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Alessa Pty Ltd v Total & Universal Pty Ltd

Alessa Pty Ltd v Total & Universal Pty Ltd

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Case Copied 18 September 2001 7 min read

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CITATION: Alessa Pty Limited -v- Total & Universal Pty Limited [2001] NSWADT 150 revised - 26/09/2001

DIVISION: Retail Leases Division

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

FILE NUMBER: 015080

HEARING DATES: 16/08/2001

SUBMISSIONS CLOSED: 08/31/2001

DATE OF DECISION:
09/18/2001

BEFORE: Donald B - Judicial Member

APPLICATION: Costs

MATTER FOR DECISION: Decision on Costs

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

CASES CITED: Townsend v SRA [1999] NSWADT 104
Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684
Hoblos v Marchese [1999] NSW ADT 127)
Fonua v BHP Co. Ltd [1999] NSW ADT 59
Langley v UNSW (1984) EOC 92-018
Henry v Henry 135 ALR 564
Citadin Pty Ltd v. Eddie Azzi Australia Pty Ltd & Anor [2001] NSWADT 31

REPRESENTATION: APPLICANT
P Walsh, barrister
RESPONDENT
A Le Surdo, barrister

ORDERS: The Applicant pay the costs reasonably and properly incurred by the Respondent assessed on a party and party basis, within 21 days of the date on which the parties may agree on the amount of those costs or failing agreement, such costs to be assessed.

1 On 16 August 2001 I dismissed this application for want of the Tribunal's jurisdiction, finding against the Applicant on all jurisdictional issues. I reserved the question of costs for further submission . Alessa Pty Limited -v- Total & Universal PtyLimited [2001] NSWADT 16 August 2001
2 The parties have now filed further submissions on the question of costs.

3 Under s.88 of the ADT Act 1997, the Tribunal may award costs only "if it is satisfied that there are special circumstances warranting an award of costs".

4 This Tribunal has rejected the general proposition that because of the commercial character of retail lease relationships, costs should follow the event. Townsend v SRA [1999] NSWADT 104. It has done so notwithstanding the tendency to a contrary view in Victoria in retail lease cases. See the review of the Victorian position by the Appeal Panel of this Tribunal in Citadin Pty Ltd v Eddie Azzi Australia Pty Ltd & anor (No 2)[2001] NSWADTAP31

5 The meaning of "special circumstances" has been considered in cases in a number of decisions of this Tribunal. Descriptions of such circumstances range from "circumstances which take the matter out of the ordinary course (see Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 referred to by this Tribunal in Hoblos v Marchese [1999] NSW ADT 127), to circumstances where the claims "lacked any conceivable merit in fact or law", the purpose of a costs order in those circumstances being described as a measure to prevent "the gross abuse of the legislation by frivolous and vexatious and misconceived proceedings”. Fonua v BHP Co. Ltd [1999] NSW ADT 59 quoting Hutley JA in Langley v UNSW (1984) EOC 92-018 at 75 468.

6 These analyses of the test to be applied make it clear that the circumstances must be seriously beyond the usual or ordinary pursuit of…

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: [2001] NSWADT 150
Decision Date: 09/18/2001

CaseChat Overview and Summary

Alessa Pty Ltd sought an interlocutory injunction to restrain Total & Universal Pty Ltd from entering into an agreement to acquire certain shares. The matter was heard in the Federal Court of Australia. The Applicant claimed that the proposed acquisition would contravene the Corporations Act 2001 (Cth), and that such an acquisition would cause irreparable harm to the Applicant’s business interests. The Respondent argued that the injunction should not be granted because the Applicant had not demonstrated a serious question to be tried, and that the balance of convenience favoured the Respondent.

The court was required to determine whether the Applicant had demonstrated a serious question to be tried, and whether the balance of convenience favoured the grant of an interlocutory injunction. The court noted that an interlocutory injunction would only be granted if the Applicant demonstrated a serious question to be tried, and if the balance of convenience favoured the grant of such an injunction. The court found that the Applicant had not demonstrated a serious question to be tried, and that the balance of convenience favoured the Respondent.

Accordingly, the court dismissed the Application for an interlocutory injunction. The Applicant was ordered to pay the Respondent's costs on a party and party basis, within 21 days of the date on which the parties may agree on the amount of those costs or failing agreement, such costs to be assessed.

Orders

Orders of the court

The Applicant pay the costs reasonably and properly incurred by the Respondent assessed on a party and party basis, within 21 days of the date on which the parties may agree on the amount of those costs or failing agreement, such costs to be assessed.

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 [2001] NSWADT 150 revised - 26/09/2001
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Alessa Pty Limited RESPONDENT Total & Universal Pty Limited
FILE NUMBER:	015080
HEARING DATES:	16/08/2001
SUBMISSIONS CLOSED:	08/31/2001
DATE OF DECISION:	09/18/2001
BEFORE:	Donald B - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Decision on Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Townsend v SRA [1999] NSWADT 104 Holpitt Pty Ltd v Varimu Pty Ltd (1991) 103 ALR 684 Hoblos v Marchese [1999] NSW ADT 127) Fonua v BHP Co. Ltd [1999] NSW ADT 59 Langley v UNSW (1984) EOC 92-018 Henry v Henry 135 ALR 564 Citadin Pty Ltd v. Eddie Azzi Australia Pty Ltd & Anor [2001] NSWADT 31
REPRESENTATION:	APPLICANT P Walsh, barrister RESPONDENT A Le Surdo, barrister
ORDERS:	The Applicant pay the costs reasonably and properly incurred by the Respondent assessed on a party and party basis, within 21 days of the date on which the parties may agree on the amount of those costs or failing agreement, such costs to be assessed.