Harbourside Catering Pty Limited v TMG Developments Pty Ltd [2005] NSWADT 238

Harbourside Catering Pty Limited v TMG Developments Pty Ltd [2005] NSWADT 238

The proceedings were properly commenced because the Respondent had refused consent without providing reasons, and no special circumstances justified costs before the Respondent supplied its reasons. However, once the Applicant received the Respondent's reasons on 22 April 2005, it had an obligation to assess whether the Tribunal proceedings should continue. By at least 29 April 2005 the Applicant continued the matter despite not complying with directions, not seeking an urgent hearing before the critical rescission date, and later obtaining a stay on the basis of Supreme Court proceedings that were never commenced. Those post-22 April circumstances were special circumstances warranting an...

Jurisdiction
Australia
Judgment Date
20 October 2005
Procedural Posture
Retail Leases Division Costs Application / Costs Determination After Withdrawal of Proceedings
Outcome
Applicant ordered to pay the Respondent's costs from and including 29 April 2005; no order for costs of the hearing on 30 September 2005; proceedings withdrawn.
Legal Topics
['assignment of Lease' "lessor's Refusal of Consent" 'special Circumstances for Costs' 'withdrawal of Proceedings']
['retail Leases' 'civil Procedure' 'costs'] ['assignment of Lease' "lessor's Refusal of Consent" 'special Circumstances for Costs' 'withdrawal of Proceedings']

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Procedural Posture

Retail Leases Division Costs Application / Costs Determination After Withdrawal of Proceedings

Legal Issues

  1. 1 ["Whether special circumstances existed warranting an order that the Applicant pay the Respondent's costs of and incidental to the Application." 'If a costs order was warranted, what period of costs should be awarded.']

Ratio Decidendi

The proceedings were properly commenced because the Respondent had refused consent without providing reasons, and no special circumstances justified costs before the Respondent supplied its reasons. However, once the Applicant received the Respondent's reasons on 22 April 2005, it had an obligation to assess whether the Tribunal proceedings should continue. By at least 29 April 2005 the Applicant continued the matter despite not complying with directions, not seeking an urgent hearing before the critical rescission date, and later obtaining a stay on the basis of Supreme Court proceedings that were never commenced. Those post-22 April circumstances were special circumstances warranting an...

Court Disposition

Applicant ordered to pay the Respondent's costs from and including 29 April 2005; no order for costs of the hearing on 30 September 2005; proceedings withdrawn.

Orders

  • ['The Applicant pay the costs of the Respondent from and including 29 April 2005 as assessed or agreed.' 'No order for costs of the hearing 30 September 2005.' 'Note: that the Applicant has withdrawn the proceedings in this Tribunal.']