Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56

Ung v Golden Century Property Investments Pty Ltd [2018] NSWCATCD 56

The lessor did not establish special circumstances warranting a departure from the usual position that each party bears its own costs. The lessee's interim application was not shown to have no tenable basis in fact or law, nor was it frivolous, vexatious, misconceived or lacking in substance. The withdrawal of the substantive application was not a complete capitulation warranting costs in the Tribunal's costs regime, and in any event the early withdrawal promoted the just, quick and cheap resolution of the real issues and saved party and Tribunal resources.

Jurisdiction
Australia
Judgment Date
17 October 2018
Procedural Posture
Costs Application in Consumer and Commercial Division Retail Lease Proceedings / On the Papers After Withdrawal and Dismissal of Substantive Application
Outcome
No order as to costs; each party to bear their own costs of both proceedings.
Legal Topics
['special Circumstances for Costs in Ncat' 'costs After Withdrawal of Proceedings' 'interim Relief Against Forfeiture' 'determination on the Papers']
['civil Procedure' 'costs' 'retail Leases'] ['special Circumstances for Costs in Ncat' 'costs After Withdrawal of Proceedings' 'interim Relief Against Forfeiture' 'determination on the Papers']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Retail Lease Proceedings / On the Papers After Withdrawal and Dismissal of Substantive Application

Legal Issues

  1. 1 ["Whether the Tribunal should dispense with a hearing and determine the lessor's costs application on the papers under s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW)." 'Whether special circumstances under s 60(2) of the Civil and Administrative Tribunal Act 2013 (NSW) warranted an award of costs to the respondent in the interim orders proceeding.' "Whether the applicant's withdrawal of the substantive application constituted special circumstances warranting a costs order." 'Whether discretionary considerations militated against an adverse costs order even if special circumstances existed.']

Ratio Decidendi

The lessor did not establish special circumstances warranting a departure from the usual position that each party bears its own costs. The lessee's interim application was not shown to have no tenable basis in fact or law, nor was it frivolous, vexatious, misconceived or lacking in substance. The withdrawal of the substantive application was not a complete capitulation warranting costs in the Tribunal's costs regime, and in any event the early withdrawal promoted the just, quick and cheap resolution of the real issues and saved party and Tribunal resources.

Court Disposition

No order as to costs; each party to bear their own costs of both proceedings.

Orders

  • ["Pursuant to s 50(2) of the Civil and Administrative Tribunal Act 2013 (NSW), in respect of the application by the respondent, Golden Century Property Investments Pty Ltd, for its costs of the proceedings constituted by File Nos. COM 18/34598 and COM 18/34601, the Tribunal dispenses with a hearing requiring the...