TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd (No 2) [2023] NSWCATAP 101

TNAU Finery Pty Ltd v SuperBurrito Pty Ltd; SuperBurrito Pty Ltd v TNAU Finery Pty Ltd (No 2) [2023] NSWCATAP 101

Given both parties had mixed success on appeal, with the landlord's sole success on a ground not raised at first instance and substantial time spent on unsuccessful grounds, fairness and efficiency warrant a broad brush approach: landlord to pay 20% of tenant's costs of the appeals.

Jurisdiction
Australia
Judgment Date
06 April 2023
Procedural Posture
Appeal and Cross Appeal / Costs Determination Following Appeal
Outcome
Landlord ordered to pay 20% of tenant's costs; hearing in respect of costs dispensed with.
Legal Topics
['appeal Costs' 'retail Leases Act 1994 (nsw)' 'retail and Other Commercial Leases (covid 19) Regulation 2020' 'jobkeeper Scheme' 'mixed Success on Appeal']
['costs' 'leases and Tenancies'] ['appeal Costs' 'retail Leases Act 1994 (nsw)' 'retail and Other Commercial Leases (covid 19) Regulation 2020' 'jobkeeper Scheme' 'mixed Success on Appeal']

Case Brief

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Procedural Posture

Appeal and Cross Appeal / Costs Determination Following Appeal

Legal Issues

  1. 1 ['Appropriate costs orders where both parties have mixed success on appeal' 'Effect of success on grounds not raised at first instance on costs' "Whether tenant qualified as 'impacted tenant' under Retail and Other Commercial Leases (COVID-19) Regulation 2020"]

Ratio Decidendi

Given both parties had mixed success on appeal, with the landlord's sole success on a ground not raised at first instance and substantial time spent on unsuccessful grounds, fairness and efficiency warrant a broad brush approach: landlord to pay 20% of tenant's costs of the appeals.

Court Disposition

Landlord ordered to pay 20% of tenant's costs; hearing in respect of costs dispensed with.

Orders

  • ['A hearing in respect of costs is dispensed with.' 'TNAU Finery Pty Ltd is to pay 20% of the costs of SuperBurrito Pty Ltd in the appeals, on the ordinary basis.']