Capsanis v Omoso Holdings Pty Ltd [2007] NSWADTAP 75

Capsanis v Omoso Holdings Pty Ltd [2007] NSWADTAP 75

It was open to the Tribunal to find, on the correspondence and evidence, that the appellant granted relief from rent until 8 December 2004 and that the respondent relied on that relief. The $750 legal costs item should not be added because there was no evidence of a bill and recovery would not accord with the Legal Profession Act 2004. The Tribunal did not deny procedural fairness by making no costs order where the appellant had made no costs application during the proceedings, and in any event there were no special circumstances justifying a costs order.

Jurisdiction
Australia
Judgment Date
21 December 2007
Procedural Posture
Appeal Concerning Retail Lease Dispute / Appeal Against Order of the Retail Leases Division of the Tribunal Made Under S 72 of the Retail Leases Act 1994
Outcome
Appeal dismissed.
Legal Topics
['termination of Lease' 'security Bond' 'waiver of Rent' "lessor's Legal Costs" 'procedural Fairness' 'tribunal Costs Discretion']
['retail Leases' 'administrative Law' 'contract Law' 'costs'] ['termination of Lease' 'security Bond' 'waiver of Rent' "lessor's Legal Costs" 'procedural Fairness' 'tribunal Costs Discretion']

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Procedural Posture

Appeal Concerning Retail Lease Dispute / Appeal Against Order of the Retail Leases Division of the Tribunal Made Under S 72 of the Retail Leases Act 1994

Legal Issues

  1. 1 ['Whether the Tribunal erred in finding that the appellant waived rent until 8 December 2004.' "Whether the Tribunal erred by excluding $750 for the lessor's legal costs from the calculation of amounts due." 'Whether the Tribunal denied procedural fairness by not giving the appellant an opportunity to apply for costs after the result was known.' 'Whether leave should be granted under s 113(2)(b) of the Administrative Decisions Tribunal Act 1997 to extend the appeal to the merits.']

Ratio Decidendi

It was open to the Tribunal to find, on the correspondence and evidence, that the appellant granted relief from rent until 8 December 2004 and that the respondent relied on that relief. The $750 legal costs item should not be added because there was no evidence of a bill and recovery would not accord with the Legal Profession Act 2004. The Tribunal did not deny procedural fairness by making no costs order where the appellant had made no costs application during the proceedings, and in any event there were no special circumstances justifying a costs order.

Court Disposition

Appeal dismissed.

Orders

  • ['Appeal dismissed.']