Kyluk Pty Ltd v The Bike Mason Pty Ltd & Anor [2007] NSWADT 96

Kyluk Pty Ltd v The Bike Mason Pty Ltd & Anor [2007] NSWADT 96

The Second Respondent's participation in mediation, entry into an agreement to pay outstanding rent by instalments, complete failure to honour that agreement, and failure to provide any explanation were special circumstances under s88 of the Administrative Decisions Tribunal Act 1997. That conduct was out of the ordinary and grossly unreasonable, caused serious unfairness to the Applicant by creating additional delay and expense, and justified an order that the Second Respondent pay the Applicant's costs.

Jurisdiction
Australia
Judgment Date
20 April 2007
Procedural Posture
Retail Tenancy Dispute Costs Application / On the Papers After Ex Parte Hearing
Outcome
Costs awarded in favour of the Applicant against the Second Respondent.
Legal Topics
['special Circumstances for Costs' 'mediation of Retail Tenancy Dispute' 'failure to Honour Settlement Agreement' 'unpaid Rent']
['retail Leases' 'costs'] ['special Circumstances for Costs' 'mediation of Retail Tenancy Dispute' 'failure to Honour Settlement Agreement' 'unpaid Rent']

Case Brief

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Procedural Posture

Retail Tenancy Dispute Costs Application / On the Papers After Ex Parte Hearing

Legal Issues

  1. 1 ['Whether special circumstances existed under s88 of the Administrative Decisions Tribunal Act 1997 to justify a costs order against the Second Respondent.' 'Whether a settlement agreement reached following mediation could be considered despite s69 of the Retail Leases Act 1994.' "Whether the Second Respondent's failure to honour the post-mediation agreement justified an order for costs."]

Ratio Decidendi

The Second Respondent's participation in mediation, entry into an agreement to pay outstanding rent by instalments, complete failure to honour that agreement, and failure to provide any explanation were special circumstances under s88 of the Administrative Decisions Tribunal Act 1997. That conduct was out of the ordinary and grossly unreasonable, caused serious unfairness to the Applicant by creating additional delay and expense, and justified an order that the Second Respondent pay the Applicant's costs.

Court Disposition

Costs awarded in favour of the Applicant against the Second Respondent.

Orders

  • ["The Second Respondent is to pay the Applicant's costs of these proceedings as assessed or agreed."]