Hondroyiannis and anor v Adwell Holdings Pty Ltd (No 2) [2008] NSWADT 92

Hondroyiannis and anor v Adwell Holdings Pty Ltd (No 2) [2008] NSWADT 92

Special circumstances warranted a costs order because the Respondent had permitted the Applicants to load and unload from the eastern parking area, had no contractual entitlement to require them to stop, had no valid basis to serve a notice purporting to terminate the lease, and through its Centre manager acted grossly unreasonably in refusing to cater for the Applicants' legitimate need for proper loading facilities except by impractical means. This conduct was out of the ordinary, forced the Applicants to commence proceedings, and the Respondent persisted to trial with a case lacking merit in its most important component. The Applicants' failure on some claims did not displace the...

Jurisdiction
Australia
Judgment Date
20 March 2008
Procedural Posture
Retail Leases Costs Application / On the Papers After the Applicants Succeeded in Part in Substantive Retail Lease Proceedings
Outcome
Application for costs upheld; indemnity costs refused.
Legal Topics
['special Circumstances Warranting Costs' 'party Party Costs' 'indemnity Costs' 'termination of Retail Lease' 'loading and Unloading Access']
['retail Leases' 'costs'] ['special Circumstances Warranting Costs' 'party Party Costs' 'indemnity Costs' 'termination of Retail Lease' 'loading and Unloading Access']

Case Brief

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Procedural Posture

Retail Leases Costs Application / On the Papers After the Applicants Succeeded in Part in Substantive Retail Lease Proceedings

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs under section 88(1) of the Administrative Decisions Tribunal Act 1997 as applied by section 77A of the Retail Leases Act 1994.' "Whether the Respondent's conduct in purporting to terminate the lease and opposing the Applicants' loading arrangements was grossly unreasonable or seriously unfair." "Whether the Applicants' partial lack of success on unconscionable conduct, misrepresentation and compensation claims should preclude a costs order." 'Whether indemnity costs should be ordered.']

Ratio Decidendi

Special circumstances warranted a costs order because the Respondent had permitted the Applicants to load and unload from the eastern parking area, had no contractual entitlement to require them to stop, had no valid basis to serve a notice purporting to terminate the lease, and through its Centre manager acted grossly unreasonably in refusing to cater for the Applicants' legitimate need for proper loading facilities except by impractical means. This conduct was out of the ordinary, forced the Applicants to commence proceedings, and the Respondent persisted to trial with a case lacking merit in its most important component. The Applicants' failure on some claims did not displace the...

Court Disposition

Application for costs upheld; indemnity costs refused.

Orders

  • ["The Respondent is to pay the Applicants' costs of and incidental to these proceedings, as agreed or as assessed on a party-party basis."]