Gelin v Sumner (No 2) (RLD) [2013] NSWADTAP 14

Gelin v Sumner (No 2) (RLD) [2013] NSWADTAP 14

Although the Applicant's case on important factual questions was weak, the legal issues in the proceedings and on appeal were not straightforward and the arguments available to him were substantial and required careful consideration. There was therefore no substantial disparity between the relative strengths of the parties' cases. The Respondents' withdrawn cross claim was relevant under section 88(1A)(e) and counted against making a costs order in their favour to a limited extent. For the appeal, the Applicant was entitled to point to evidentiary matters not mentioned by the Tribunal, the Appeal Panel reached the same conclusion by a different route, the appeal did not lack reasonable...

Jurisdiction
Australia
Judgment Date
28 March 2013
Procedural Posture
Costs Application in Retail Lease Proceedings / Appeal Panel Decision on the Papers Following an Unsuccessful Appeal
Outcome
The Respondents' applications for costs were refused; the parties are to bear their own costs of the proceedings in the Retail Leases Division and before the Appeal Panel.
Legal Topics
['costs in Tribunal Proceedings' 'retail Lease Dispute' 'appeal Costs' 'first Instance Costs' 'section 88 Administrative Decisions Tribunal Act 1997' 'calderbank Offer']
['administrative Law' 'retail Leases' 'costs'] ['costs in Tribunal Proceedings' 'retail Lease Dispute' 'appeal Costs' 'first Instance Costs' 'section 88 Administrative Decisions Tribunal Act 1997' 'calderbank Offer']

Case Brief

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Procedural Posture

Costs Application in Retail Lease Proceedings / Appeal Panel Decision on the Papers Following an Unsuccessful Appeal

Legal Issues

  1. 1 ["Whether it was fair under section 88(1A) of the Administrative Decisions Tribunal Act 1997 to order the Applicant/Appellant to pay the Respondents' costs of the first instance proceedings." "Whether it was fair under section 88(1A) of the Administrative Decisions Tribunal Act 1997 to order the Applicant/Appellant to pay the Respondents' costs of the appeal." "Whether the relative strengths of the parties' cases, including the alleged lack of any tenable basis in fact or law for the Applicant/Appellant's case, justified a costs order." "Whether the Respondents' filing and later withdrawal of their cross claim was relevant to costs." "Whether the Respondents' solicitors' letter of 2 July 2012 provided a basis for costs of the appeal."]

Ratio Decidendi

Although the Applicant's case on important factual questions was weak, the legal issues in the proceedings and on appeal were not straightforward and the arguments available to him were substantial and required careful consideration. There was therefore no substantial disparity between the relative strengths of the parties' cases. The Respondents' withdrawn cross claim was relevant under section 88(1A)(e) and counted against making a costs order in their favour to a limited extent. For the appeal, the Applicant was entitled to point to evidentiary matters not mentioned by the Tribunal, the Appeal Panel reached the same conclusion by a different route, the appeal did not lack reasonable...

Court Disposition

The Respondents' applications for costs were refused; the parties are to bear their own costs of the proceedings in the Retail Leases Division and before the Appeal Panel.

Orders

  • ['The parties are to bear their own costs of the proceedings in the Retail Leases Division and the proceedings before the Appeal Panel.']