Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No 2) [2010] NSWADT 11

Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No 2) [2010] NSWADT 11

It was fair to order DCM to pay Meriton's costs because the proceeding against DCM was undefended and Meriton obtained ex parte judgment against it. It was not fair to order Mr Plant to pay Meriton's costs because, although Meriton's case was stronger, Mr Plant's case was not so weak as to have no tenable basis in fact or law, most issues raised by him were arguable, the proceedings were short and at first instance, and the contractual costs provisions of the Lease could not be used to undermine the statutory costs regime applying to Retail Leases Act proceedings.

Jurisdiction
Australia
Judgment Date
11 January 2010
Procedural Posture
Application for Costs in Retail Leases Division Proceedings Under the Retail Leases Act 1994 / Determined on the Papers After First Instance Decision and After Dismissal of the Second Respondent's Appeal
Outcome
Costs ordered against the First Respondent; application for costs against the Second Respondent dismissed.
Legal Topics
['costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'fairness Criterion for Costs in Tribunal Proceedings' 'retail Shop Lease' 'guarantor Liability' 'contractual Entitlement to Litigation Costs']
['costs' 'retail Leases' 'administrative Law' 'contract Law'] ['costs Under Section 88 of the Administrative Decisions Tribunal Act 1997' 'fairness Criterion for Costs in Tribunal Proceedings' 'retail Shop Lease' 'guarantor Liability' 'contractual Entitlement to Litigation Costs']

Case Brief

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Procedural Posture

Application for Costs in Retail Leases Division Proceedings Under the Retail Leases Act 1994 / Determined on the Papers After First Instance Decision and After Dismissal of the Second Respondent's Appeal

Legal Issues

  1. 1 ["Whether it was fair under section 88 of the Administrative Decisions Tribunal Act 1997 to order DCM Leases-Five Pty Ltd to pay Meriton's costs." "Whether it was fair under section 88 of the Administrative Decisions Tribunal Act 1997 to order Mr Plant to pay Meriton's costs." 'Whether a contractual entitlement to recover costs under the Lease could justify or require a costs order in Retail Leases Act 1994 proceedings.' "Whether the relative strengths of the parties' cases, the complexity of the proceedings, and other relevant matters justified departure from the presumption that each party bear its own costs."]

Ratio Decidendi

It was fair to order DCM to pay Meriton's costs because the proceeding against DCM was undefended and Meriton obtained ex parte judgment against it. It was not fair to order Mr Plant to pay Meriton's costs because, although Meriton's case was stronger, Mr Plant's case was not so weak as to have no tenable basis in fact or law, most issues raised by him were arguable, the proceedings were short and at first instance, and the contractual costs provisions of the Lease could not be used to undermine the statutory costs regime applying to Retail Leases Act proceedings.

Court Disposition

Costs ordered against the First Respondent; application for costs against the Second Respondent dismissed.

Orders

  • ["The First Respondent is to pay the Applicant's costs in the proceedings between them, as agreed or as assessed under the Legal Profession Act 2004." "The Applicant's application for an order for costs against the Second Respondent is dismissed."]