Horwood v Memocorp Australia Pty Ltd (No 2) [2010] NSWADT 174

Horwood v Memocorp Australia Pty Ltd (No 2) [2010] NSWADT 174

It is fair to award the applicant 85% of his costs as the successful party in substance, particularly due to the relative strength of his claims and the weakness of the respondent's defences and cross-claim, but reduce the proportion to account for aspects of his case which were unsuccessful or weak, mainly regarding quantum of damages and his unconscionable conduct claim.

Parties
Applicant/cross Respondent: Richard Frank Horwood; Respondent/cross Applicant: Memocorp Australia Pty Ltd
Jurisdiction
Australia
Judgment Date
13 July 2010
Procedural Posture
Retail Lease Dispute / Costs Determination After Substantive Hearing and Judgment
Outcome
Substantial costs awarded to applicant at 85%; respondent's application for costs of compliance with summons dismissed.
Legal Topics
Retail Leases, Costs, Damages, Quiet Enjoyment, Unconscionable Conduct
Commercial Law Property Law Retail Leases Costs Damages Quiet Enjoyment Unconscionable Conduct

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Parties

Richard Frank Horwood

Applicant/cross Respondent

Memocorp Australia Pty Ltd

Respondent/cross Applicant

Procedural Posture

Retail Lease Dispute / Costs Determination After Substantive Hearing and Judgment

Legal Issues

  1. 1 Whether it is fair to award costs under section 88(1A) of the Administrative Decisions Tribunal Act 1997 in a retail lease dispute
  2. 2 The relative strengths of the parties' claims and defences regarding breach of the covenant of quiet enjoyment, quantum of damages, and cross-claims
  3. 3 Entitlement to costs of compliance with a summons to produce documents

Ratio Decidendi

It is fair to award the applicant 85% of his costs as the successful party in substance, particularly due to the relative strength of his claims and the weakness of the respondent's defences and cross-claim, but reduce the proportion to account for aspects of his case which were unsuccessful or weak, mainly regarding quantum of damages and his unconscionable conduct claim.

Court Disposition

Substantial costs awarded to applicant at 85%; respondent's application for costs of compliance with summons dismissed.

Orders

  • The Respondent/Cross Applicant is to pay 85% of the Applicant/Cross Respondent's costs of these proceedings, as agreed or assessed.