Nawi No 3 Pty Ltd & Ors v ING Management Ltd [2005] NSWADT 235

Nawi No 3 Pty Ltd & Ors v ING Management Ltd [2005] NSWADT 235

The Applicants maintained a jurisdictional argument against s 76(2) of the Retail Leases Act 1994 that was clearly without merit, failed effectively to prosecute their Local Court transfer motion which might have enabled the Tribunal to deal with the whole dispute, and then withdrew their Tribunal application after causing the Respondent to incur costs, including withdrawing an unconscionable conduct argument that had some prospect of success. Those circumstances were special circumstances warranting an award of costs under s 88 of the Administrative Decisions Tribunal Act 1997, but the matter was not so straightforward as to justify costs of the costs application or indemnity costs.

Jurisdiction
Australia
Judgment Date
17 October 2005
Procedural Posture
Retail Tenancy Claim and Unconscionable Conduct Claim; Application for Costs / Decision on Costs Following Withdrawal and Dismissal of the Applicants' Tribunal Application
Outcome
Costs awarded to the Respondent on a party-party basis; indemnity costs refused.
Legal Topics
['retail Tenancy Dispute' 'unconscionable Conduct Claim' 'tribunal Jurisdiction' 'special Circumstances for Costs' 'party Party Costs' 'indemnity Costs']
['retail Leases' 'administrative Law' 'costs'] ['retail Tenancy Dispute' 'unconscionable Conduct Claim' 'tribunal Jurisdiction' 'special Circumstances for Costs' 'party Party Costs' 'indemnity Costs']

Case Brief

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Procedural Posture

Retail Tenancy Claim and Unconscionable Conduct Claim; Application for Costs / Decision on Costs Following Withdrawal and Dismissal of the Applicants' Tribunal Application

Legal Issues

  1. 1 ['Whether the Respondent Lessor should obtain an order for costs against the Applicant Lessees following withdrawal of their Tribunal application.' 'Whether special circumstances warranting an award of costs existed under s 88 of the Administrative Decisions Tribunal Act 1997 as applied by s 77A of the Retail Leases Act 1994.' 'Whether the Tribunal lacked jurisdiction over the retail tenancy claim because issues were already the subject of Local Court proceedings under s 76(2) of the Retail Leases Act 1994.' 'Whether costs should be awarded on an indemnity basis or a party-party basis.']

Ratio Decidendi

The Applicants maintained a jurisdictional argument against s 76(2) of the Retail Leases Act 1994 that was clearly without merit, failed effectively to prosecute their Local Court transfer motion which might have enabled the Tribunal to deal with the whole dispute, and then withdrew their Tribunal application after causing the Respondent to incur costs, including withdrawing an unconscionable conduct argument that had some prospect of success. Those circumstances were special circumstances warranting an award of costs under s 88 of the Administrative Decisions Tribunal Act 1997, but the matter was not so straightforward as to justify costs of the costs application or indemnity costs.

Court Disposition

Costs awarded to the Respondent on a party-party basis; indemnity costs refused.

Orders

  • ['The Applicants are to pay the costs incurred by the Respondent in these proceedings in the Tribunal, as assessed or agreed on a party-party basis, up to and including the costs of the hearing of 20 May 2005 and including the costs reserved at the hearing of 9 March 2005.']