lines - would confer insufficient protection on Video-Drama. This is because (a) there is no certainty that Parallel Lines will obtain any award of damages at all and (b) Video-Drama would still, for the reasons advanced, be entitled to an award of some at least of its costs. 6. By virtue of s. 88 of the ADT Act, an order for security for costs is within the powers of the Tribunal. 7. Determining entitlement to an order of this type should not involve the Tribunal in 'prognosticating as to the likely outcome' of the proceedings. Instead, such an order is 'made to safeguard against the mere possibility that a Plaintiff will fail'. 8. Since Parallel Lines had been 'thrown a lifeline by the Tribunal', an 'even handed approach' would dictate that 'the significant cost exposure' of Video-Drama, 'which will never otherwise be able to be recovered' ought to be 'the subject of security in advance of the hearing'. If in consequence of the Tribunal's 'favourable exercise of discretion' to assist Parallel Lines, Video-Drama became burdened with a further $40,000 worth of unrecoverable costs, this would 'visit a grotesque unfairness' to Video-Drama, which 'ought not be sanctioned by the Tribunal'. 10. In so far as Parallel Lines contended that an obstacle to its proving damage was the continued possession of its goods by Video-Drama, the Tribunal should take account of the fact that it did not avail itself of opportunities granted on four occasions between January and April 2003 to collect the goods. 11. In so far as Parallel Lines contended that an order to provide security would 'stultify' its claim, the Tribunal should take account of the considerations that (a) it would only be its ability to run the second part of its claim that was 'stultified' and (b) as already indicated, Mr Hill was in fact financially capable of providing security. The submissions on behalf of Parallel Lines 23 In brief submissions filed for Parallel Lines on 22 June 2007, Ms Obrart made the following arguments:- 1. The Tribunal had determined that Parallel Lines was entitled to damages being the value of the goods that had been 'unlawfully wrested' from the Premises by Video-Drama's agents and were still retained by Video-Drama. 2. It was as a result of this conduct by Video-Drama that Parallel Lines became and still remained insolvent. Since Parallel Lines was unable for this reason to meet any order for security, the effect of such an order would be to 'stultify' its damages claim and 'render a nullity' the orders made in the principal judgment. In consequence, Video-Drama would be 'profiting from its unlawful conduct'. 3. The application for security for costs was not made bona fide, since its purpose was to stultify Parallel Lines' right to damages. It was 'entirely groundless in law or fact', being not supported by s. 88 of the ADT Act as claimed by Video-Drama, and should be dismissed with costs pursuant to this provision. Relevant legal principles 24 It is useful to indicate first that, in the Tribunal's opinion, it does possess jurisdiction to make an order for security for costs of the type sought by Video-Drama. Useful recent authority is to be found in the Tribunal's judgment (delivered on 20 June 2007) in Spuds Surf Chatswood Pty Ltd v P T Ltd [2007] NSWADT 130 at [74 - 85]. At [85], the Tribunal observed that a sufficient statutory basis for this jurisdiction is furnished by s. 72(2), (3) and (4) of the RL Act. 25 There are however no provisions dealing specifically with such orders in the ADT Act or in any regulations or rules made under that Act. None of the submissions of the parties in this case referred to any authorities establishing the principles to be followed in deciding whether an order should be granted. 26 In these circumstances, the Tribunal has obtained useful guidance (as did the Tribunal in the Spuds Surf case: see the judgment at [76 - 78]) from Ritchie's Uniform Civil Procedure, paras [42.21.5] and [42.21.10]. These paragraphs in Ritchie form part of the commentary to r 42.21 of the Uniform Civil Procedure Rules 2005. Although this Rule is not applicable to proceedings in the Tribunal, it is appropriate for the Tribunal to adopt an analogous approach to that required by the Rule. 27 Under r 42.21(1)(d), one of the specific situations in which security may be ordered is where 'there is reason to believe that the plaintiff, being a corporation, will be unable to pay the costs of the defendant if ordered to do so'. 28 In para [42.21.5] of Ritchie, it is stated however that the Rule 'confers a wide discretion that is to be exercised having regard to all the circumstances of the particular case'. Furthermore, 'there is no rule that an order for security ought be made merely because the grounds set out in r 42.21(1) have been satisfied'. 29 In para [42.21.10], a non-exhaustive summary of factors relevant to the exercise of the discretion is set out. Relevantly, this summary includes the following subparagraphs:- (a) whether the plaintiff's claim is made in good faith and appears to be reasonably arguable:… [though] if the plaintiff's claim appears reasonably arguable it is not appropriate to attempt a more detailed assessment of the prospects of success:…. (c) whether the plaintiff's lack of funds has been caused or contributed to by the conduct of the defendant:… or by its own conduct:… (e) whether the making of the order would unduly stultify the plaintiff's ability to pursue the proceedings:… (f) the extent to which it is reasonable to expect… shareholders… to make funds available to satisfy any order for security which is made:… (g) the likelihood of a costs order being made at the conclusion of proceedings:… The Tribunal's conclusions 30 In deciding how its discretion should be exercised, the Tribunal finds it useful to consider initially the last of the factors listed in this summary, namely, the likelihood of a costs order being made at the conclusion of these proceedings. An accompanying question of crucial importance is the likely scope of any such order. 