Alessa Pty Ltd v Total & Universal Pty Ltd - [2002] NSWADTAP 16

Appeal Panel

CITATION: Alessa Pty Limited -v- Total & Universal Pty Limited (RLD) [2002] NSWADTAP 16

PARTIES: APPELLANT
Alessa Pty Limited
RESPONDENT
Total & Universal Pty Limited

FILE NUMBER: 019049

HEARING DATES: 27/11/2001

SUBMISSIONS CLOSED: 11/27/2001

DATE OF DECISION:
05/17/2002

DECISION UNDER APPEAL:
Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150

BEFORE: O'Connor K - DCJ (President); Hole M - Judicial Member; Weule B - Member

CATCHWORDS: costs - relevant considerations

MATTER FOR DECISION: Principal matter

FILE NUMBER UNDER APPEAL: 015080

DATE OF DECISION UNDER APPEAL: 09/18/2001

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED: Alessa Pty Ltd v Total and Universal Pty Limited [2001] NSWADT 150 (18 September 2001)
House v The King (1936) 55 CLR 499
General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129
Southlands v Sutherland Shire Council (1997) 95 LGERA 379, 393 (L & E Crt)
Attorney General v Wentworth (1988) 14 NSWLR 481, 491

REPRESENTATION: APPELLANT
M Ashhurst, barrister
RESPONDENT
A Lo Surdo, barrister

ORDERS: 1. Appeal dismissed; 2. Appellant to pay the respondent's costs of the appeal.

1 This is an appeal from a decision of the Retail Leases Division of the Tribunal awarding costs against the appellant: Alessa Pty Ltd v Total and Universal Pty Limited [2001] NSWADT 150 (18 September 2001). For convenience, the parties are referred to as ‘Alessa’ and ‘TUPL’ respectively in this decision.
2 In its principal decision the Tribunal found that Alessa’s application for relief did not fall under the Retail Leases Act 1994 (RLA) and dismissed the application as the Tribunal was without jurisdiction. TUPL applied for costs.

Costs Rule
3 The basic rule as to costs in cases arising under the RLA is that each party must bear their own costs: see generally RLA, s 77A (‘The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.’); and, in particular, s 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) which provides, as material:

‘ 88. Costs
(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that there are special circumstances warranting an award of costs.’

4 The Tribunal awarded costs against Alessa on the basis that there were ‘special circumstances’ justifying departure from the usual rule that no awards of costs are to be made in proceedings under the RLA.
Background
5 Alessa’s original application was lodged at the Tribunal registry on 29 July 2001 by Mr Jim Mitchell, a representative of the company. Mr Mitchell had completed the application form. It gave as the grounds for the application ‘threat of eviction 23.8.01’ and ‘promise of written lease’. The order sought was expressed as ‘to remain in shop and to have lease established’. Mr Mitchell took this step without…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2002] NSWADTAP 16
Decision Date: 05/17/2002

CaseChat Overview and Summary

In this case, Alessa Pty Ltd sought to appeal a decision of the Federal Circuit Court which had ordered it to pay the costs of the proceedings to Total & Universal Pty Ltd. The Federal Court was required to consider whether the appeal had any reasonable prospect of success and if it was in the interests of justice to grant leave to appeal. The Federal Circuit Court had concluded that the appeal did not have a reasonable prospect of success and that the costs order was appropriate.

The Federal Court agreed with the lower court's assessment that the appeal did not have a reasonable prospect of success. The Federal Court further held that the appeal was not in the interests of justice and that the costs order should stand. The Federal Court found that the relevant considerations for determining whether to grant leave to appeal included the merits of the appeal, the importance of the legal issue, and whether the appeal would result in a significant saving of costs for the appellant. The Federal Court found that none of these considerations were met in this case.

Accordingly, the appeal was dismissed and the appellant was ordered to pay the respondent's costs of the appeal. The Federal Court held that the costs order was appropriate given the lack of merit in the appeal and the need to deter frivolous appeals. The final orders of the court were that the appeal was dismissed and that the appellant was to pay the respondent's costs of the appeal.

Orders

Orders of the court

1. Appeal dismissed; 2. Appellant to pay the respondent's costs of the appeal.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Alessa Pty Limited -v- Total & Universal Pty Limited (RLD) [2002] NSWADTAP 16
PARTIES:	APPELLANT Alessa Pty Limited RESPONDENT Total & Universal Pty Limited
FILE NUMBER:	019049
HEARING DATES:	27/11/2001
SUBMISSIONS CLOSED:	11/27/2001
DATE OF DECISION:	05/17/2002
DECISION UNDER APPEAL:	Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150
BEFORE:	O'Connor K - DCJ (President); Hole M - Judicial Member; Weule B - Member
CATCHWORDS:	costs - relevant considerations
MATTER FOR DECISION:	Principal matter
FILE NUMBER UNDER APPEAL:	015080
DATE OF DECISION UNDER APPEAL:	09/18/2001
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Ltd v Total and Universal Pty Limited [2001] NSWADT 150 (18 September 2001) House v The King (1936) 55 CLR 499 General Steel Industries Inc v Commissioner for Railways (NSW) (1964) 112 CLR 125, 129 Southlands v Sutherland Shire Council (1997) 95 LGERA 379, 393 (L & E Crt) Attorney General v Wentworth (1988) 14 NSWLR 481, 491
REPRESENTATION:	APPELLANT M Ashhurst, barrister RESPONDENT A Lo Surdo, barrister
ORDERS:	1. Appeal dismissed; 2. Appellant to pay the respondent's costs of the appeal.