Torchia v Swanton (RLD) [2012] NSWADTAP 5

Torchia v Swanton (RLD) [2012] NSWADTAP 5

Order 2 meant that each party was to bear its own costs. Although the Tribunal erred by giving no reasons and, on possible views of its reasoning, either wrongly treated the Applicants as debarred from seeking costs or denied procedural fairness by deciding costs without submissions, the Appeal Panel granted leave to extend to the merits and concluded that the correct and preferable decision was still that no costs order be made. The Applicants were not wholly successful, the Respondents had reasonably contested significant components of liability and damages, the finding of unconscionable conduct did not of itself require a costs order under section 88(1A), and the Applicants' settlement...

Jurisdiction
Australia
Judgment Date
09 February 2012
Procedural Posture
Internal Appeal in the Administrative Decisions Tribunal Appeal Panel Concerning Retail Lease Costs / Appeal Against Order 2 of Torchia V Swanton (no 2) [2011] NSWADT 185, Which Made No Order as to Costs
Outcome
Appeal dismissed in substance; Order 2 affirmed.
Legal Topics
['appeal on Question of Law and Merits' 'no Order as to Costs' 'costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'unconscionable Conduct Under the Retail Leases Act 1994' 'settlement Offers and Calderbank Principles' 'procedural Fairness' 'adequacy of Reasons']
['administrative Law' 'retail Leases' 'costs'] ['appeal on Question of Law and Merits' 'no Order as to Costs' 'costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'unconscionable Conduct Under the Retail Leases Act 1994' 'settlement Offers and Calderbank Principles' 'procedural Fairness' 'adequacy of Reasons']

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Procedural Posture

Internal Appeal in the Administrative Decisions Tribunal Appeal Panel Concerning Retail Lease Costs / Appeal Against Order 2 of Torchia V Swanton (no 2) [2011] NSWADT 185, Which Made No Order as to Costs

Legal Issues

  1. 1 ["Whether the Tribunal's order that there be no order as to costs meant that each party was to bear its own costs or that costs remained open for later determination." 'Whether the Tribunal erred in law by failing to give reasons for making no order as to costs.' "Whether the Applicants' failure to apply for costs at the Tribunal hearings debarred them from seeking a costs order after determination of their claims." 'Whether making no order as to costs without receiving evidence or submissions on costs involved denial of procedural fairness.' 'Whether, on the merits, it was fair under section 88(1A) of the Administrative Decisions Tribunal Act 1997 to award the Applicants their costs of the Tribunal proceedings.']

Ratio Decidendi

Order 2 meant that each party was to bear its own costs. Although the Tribunal erred by giving no reasons and, on possible views of its reasoning, either wrongly treated the Applicants as debarred from seeking costs or denied procedural fairness by deciding costs without submissions, the Appeal Panel granted leave to extend to the merits and concluded that the correct and preferable decision was still that no costs order be made. The Applicants were not wholly successful, the Respondents had reasonably contested significant components of liability and damages, the finding of unconscionable conduct did not of itself require a costs order under section 88(1A), and the Applicants' settlement...

Court Disposition

Appeal dismissed in substance; Order 2 affirmed.

Orders

  • ["Order 2 in the Tribunal's decision of 2 August 2011 in these proceedings is affirmed." "There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve...