Jewell Bay Pty Ltd v DPT Operator Pty Ltd (No 2) [2010] NSWADT 204

Jewell Bay Pty Ltd v DPT Operator Pty Ltd (No 2) [2010] NSWADT 204

The earlier costs direction was not self-executing because the Tribunal had not made a further order and had not used words such as 'without further order of this Tribunal'; the extension of time was therefore granted. It was fair to order the Applicant to pay only one half of the Respondent's costs because the two primary issues took approximately equal time: the deemed assignment issue was evenly balanced, while the authorised use/classification issue was farfetched but not so untenable as to justify indemnity costs.

Jurisdiction
Australia
Judgment Date
17 August 2010
Procedural Posture
Retail Leases Proceedings; Costs / Decision on Costs on the Papers After Primary Decision
Outcome
Applicant ordered to pay one half of the Respondent's costs on the ordinary basis.
Legal Topics
['costs Discretion' 'extension of Time for Submissions' 'fairness Under S 88' 'assignment of Lease' 'consent to Assignment']
['retail Leases' 'administrative Law' 'costs'] ['costs Discretion' 'extension of Time for Submissions' 'fairness Under S 88' 'assignment of Lease' 'consent to Assignment']

Case Brief

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Procedural Posture

Retail Leases Proceedings; Costs / Decision on Costs on the Papers After Primary Decision

Legal Issues

  1. 1 ['Whether the Tribunal should grant a retrospective extension of time for the Respondent to file costs submissions.' 'Whether the order of 25 August 2009 was self-executing so that the costs issue had already closed.' 'Whether it was fair under s 88 of the Administrative Decisions Tribunal Act 1997 to award costs.' "Whether costs should be awarded by reference to the relative strength of the parties' positions on the two issues in the primary matter."]

Ratio Decidendi

The earlier costs direction was not self-executing because the Tribunal had not made a further order and had not used words such as 'without further order of this Tribunal'; the extension of time was therefore granted. It was fair to order the Applicant to pay only one half of the Respondent's costs because the two primary issues took approximately equal time: the deemed assignment issue was evenly balanced, while the authorised use/classification issue was farfetched but not so untenable as to justify indemnity costs.

Court Disposition

Applicant ordered to pay one half of the Respondent's costs on the ordinary basis.

Orders

  • ["Applicant to pay one half of Respondent's costs on the ordinary basis"]