31 Mr Sirtes maintained that an award covering Video-Drama's costs to date, or a proportion of them, should be made now. He relied on three matters which, in his submission, constituted 'special circumstances warranting an award of costs', within the meaning of s. 88 of the ADT Act. This provision is made applicable to cases within this Division by s. 77A of the RL Act. 32 These three matters were (a) that so far, the claim by Parallel Lines had wholly failed; (b) that by virtue of the legal and factual hurdles with which it was still confronted (including that of adducing evidence, of which none had emerged so far, that it had paid for the fixtures and fittings removed from the Premises), the Tribunal should have no confidence whatsoever that it would be able to succeed; and (c) that Video-Drama had been put to substantial expense in procuring the expert report prepared by Mr Potter, in response to the report filed by Parallel Lines dealing with quantification of its financial loss, yet the latter report was not tendered at the hearing. 33 A further ground on which Video-Drama can contend that the Tribunal is likely to order Parallel Lines to pay costs is the Tribunal's indication, in the principal judgment at [173], that it would be 'sympathetic' to any application made by Video-Drama (irrespective of the outcome of the proceedings) for the costs incurred in tendering evidence and appearing at the hearing on damages. 34 In the Tribunal's opinion, neither of the first two matters relied on by Mr Sirtes provides support for his claim that a costs order against Parallel Lines should be made now, applying the criterion of 'special circumstances' laid down in s. 88 of the ADT Act. In so ruling, it draws attention to the following features of the case. 35 The passage in Mr Hill's affidavit describing the fixtures and fittings, together with the photographs of items of clothing annexed to the affidavit sworn by Video-Drama's agent, sufficiently show that a substantial quantity of goods were removed from the Premises at the time of the lockout. Although not impossible, it is highly unlikely that Parallel Lines will be unable to show that none of these goods possessed any significant value. The Tribunal has already held that the removal of the goods by agents of Video-Drama was not authorised under the lease and that Parallel Lines is accordingly entitled to recover damages representing their value so long as some damage can be proved. 36 For these reasons, it is not in point to maintain that 'so far' the claim by Parallel Lines has 'wholly failed' and it cannot be assumed that after evidence tendered at the hearing of damages has been taken into account this claim will still 'wholly fail'. 37 It is important to point out here also that, even if Parallel Line failed to prove at the hearing on damages that the removed goods had any value at all and for that reason were wholly unsuccessful in these proceedings, it would not necessarily follow that Video-Drama would recover all its costs. Since costs do not 'follow the event' under s. 88, it frequently occurs that a respondent which is wholly successful in rebutting a claim brought within this Division must pay its own costs. Having regard to the fact that Parallel Lines has already succeeded on the principal substantive question raised (namely, whether removal of the goods was authorised under the lease), the Tribunal could not assume that a failure by it to prove material financial loss would necessarily be followed by an order requiring it to pay Video-Drama's costs. 38 As to the submission by Mr Sirtes regarding the report prepared by Mr Potter, the Tribunal would observe that since both Mr Hill and Ms Heather Bain, who was the manager of the business conducted by Parallel Lines at the Premises, gave evidence regarding the profitability of this business (see the principal judgment at [120 - 124]), it cannot be said that the engagement of an expert witness such as Mr Potter was an entirely unnecessary exercise from Video-Drama's point of view. It may well be that the decision by Parallel Lines not to tender the expert report that it had filed provides grounds for Video-Drama to claim that Mr Potter prepared a more detailed report than was actually required and that Parallel Lines should therefore be order to reimburse Video-Drama for the extra fees that it had been required to pay to Mr Potter. 39 With reference to the costs that Video-Drama will incur in preparing for and attending the hearing on damages, the Tribunal, while indicating that it would be 'sympathetic' to any costs application by Video-Drama, would point out that any costs penalty imposed on Parallel Lines would be likely to extend only to the extra costs occasioned by the failure of Parallel Lines to have tendered at the substantive hearing all the evidence that it wished to adduce relating the identity and value of the seized goods. If Parallel Lines had acted in this regard as it should have done, this hearing might well have lasted for a further day or part of a day. At the directions hearing of 6 June 2007, it was recognised that one day might suffice for the future hearing on damages (although out of caution this hearing has been set down for two days). These considerations are sufficient to suggest that any costs ultimately awarded to Video-Drama on this ground would be unlikely to reach the figure of $40,000-odd estimated by Mr Greene. 