Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 64

Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 64

The principal damages awarded supported an interest order at the District Court judgment debt rates, calculated to the date of decision, with a halving applied in the accrual period reflecting standard practice. Despite the Applicants’ limited success on some claims, the substantial disparity in the strengths of arguments on the main ground (breach of ‘exclusivity provisions’) justified a partial costs order (75%), and the Respondent’s settlement offer was not more favourable in net outcome than the judgment plus costs and thus did not affect the Applicants’ entitlement.

Parties
First Applicant: Joe Profilio; Second Applicant: Rozi Sajko; Respondent: Coogee Bay Village Pty Ltd
Jurisdiction
Australia
Judgment Date
31 March 2011
Procedural Posture
Retail Lease Dispute – Tribunal Proceeding / Costs and Interest Determination After Damages Judgment
Outcome
Interest and costs awarded to Applicants (partly). Respondent’s request for costs refused.
Legal Topics
Retail Leases, Damages Assessment, Interest on Judgment Debt, Costs (party Party and Indemnity), Offers of Settlement, Unconscionable Conduct
Commercial Law Property Law Administrative Law Retail Leases Damages Assessment Interest on Judgment Debt Costs (party Party and Indemnity) Offers of Settlement +1 more

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Parties

Joe Profilio

First Applicant

Rozi Sajko

Second Applicant

Coogee Bay Village Pty Ltd

Respondent

Procedural Posture

Retail Lease Dispute – Tribunal Proceeding / Costs and Interest Determination After Damages Judgment

Legal Issues

  1. 1 Whether and how much interest should be awarded on principal damages under Retail Leases Act 1994 (NSW) s 72A
  2. 2 Whether and what proportion of costs should be awarded under Administrative Decisions Tribunal Act 1997 (NSW) s 88

Ratio Decidendi

The principal damages awarded supported an interest order at the District Court judgment debt rates, calculated to the date of decision, with a halving applied in the accrual period reflecting standard practice. Despite the Applicants’ limited success on some claims, the substantial disparity in the strengths of arguments on the main ground (breach of ‘exclusivity provisions’) justified a partial costs order (75%), and the Respondent’s settlement offer was not more favourable in net outcome than the judgment plus costs and thus did not affect the Applicants’ entitlement.

Court Disposition

Interest and costs awarded to Applicants (partly). Respondent’s request for costs refused.

Orders

  • The Respondent is to pay to the Applicants the sum of $29,808 as interest on previously ordered damages of $86,705.
  • The Respondent is to pay 75% of the Applicants' costs of these proceedings, as agreed or assessed on a party-party basis.