Fagerlund v PPS Nominees Pty Ltd (No 2) [2011] NSWADT 52

Fagerlund v PPS Nominees Pty Ltd (No 2) [2011] NSWADT 52

Although apart from the offers of compromise there were no factors warranting departure from the usual order that each party bear its own costs, the Respondent twice communicated the deficiencies in the Applicants' case with precision after discovery and service of evidence, made offers substantially more favourable to the Applicants than the Tribunal's final orders, and the Applicants rejected those offers without giving any reason. It was therefore fair to order that the parties bear their own costs up to 7 April 2009 and that thereafter the Applicants pay the Respondent's costs on an indemnity basis.

Jurisdiction
Australia
Judgment Date
14 March 2011
Procedural Posture
Costs in Retail Leases Division Proceedings / Costs Determination on the Papers After Decision Delivered on 3 February 2011
Outcome
The parties bear their own costs up to and until 7 April 2009 and thereafter the Applicants pay the Respondent's costs on an indemnity basis.
Legal Topics
['misleading and Deceptive Conduct' 'unconscionable Conduct' 'calderbank Offer' 'indemnity Costs']
['administrative Law' 'retail Leases' 'costs'] ['misleading and Deceptive Conduct' 'unconscionable Conduct' 'calderbank Offer' 'indemnity Costs']

Case Brief

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Procedural Posture

Costs in Retail Leases Division Proceedings / Costs Determination on the Papers After Decision Delivered on 3 February 2011

Legal Issues

  1. 1 ['Whether it was fair under s.88 of the Administrative Decisions Tribunal Act (1997) to depart from the usual order that each party bear its own costs.' "Whether the Respondent's rejected Calderbank offers justified an order that the Applicants pay the Respondent's costs on an indemnity basis after 7 April 2009."]

Ratio Decidendi

Although apart from the offers of compromise there were no factors warranting departure from the usual order that each party bear its own costs, the Respondent twice communicated the deficiencies in the Applicants' case with precision after discovery and service of evidence, made offers substantially more favourable to the Applicants than the Tribunal's final orders, and the Applicants rejected those offers without giving any reason. It was therefore fair to order that the parties bear their own costs up to 7 April 2009 and that thereafter the Applicants pay the Respondent's costs on an indemnity basis.

Court Disposition

The parties bear their own costs up to and until 7 April 2009 and thereafter the Applicants pay the Respondent's costs on an indemnity basis.

Orders

  • ['The parties bear their own costs up and until 7 April 2009.' 'Thereafter, the Applicants pay the Respondents costs on an indemnity basis.']