Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46

Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46

Special circumstances warranted a costs order because the appellants pursued a weak appeal on the principal liability issue that was doomed to fail, although they succeeded on the subsidiary interest point. To reflect that partial success, the appellants were ordered to pay 70% of the respondent's costs of and incidental to the appeal.

Jurisdiction
Australia
Judgment Date
29 August 2007
Procedural Posture
Retail Leases Costs Application / Appeal Panel Determination on the Papers of the Respondent's Application for Costs of the Appeal
Outcome
Costs application allowed in part for the appeal proceedings.
Legal Topics
['special Circumstances for Costs' 'costs of Appeal' 'weak Appeals' 'personal Guarantees Under Lease' 'interest']
['retail Leases' 'administrative Law' 'costs'] ['special Circumstances for Costs' 'costs of Appeal' 'weak Appeals' 'personal Guarantees Under Lease' 'interest']

Case Brief

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Procedural Posture

Retail Leases Costs Application / Appeal Panel Determination on the Papers of the Respondent's Application for Costs of the Appeal

Legal Issues

  1. 1 ['Whether special circumstances warranted an award of costs under s 88 of the Administrative Decisions Tribunal Act 1997 in respect of the appeal.' "Whether the appellants' weak appeal on liability justified an adverse costs order notwithstanding partial success on interest." "What proportion of the respondent's appeal costs the appellants should pay."]

Ratio Decidendi

Special circumstances warranted a costs order because the appellants pursued a weak appeal on the principal liability issue that was doomed to fail, although they succeeded on the subsidiary interest point. To reflect that partial success, the appellants were ordered to pay 70% of the respondent's costs of and incidental to the appeal.

Court Disposition

Costs application allowed in part for the appeal proceedings.

Orders

  • ["That the appellants pay 70% of the respondent's costs of and incidental to the appeal, as agreed or assessed."]