D & D Ventures Pty Ltd (In Liquidation) v Evans & Anor (No 2) [2004] NSWADT 283

D & D Ventures Pty Ltd (In Liquidation) v Evans & Anor (No 2) [2004] NSWADT 283

The Lessee's case was not wholly without conceivable merit because, although some grounds failed in law and most claims failed on the facts or construction, other issues were arguable and one breach was established without proof of loss. The possibility of transfer to the Supreme Court did not itself constitute special circumstances. However, the Lessee unreasonably rejected the Lessors' 17 October 2003 offer to settle by surrendering the remaining guarantee balance and each party bearing its own costs, when the hearing would be costly and the Lessee faced substantial litigation risk. That unreasonable rejection constituted special circumstances warranting party-party costs from 23...

Jurisdiction
Australia
Judgment Date
03 December 2004
Procedural Posture
Retail Leases Costs Application / On the Papers After Decision on Application and Cross Claim
Outcome
Costs awarded to the Respondent Lessors on a party-party basis from 23 October 2003; interim order restraining further drawings on the bank guarantee vacated; no order made declaring entitlement to or requiring release of the guarantee balance.
Legal Topics
['special Circumstances for Costs' 'calderbank Offers' 'party Party Costs' 'bank Guarantee' 'transfer to Supreme Court']
['retail Leases' 'costs' 'administrative Law' 'corporations'] ['special Circumstances for Costs' 'calderbank Offers' 'party Party Costs' 'bank Guarantee' 'transfer to Supreme Court']

Case Brief

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Procedural Posture

Retail Leases Costs Application / On the Papers After Decision on Application and Cross Claim

Legal Issues

  1. 1 ['Whether special circumstances under s 88(1) of the Administrative Decisions Tribunal Act 1997 warranted an award of costs.' "Whether the Lessee's case lacked merit such that costs should be awarded." "Whether the Lessee unreasonably rejected offers of compromise more favourable than the Tribunal's final orders." 'Whether the possibility of transfer to the Supreme Court under s 76A of the Retail Leases Act 1994 constituted special circumstances.' 'Whether the interim order prohibiting further drawings on the bank guarantee should be vacated and whether further orders concerning the guarantee should be made.']

Ratio Decidendi

The Lessee's case was not wholly without conceivable merit because, although some grounds failed in law and most claims failed on the facts or construction, other issues were arguable and one breach was established without proof of loss. The possibility of transfer to the Supreme Court did not itself constitute special circumstances. However, the Lessee unreasonably rejected the Lessors' 17 October 2003 offer to settle by surrendering the remaining guarantee balance and each party bearing its own costs, when the hearing would be costly and the Lessee faced substantial litigation risk. That unreasonable rejection constituted special circumstances warranting party-party costs from 23...

Court Disposition

Costs awarded to the Respondent Lessors on a party-party basis from 23 October 2003; interim order restraining further drawings on the bank guarantee vacated; no order made declaring entitlement to or requiring release of the guarantee balance.

Orders

  • ["The Lessee is to pay the Lessors' costs of these proceedings (including the costs of the present application) on a party-party basis, as agreed or assessed, as from 23 October 2003." 'The interim order made by the Tribunal on 22 May 2003, prohibiting the Lessors from making any further drawings on the bank...