Heatherway Pty Ltd v Dykes & Wildie (No 2) [2007] NSWADT 196

Heatherway Pty Ltd v Dykes & Wildie (No 2) [2007] NSWADT 196

Despite findings that each side’s conduct led to some increase in costs and could be considered special circumstances under s 88(1) of the ADT Act, the Tribunal found that the amounts in question were insubstantial and that the cost of assessing and awarding costs would outweigh any benefit. Save for a previous costs order made on 18 April 2005, there would be no order as to costs for the proceedings at first instance.

Parties
Applicant/cross Respondent: Heatherway Pty Ltd; First Respondent/first Cross Applicant: Peter James Dykes; Second Respondent/second Cross Applicant: Paul Richard Wildie
Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Retail Tenancy and Unconscionable Conduct Claims / Costs Determination at First Instance
Outcome
No order as to costs (save for the 18 April 2005 order) for the proceedings at first instance.
Legal Topics
Retail Leases, Unconscionable Conduct, Costs
Commercial Law Property Law Retail Leases Unconscionable Conduct Costs

Case Brief

Summary, issues, holding and outcome

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Parties

Heatherway Pty Ltd

Applicant/cross Respondent

Peter James Dykes

First Respondent/first Cross Applicant

Paul Richard Wildie

Second Respondent/second Cross Applicant

Procedural Posture

Retail Tenancy and Unconscionable Conduct Claims / Costs Determination at First Instance

Legal Issues

  1. 1 Whether special circumstances existed to warrant an award of costs under s 88(1) of the Administrative Decisions Tribunal Act 1997 in a retail tenancy proceeding.
  2. 2 Whether the conduct of the parties during the proceedings, including choice of forum, delay in reducing claims, and prosecution of unmeritorious claims, justified a costs order.

Ratio Decidendi

Despite findings that each side’s conduct led to some increase in costs and could be considered special circumstances under s 88(1) of the ADT Act, the Tribunal found that the amounts in question were insubstantial and that the cost of assessing and awarding costs would outweigh any benefit. Save for a previous costs order made on 18 April 2005, there would be no order as to costs for the proceedings at first instance.

Court Disposition

No order as to costs (save for the 18 April 2005 order) for the proceedings at first instance.

Orders

  • Subject only to the costs order made on 18 April 2005, there will be no order as to the costs of the proceedings at first instance in this matter.