Risorto & Ors v Hanjoena Pty Ltd [2004] NSWADT 171

Risorto & Ors v Hanjoena Pty Ltd [2004] NSWADT 171

The Applicants had no tenable basis for claiming entitlement to urgent interim relief to remain in possession beyond 1 October 2003 or to a three year lease from 1 April 2003. The evidence did not establish that the Respondent offered or agreed to grant such a lease, and the Applicants commenced proceedings without warning in contradiction of their earlier agreement to vacate. Although the proceedings were not found to have been instituted vexatiously, the claims were untenable in fact and law and should not have been commenced or continued, which constituted special circumstances warranting a costs order, excluding costs connected with the Respondent's submissions dated 11 June 2004...

Jurisdiction
Australia
Judgment Date
17 August 2004
Procedural Posture
Costs Application in Retail Leases Division Proceedings / After Dismissal of Urgent Interim Orders Application and Withdrawal/discontinuance of Substantive Application
Outcome
Respondent's application for costs granted, with an exclusion for costs incurred in connection with the Respondent's submissions dated 11 June 2004.
Legal Topics
['special Circumstances for Costs' 'discontinued Proceedings' 'untenable Claim in Fact and Law' 'alleged Lease or Agreement for Lease']
['retail Leases' 'costs'] ['special Circumstances for Costs' 'discontinued Proceedings' 'untenable Claim in Fact and Law' 'alleged Lease or Agreement for Lease']

Case Brief

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Procedural Posture

Costs Application in Retail Leases Division Proceedings / After Dismissal of Urgent Interim Orders Application and Withdrawal/discontinuance of Substantive Application

Legal Issues

  1. 1 ["Whether special circumstances existed warranting an order that the Applicants pay the Respondent's costs." "Whether the Applicants' discontinued claims for urgent interim relief and for a three year lease had a tenable basis in fact or law." 'Whether any costs should be excluded from the costs order.']

Ratio Decidendi

The Applicants had no tenable basis for claiming entitlement to urgent interim relief to remain in possession beyond 1 October 2003 or to a three year lease from 1 April 2003. The evidence did not establish that the Respondent offered or agreed to grant such a lease, and the Applicants commenced proceedings without warning in contradiction of their earlier agreement to vacate. Although the proceedings were not found to have been instituted vexatiously, the claims were untenable in fact and law and should not have been commenced or continued, which constituted special circumstances warranting a costs order, excluding costs connected with the Respondent's submissions dated 11 June 2004...

Court Disposition

Respondent's application for costs granted, with an exclusion for costs incurred in connection with the Respondent's submissions dated 11 June 2004.

Orders

  • ["Applicants to pay the Respondent's costs with the exception of any costs incurred in connection with the Submissions of the Respondent dated 11 June 2004." 'The amount of such costs to be as agreed or assessed.']