O’Neill v Henry (No 2) [2009] NSWADT 294

O’Neill v Henry (No 2) [2009] NSWADT 294

It was fair to order the Applicant to pay the Second and Third Respondents' party-party legal costs and disbursements because no evidence connected them with the lockout, there was no factual basis for relief against them, the onus was on the Applicant to establish such a basis, and the claim against them had no tenable basis in fact or law. The Applicant's submissions about their conduct, evidence, mediation, and lack of legal representation did not justify disturbing the provisional costs order.

Jurisdiction
Australia
Judgment Date
27 November 2009
Procedural Posture
Retail Lease Proceedings Concerning Costs / Costs Determination on the Papers After Substantive Decision
Outcome
The provisional costs order in favour of the Second and Third Respondents was confirmed.
Legal Topics
['costs' 'party Party Costs' 'no Tenable Basis in Fact or Law' 'retail Lease Lockout']
['retail Leases' 'civil Procedure'] ['costs' 'party Party Costs' 'no Tenable Basis in Fact or Law' 'retail Lease Lockout']

Case Brief

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Procedural Posture

Retail Lease Proceedings Concerning Costs / Costs Determination on the Papers After Substantive Decision

Legal Issues

  1. 1 ["Whether it was fair under section 88 of the Administrative Decisions Tribunal Act 1997 to order the Applicant to pay the Second and Third Respondents' legal costs and disbursements." "Whether the Applicant's claim against the Second and Third Respondents had no tenable basis in fact or law."]

Ratio Decidendi

It was fair to order the Applicant to pay the Second and Third Respondents' party-party legal costs and disbursements because no evidence connected them with the lockout, there was no factual basis for relief against them, the onus was on the Applicant to establish such a basis, and the claim against them had no tenable basis in fact or law. The Applicant's submissions about their conduct, evidence, mediation, and lack of legal representation did not justify disturbing the provisional costs order.

Court Disposition

The provisional costs order in favour of the Second and Third Respondents was confirmed.

Orders

  • ['The Applicant is to pay on a party-party basis the legal costs and the disbursements incurred by the Second and Third Respondents in the proceedings between these parties.']