Cihan v City Tabaconist Pty Ltd & Gebara [2016] NSWCATCD 26

Cihan v City Tabaconist Pty Ltd & Gebara [2016] NSWCATCD 26

Special circumstances warranted a costs order because the applicant was put to the expense of proving his claim against defences that lacked factual and legal substance and were ultimately dismissed. However, because the first respondent demonstrated that damages should be assessed consistently with recent Tribunal decisions on a landlord's duty to mitigate, the first respondent should not be liable for all of the applicant's costs. The appropriate order was that the first respondent pay 50% of the applicant's costs.

Jurisdiction
Australia
Judgment Date
08 April 2016
Procedural Posture
Costs Application in Consumer and Commercial Division Proceedings / On the Papers After Costs Were Reserved in the Substantive Decision
Outcome
The first respondent was ordered to pay 50% of the applicant's costs of and incidental to the proceedings, including submissions on costs.
Legal Topics
['special Circumstances for Costs Under S60 of the Civil and Administrative Tribunal Act 2013' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'calderbank Offers' 'mitigation of Loss in Lease Damages' 'assessment of Costs']
['costs' 'consumer and Commercial Proceedings' 'retail Leases'] ['special Circumstances for Costs Under S60 of the Civil and Administrative Tribunal Act 2013' 'rule 38 of the Civil and Administrative Tribunal Rules 2014' 'calderbank Offers' 'mitigation of Loss in Lease Damages' 'assessment of Costs']

Case Brief

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Procedural Posture

Costs Application in Consumer and Commercial Division Proceedings / On the Papers After Costs Were Reserved in the Substantive Decision

Legal Issues

  1. 1 ['Whether there were special circumstances warranting an award of costs under s60 of the Civil and Administrative Tribunal Act 2013.' "Whether rejection of the first respondent's offer disentitled the applicant to costs or entitled the first respondent to costs." "Whether the first respondent's partial success on mitigation meant it should not bear all of the applicant's costs."]

Ratio Decidendi

Special circumstances warranted a costs order because the applicant was put to the expense of proving his claim against defences that lacked factual and legal substance and were ultimately dismissed. However, because the first respondent demonstrated that damages should be assessed consistently with recent Tribunal decisions on a landlord's duty to mitigate, the first respondent should not be liable for all of the applicant's costs. The appropriate order was that the first respondent pay 50% of the applicant's costs.

Court Disposition

The first respondent was ordered to pay 50% of the applicant's costs of and incidental to the proceedings, including submissions on costs.

Orders

  • ['The first respondent shall pay 50% of the costs of the applicant of and incidental to the proceedings including the submissions on costs as agreed and failing agreement within 28 days of the date of this order as assessed under Part 4.3, Div 7 of the Legal Profession Uniform Law Application Act 2014 (NSW).' 'The...