Murar v Usagi Ya Pty Ltd (No 2) (RLD) [2005] NSWADTAP 57

Murar v Usagi Ya Pty Ltd (No 2) (RLD) [2005] NSWADTAP 57

Usagi Ya's costs application was not out of time because it was the opposing party's submissions filed within 28 days after Ms Murar's costs application. Ms Murar was not entitled to part of her appeal costs because the Tribunal's decision on the remaining costs at first instance was not clearly unmeritorious and Usagi Ya's defence of it was not so unjustifiable as to constitute special circumstances; moreover, Ms Murar's continued challenge to the fire damage costs meant an appeal hearing was required. Usagi Ya was entitled to appeal costs attributable to the fire damage costs issue because Ms Murar's challenge to that part of the Tribunal's decision lacked merit, but 75% was excessive...

Jurisdiction
Australia
Judgment Date
15 November 2005
Procedural Posture
Retail Lease Proceedings; Costs Application on Appeal / Appeal Panel Determination on the Papers of Applications by Both Parties for Costs of the Appeal
Outcome
The Appellant's costs application was dismissed and the Respondent was awarded 50% of its costs of the appeal, as agreed or assessed.
Legal Topics
['special Circumstances Warranting Costs' 'costs of Appeal' 'procedural Fairness' 'res Judicata' 'unmeritorious Claims']
['administrative Law' 'retail Leases' 'costs'] ['special Circumstances Warranting Costs' 'costs of Appeal' 'procedural Fairness' 'res Judicata' 'unmeritorious Claims']

Case Brief

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Procedural Posture

Retail Lease Proceedings; Costs Application on Appeal / Appeal Panel Determination on the Papers of Applications by Both Parties for Costs of the Appeal

Legal Issues

  1. 1 ["Whether the Respondent's application for costs was filed out of time under Order No 4 of the Appeal Panel's earlier decision." "Whether the Appellant should receive part of her costs of the appeal because the Respondent's opposition to the appeal, except as to fire damage costs, was clearly unmeritorious." "Whether the Respondent should receive a proportion of its costs of the appeal because the Appellant's challenge to the Tribunal's decision on fire damage costs was unmeritorious." "What proportion of the Respondent's appeal costs could fairly be attributed to the Appellant's challenge to the fire damage costs at first instance."]

Ratio Decidendi

Usagi Ya's costs application was not out of time because it was the opposing party's submissions filed within 28 days after Ms Murar's costs application. Ms Murar was not entitled to part of her appeal costs because the Tribunal's decision on the remaining costs at first instance was not clearly unmeritorious and Usagi Ya's defence of it was not so unjustifiable as to constitute special circumstances; moreover, Ms Murar's continued challenge to the fire damage costs meant an appeal hearing was required. Usagi Ya was entitled to appeal costs attributable to the fire damage costs issue because Ms Murar's challenge to that part of the Tribunal's decision lacked merit, but 75% was excessive...

Court Disposition

The Appellant's costs application was dismissed and the Respondent was awarded 50% of its costs of the appeal, as agreed or assessed.

Orders

  • ["The Appellant's application for costs in relation to the appeal is dismissed." "The Appellant is to pay 50% of the Respondent's costs of the appeal, as agreed or assessed."]