40 The upshot of this investigation of the likelihood of some form of costs order being made in Video-Drama's favour at the conclusion of these proceedings is that, as indicated in the principal judgment, it may fairly claim entitlement to the extra costs occasioned by the failure of Parallel Lines to have tendered all of its evidence at the substantive hearing, and it may have a case for an award covering some of the fees paid by it to Mr Potter. This is as far as any significant 'likelihood' goes. It has not made out any claim for an immediate award. 41 With regard to the other matters specifically raised in the foregoing summary (at [27 - 29]) of the relevant legal principles, the Tribunal makes the following observations. First, the admitted insolvency of Parallel Lines would bring the case within r 42.21(1)(d) of the Civil Procedure Rules, if those rules were applicable. Secondly, this same factor provides some grounds for Ms Obrart's submission that an order to provide security for costs would 'stultify' the capacity of Parallel Lines to pursue its claim further. Thirdly, there is some force in the counter-argument by Mr Sirtes that it would be reasonable to expect Mr Hill, being the sole director and a shareholder in Parallel Lines, to make funds available to satisfy any order for security. Fourthly, although the lockout was a direct cause of the destruction of Parallel Lines' business at the Premises, it cannot be said to have caused the present insolvency of this company, because it was already insolvent at the time of the lockout and would most likely have remained so. Fifth and finally, for reasons already given, Parallel Lines, having succeeded in proving liability against Video-Drama, has an established entitlement - not merely a 'reasonably arguable' claim - to recover damages, subject only to proof of some degree of financial loss. These damages will be assessed chiefly by reference to the value - in so far as it is proved - of its goods that were removed from the Premises at the time of the lockout. 42 As stated above at [28], in reaching its decision on this question of security for costs, a court or tribunal has a wide discretion and must take account all aspects of the case that it considers relevant. 43 In addition to those factors just mentioned, the Tribunal in the present case attributes importance to the fact that Video-Drama's agents, through causing the documentary records that Parallel Lines kept at the Premises to be thrown out by cleaners, has engaged in conduct making 'problematic' the 'accurate determination' of the damages due to it. As mentioned above at [12], Ms Obrart, in her written submissions following the substantive hearing, argued that in such circumstances a court assessing damages is entitled to 'draw inferences against' the party responsible. She cited as authority a Court of Appeal case, Tyco Australia Pty Ltd v Optus Networks Pty Ltd & Ors [2004] NSWCA 333. 44 Although the issue at stake in the present application is obviously quite different, the Tribunal considers that this conduct, for which Video-Drama must be held responsible, is a factor weighing against granting the order for security for costs that it now seeks. Video-Drama has complained about the failure of Parallel Lines to comply with the requirement that all its evidence be filed and tendered at the proper time. In consequence, a second hearing has had to be scheduled. But due to the prior conduct of an agent of Video-Drama, the steps that Parallel Lines needed to take to comply with this requirement, and still needs to take in order to be properly prepared for the second hearing, are distinctly more expensive and time-consuming than they should have been. 45 Ultimately, the factors that weigh most strongly against Video-Drama's application are (a) the matter just outlined, (b) the fact that liability has already been established against it, subject only to proof of some damage and (c) the consideration that even if after the hearing on damages it proved wholly successful in defeating the claim brought by Parallel Lines its entitlement to costs might go no further than a partial award, limited to the extra costs incurred through hearing the case in two separate 'stages' instead of one only and (possibly) paying more than should have been necessary to an expert witness. 46 Taking into account these factors, together with the other matters discussed above (several of which operate in Video-Drama's favour), the Tribunal's conclusion in the exercise of its discretion is that Video-Drama's application for security for costs must be dismissed. 47 In her submissions, Ms Obrart contended that this application was 'entirely groundless in law or fact' and that its dismissal should be accompanied by an order for costs under s. 88 of the ADT Act. The Tribunal, while dismissing the application, does not agree with these contentions. No 'special circumstances warranting an award of costs' have been shown to exist. There will accordingly be no order for costs on this application.

Parallel Lines International Pty Limited v Video-Drama Pty Limited

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