2FC Pty Ltd v Sokkon Pty Ltd (No 2) [2011] NSWADT 304

2FC Pty Ltd v Sokkon Pty Ltd (No 2) [2011] NSWADT 304

It was not fair to make a costs order because the conceded rent had remained unpaid without apparent justification, the Applicant ultimately succeeded in an amount higher than the Respondents' settlement offer, the Applicant's claims against the Respondents were reasonably arguable rather than clearly untenable, much of the complexity arose from the Respondents' own equivocation about the proposed new lease, the proceedings were not significantly prolonged or expanded by the unsuccessful components of the claim, and the Applicant's rectification claim arose from a reasonable but mistaken belief about ownership of fixtures and fittings.

Jurisdiction
Australia
Judgment Date
20 December 2011
Procedural Posture
Costs Application in the Retail Leases Division / On the Papers Following the Principal Decision Made on 8 November 2011
Outcome
The Respondents' application for costs is dismissed.
Legal Topics
['costs Orders' 'settlement Offer' 'unpaid Rent' 'indemnity Costs' 'party/party Costs']
['administrative Law' 'retail Leases' 'costs'] ['costs Orders' 'settlement Offer' 'unpaid Rent' 'indemnity Costs' 'party/party Costs']

Case Brief

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Procedural Posture

Costs Application in the Retail Leases Division / On the Papers Following the Principal Decision Made on 8 November 2011

Legal Issues

  1. 1 ['Whether it was fair under s 88(1A) of the Administrative Decisions Tribunal Act 1997 to make a costs order in favour of the Respondents.' "Whether the Respondents' settlement offer of 25 October 2010 justified party/party costs up to that date and indemnity costs thereafter." "Whether the Applicant's unsuccessful claims were clearly untenable or significantly prolonged or expanded the proceedings."]

Ratio Decidendi

It was not fair to make a costs order because the conceded rent had remained unpaid without apparent justification, the Applicant ultimately succeeded in an amount higher than the Respondents' settlement offer, the Applicant's claims against the Respondents were reasonably arguable rather than clearly untenable, much of the complexity arose from the Respondents' own equivocation about the proposed new lease, the proceedings were not significantly prolonged or expanded by the unsuccessful components of the claim, and the Applicant's rectification claim arose from a reasonable but mistaken belief about ownership of fixtures and fittings.

Court Disposition

The Respondents' application for costs is dismissed.

Orders

  • ["The Respondents' application for costs is dismissed."]