Garces v TMG Argyle Pty Ltd and another [2011] NSWADT 101

Garces v TMG Argyle Pty Ltd and another [2011] NSWADT 101

It was fair to order the respondents to pay the applicant's costs because the proceeding was commercial in nature, the applicant obtained a successful outcome after the respondents withdrew and consented to orders that the notice of breach was of no force or effect, the respondents' reliance on the notice was weak, the respondents failed to comply with Tribunal directions and did not provide timely explanations, and their defence and non-compliance prolonged the proceedings.

Jurisdiction
Australia
Judgment Date
13 May 2011
Procedural Posture
Retail Leases Proceeding; Application for Costs / On the Papers; Costs Determined After Proceedings Otherwise Concluded Save as to Costs
Outcome
Costs awarded to the applicant.
Legal Topics
['retail Lease Costs' 'tribunal Discretion to Award Costs' 'failure to Comply With Tribunal Directions' 'withdrawal of Notice of Breach' 'without Prejudice Communications']
['retail Leases' 'costs' 'administrative Law'] ['retail Lease Costs' 'tribunal Discretion to Award Costs' 'failure to Comply With Tribunal Directions' 'withdrawal of Notice of Breach' 'without Prejudice Communications']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Retail Leases Proceeding; Application for Costs / On the Papers; Costs Determined After Proceedings Otherwise Concluded Save as to Costs

Legal Issues

  1. 1 ['Whether it was fair under s 88 of the Administrative Decisions Tribunal Act 1997 to depart from the general principle that each party bear its own costs.' "Whether the respondents' withdrawal of the notice of breach and consent to orders showed the applicant was the successful party and the respondents' reliance on the notice was weak." "Whether the respondents' failure to comply with Tribunal directions and their conduct prolonged or unnecessarily disadvantaged the applicant in the proceedings." "Whether the respondents' letter dated 29 March 2011 was protected by without prejudice privilege."]

Ratio Decidendi

It was fair to order the respondents to pay the applicant's costs because the proceeding was commercial in nature, the applicant obtained a successful outcome after the respondents withdrew and consented to orders that the notice of breach was of no force or effect, the respondents' reliance on the notice was weak, the respondents failed to comply with Tribunal directions and did not provide timely explanations, and their defence and non-compliance prolonged the proceedings.

Court Disposition

Costs awarded to the applicant.

Orders

  • ["The respondents pay the applicant's costs of this proceeding, such costs, in default of agreement, to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004."]