Ull Pty Ltd v Adwell Holdings Pty Ltd (No 2) [2010] NSWADTAP 49

Ull Pty Ltd v Adwell Holdings Pty Ltd (No 2) [2010] NSWADTAP 49

It was fair to order Ull Pty Ltd to pay Adwell Holdings Pty Ltd's costs because Ull's out-of-time and defective appeal process, delays, failure to serve the amended notice, and conduct causing unnecessary attendances disadvantaged Adwell and unreasonably prolonged the proceedings; the appeal had very little merit; and the proceedings were commercial retail leases appeal proceedings in which weak appeals should be discouraged.

Jurisdiction
Australia
Judgment Date
01 July 2010
Procedural Posture
Costs Application in Retail Leases Act Appeal Proceedings / On the Papers After Dismissal of an Out of Time Application for Leave to Proceed With an Appeal
Outcome
Application for costs granted; appellant ordered to pay respondent's costs of the appeal proceedings.
Legal Topics
['costs of Appeal' 'unsuccessful Application for Leave to Proceed' 'notice of Appeal Lodged Out of Time' 'fairness Criterion for Costs in Tribunal Proceedings']
['administrative Law' 'retail Leases' 'costs'] ['costs of Appeal' 'unsuccessful Application for Leave to Proceed' 'notice of Appeal Lodged Out of Time' 'fairness Criterion for Costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Costs Application in Retail Leases Act Appeal Proceedings / On the Papers After Dismissal of an Out of Time Application for Leave to Proceed With an Appeal

Legal Issues

  1. 1 ["Whether it was fair under section 88 of the Administrative Decisions Tribunal Act 1997 to order Ull Pty Ltd to pay Adwell Holdings Pty Ltd's costs of the appeal proceedings." 'Whether Ull Pty Ltd conducted the appeal proceedings in a way that unnecessarily disadvantaged Adwell Holdings Pty Ltd or unreasonably prolonged the proceedings.' 'Whether the weak merits and commercial retail leases nature of the appeal proceedings supported an adverse costs order.']

Ratio Decidendi

It was fair to order Ull Pty Ltd to pay Adwell Holdings Pty Ltd's costs because Ull's out-of-time and defective appeal process, delays, failure to serve the amended notice, and conduct causing unnecessary attendances disadvantaged Adwell and unreasonably prolonged the proceedings; the appeal had very little merit; and the proceedings were commercial retail leases appeal proceedings in which weak appeals should be discouraged.

Court Disposition

Application for costs granted; appellant ordered to pay respondent's costs of the appeal proceedings.

Orders

  • ["The Appellant is to pay the Respondent's costs of and incidental to these appeal proceedings, as agreed or assessed." "These costs are to include the Respondent's costs of and incidental to its attendances at the Tribunal on 15 December 2009 and 18 January 2010 and its costs of this application for costs."]