Murar v Usagi Ya Pty Ltd (RLD) [2005] NSWADTAP 26

Murar v Usagi Ya Pty Ltd (RLD) [2005] NSWADTAP 26

The Tribunal erred in law by making a costs order without giving the parties an opportunity to be heard on costs, so the order had to be set aside. The Appeal Panel determined the costs issue itself because the parties had placed the relevant material before it. Although Eva Murar's fire damage claim was clearly without merit because the District Court consent judgment barred any further claim for the same fire-related loss and damage, the other matters relied on by the Tribunal did not amount to special circumstances warranting an award of all costs. The proper order was limited to Usagi Ya Pty Ltd's costs referable to Murar's pursuit of the fire damage claim in paragraphs 8–10 of her...

Jurisdiction
Australia
Judgment Date
10 June 2005
Procedural Posture
Appeal Against a Costs Order in Retail Tenancy Proceedings Under the Retail Leases Act 1994 / Appeal Panel Decision
Outcome
Appeal allowed; Tribunal costs order set aside; substituted limited costs order made; no order as to appeal costs unless an application is filed.
Legal Topics
['natural Justice' 'opportunity to Be Heard on Costs' 'special Circumstances for Costs' 'res Judicata' 'issue Estoppel' 'calderbank Offers' 'appeal Panel Powers']
['administrative Law' 'retail Leases' 'costs' 'civil Procedure'] ['natural Justice' 'opportunity to Be Heard on Costs' 'special Circumstances for Costs' 'res Judicata' 'issue Estoppel' 'calderbank Offers' 'appeal Panel Powers']

Case Brief

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Procedural Posture

Appeal Against a Costs Order in Retail Tenancy Proceedings Under the Retail Leases Act 1994 / Appeal Panel Decision

Legal Issues

  1. 1 ['Whether the Tribunal erred in law by making a costs order without giving the parties an opportunity to make submissions or tender evidence on costs.' "Whether special circumstances under s 88(1) of the Administrative Decisions Tribunal Act 1997 warranted an award of all of Usagi Ya Pty Ltd's costs." "Whether Eva Murar's claim for additional fire-related losses was clearly without merit because it was barred by the District Court consent judgment by principles of res judicata or issue estoppel." 'Whether the Appeal Panel should determine the costs issue itself rather than remit the matter to the Tribunal.']

Ratio Decidendi

The Tribunal erred in law by making a costs order without giving the parties an opportunity to be heard on costs, so the order had to be set aside. The Appeal Panel determined the costs issue itself because the parties had placed the relevant material before it. Although Eva Murar's fire damage claim was clearly without merit because the District Court consent judgment barred any further claim for the same fire-related loss and damage, the other matters relied on by the Tribunal did not amount to special circumstances warranting an award of all costs. The proper order was limited to Usagi Ya Pty Ltd's costs referable to Murar's pursuit of the fire damage claim in paragraphs 8–10 of her...

Court Disposition

Appeal allowed; Tribunal costs order set aside; substituted limited costs order made; no order as to appeal costs unless an application is filed.

Orders

  • ['The appeal is allowed.' 'Order No. 2 in the decision of the Tribunal dated 23 February 2005 is set aside.' "In lieu of this Order, the Appellant is to pay the Respondent's costs, as agreed or assessed, that are referable to the Appellant's pursuit of the claim for loss and damage set out in paragraphs 8 - 10 of...