Torchia v Swanton [2010] NSWADT 142

Torchia v Swanton [2010] NSWADT 142

It was fair to award the Respondent costs because the Applicants commenced substantial retail lease and unconscionable conduct proceedings, did not support them with sworn evidence, continued after warnings and directions, caused the Respondent reasonably to engage solicitors and counsel and file a dismissal motion, and then withdrew without explanation after significant costs had been incurred. The Applicants' failure to heed the 19 June 2009 warning and offer to withdraw without costs, together with the late abandonment of the proceedings, was a sufficient or unusual feature warranting indemnity costs. The Respondent's detailed costs material was fair and reasonable and unchallenged, so...

Jurisdiction
Australia
Judgment Date
09 June 2010
Procedural Posture
Combined Retail Tenancy Claim and Unconscionable Conduct Claim / Costs Application Decided on the Papers After the Applicants Withdrew Their Application and It Was Dismissed
Outcome
The Applicants were ordered to pay the Respondent's costs of the whole proceedings on an indemnity basis in the sum of $10,113.50.
Legal Topics
['indemnity Costs' 'withdrawal of Proceedings' 'administrative Decisions Tribunal Costs Discretion' 'sum Certain Costs Order']
['retail Leases' 'civil Procedure' 'costs'] ['indemnity Costs' 'withdrawal of Proceedings' 'administrative Decisions Tribunal Costs Discretion' 'sum Certain Costs Order']

Case Brief

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Procedural Posture

Combined Retail Tenancy Claim and Unconscionable Conduct Claim / Costs Application Decided on the Papers After the Applicants Withdrew Their Application and It Was Dismissed

Legal Issues

  1. 1 ['Whether it was fair under s 88 of the Administrative Decisions Tribunal Act 1997 to award costs to the Respondent after the Applicants withdrew the proceedings.' 'Whether costs should be awarded on an indemnity basis.' 'Whether the Tribunal should make a final costs order in a sum certain.']

Ratio Decidendi

It was fair to award the Respondent costs because the Applicants commenced substantial retail lease and unconscionable conduct proceedings, did not support them with sworn evidence, continued after warnings and directions, caused the Respondent reasonably to engage solicitors and counsel and file a dismissal motion, and then withdrew without explanation after significant costs had been incurred. The Applicants' failure to heed the 19 June 2009 warning and offer to withdraw without costs, together with the late abandonment of the proceedings, was a sufficient or unusual feature warranting indemnity costs. The Respondent's detailed costs material was fair and reasonable and unchallenged, so...

Court Disposition

The Applicants were ordered to pay the Respondent's costs of the whole proceedings on an indemnity basis in the sum of $10,113.50.

Orders

  • ['The Applicants pay the costs of the Respondent on an indemnity basis in $10,113.50.']