Weraberto Pty Ltd v Vicinity Bankstown Pty Ltd [2022] NSWCATCD 155

Weraberto Pty Ltd v Vicinity Bankstown Pty Ltd [2022] NSWCATCD 155

The amount in dispute exceeded $30,000 so rule 38 applied and costs should follow the event. The respondents were entitled to costs because the applicant commenced the substantive lease proceedings, failed to comply with directions, failed to explain or prosecute its case, did not appear at the final hearing, and the application was dismissed. Indemnity costs were refused because lack of prosecution and non-compliance did not warrant that basis. A personal costs order against the director was refused because the director was not a party and had not been heard. A gross sum order was refused because the respondents did not address the required criteria or provide evidence supporting the sum...

Jurisdiction
Australia
Judgment Date
12 August 2022
Procedural Posture
Costs Application in Substantive Lease Proceedings / After Application Dismissed for Non Appearance and Want of Prosecution
Outcome
The applicant was ordered to pay the respondents' costs on the ordinary basis, as agreed or assessed; indemnity costs, a personal costs order against the director, and a gross sum costs order were refused.
Legal Topics
['costs Following the Event' 'want of Prosecution' 'indemnity Costs' 'gross Sum Costs Order' 'personal Costs Order Against Non Party Director' 'dispensing With a Hearing']
['civil Procedure' 'costs' 'retail Lease Proceedings'] ['costs Following the Event' 'want of Prosecution' 'indemnity Costs' 'gross Sum Costs Order' 'personal Costs Order Against Non Party Director' 'dispensing With a Hearing']

Case Brief

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Procedural Posture

Costs Application in Substantive Lease Proceedings / After Application Dismissed for Non Appearance and Want of Prosecution

Legal Issues

  1. 1 ['Should the Tribunal dispense with a hearing on the question of costs?' 'Does s.60 of the NCAT Act or rule 38 of the NCAT Rules apply?' 'Are the respondents entitled to a cost order in their favour?' 'Should the cost order be on the ordinary or indemnity basis?' "Should the applicant's director personally pay any cost order?" 'Should the cost order be a gross sum cost order?']

Ratio Decidendi

The amount in dispute exceeded $30,000 so rule 38 applied and costs should follow the event. The respondents were entitled to costs because the applicant commenced the substantive lease proceedings, failed to comply with directions, failed to explain or prosecute its case, did not appear at the final hearing, and the application was dismissed. Indemnity costs were refused because lack of prosecution and non-compliance did not warrant that basis. A personal costs order against the director was refused because the director was not a party and had not been heard. A gross sum order was refused because the respondents did not address the required criteria or provide evidence supporting the sum...

Court Disposition

The applicant was ordered to pay the respondents' costs on the ordinary basis, as agreed or assessed; indemnity costs, a personal costs order against the director, and a gross sum costs order were refused.

Orders

  • ['The Tribunal makes an order dispensing with a hearing on costs.' "The applicant must pay the respondents' costs, on the ordinary basis, as agreed or assessed."]