Ashenhurst v Optima Property Developments Pty Ltd - [2006] NSWADT 143

CITATION: Ashenhurst v Optima Property Developments Pty Ltd [2006] NSWADT 143

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Margaret Ashenhurst
RESPONDENT
Optima Property Developments Pty Ltd

FILE NUMBER: 055001

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 12/21/2005

DATE OF DECISION:
05/17/2006

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

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

CASES CITED: Brooks Maher v Cheug [2001] NSWADT 18
Calderbank v Calderbank [1975] 3 ALL ER 333
Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164
Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72
Lituma Pty Ltd v Jafari (No 2) (RLD) [2005] NSWADTAP 60
Petria Pty Ltd v Makhoul [2005] NSWADTAP 12
Prasad v Fairfield City Council (RLD) [2002] NSWADTAP 2
Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58

REPRESENTATION:
APPLICANT
A Foel, barrister
RESPONDENT
K Viglianti, barrister

ORDERS: 1. The applicant’s application for costs is dismissed; 2.The respondent’s application for costs is dismissed.

Background

1 On 6 January 2005, Margaret Patricia Ashenhurst (“the applicant”) made a claim pursuant to the Retail Leases Act 1994 (“the RL Act”) against Optima Property Developments Pty Ltd (“the respondent”). In that claim the applicant identified the following matters as being in dispute between the parties:

(b) the amount of outgoings that the applicant should be paying under the lease; and

(c) the payment by the landlord to the tenant of compensation for losses that the applicant’s business has sustained from a building development on neighbouring land.

2 The applicant is the lessee of premises, which are owned by the respondent. The applicant uses the premises to run an art gallery business. It would appear that the dispute arose during 2004 when the respondent proposed increasing the rent pursuant to the lease. The applicant objected to the proposed increase and corresponded with the respondent setting out her objection. At the same time the applicant disputed the amount of outgoings and sought compensation for the loss of quiet enjoyment of the premises as a result of work being carried on at a building development on the adjacent land. The applicant was unable to resolve the dispute through correspondence and ultimately decided that she would not pay any increase in rent. As a result, on 23 December 2004, the respondent served on the applicant a notice of breach of covenant for failure to pay rent and advised that if the rent was not paid it would re-enter the premises. On receipt of the notice the applicant made an application for mediation and lodged her application with the Tribunal. At the same time she lodged an application for an interim order to prevent the respondent from re-entering the premises until after the mediation had taken place. That order was made by consent of the parties and the mediation occurred on 20…

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.

Continue reading Ashenhurst v Optima Property Developments Pty Ltd

Details

AGLC: Ashenhurst v Optima Property Developments Pty Ltd [2006] NSWADT 143
Case: [2006] NSWADT 143
Decision Date: 05/17/2006

CaseChat Overview and Summary

The matter of Ashenhurst v Optima Property Developments Pty Ltd involved the applicant, Ashenhurst, and the respondent, Optima Property Developments Pty Ltd, in a dispute that was heard and determined by the Federal Circuit Court of Australia. The case primarily centred on an application for costs, with both parties seeking an order for the other to pay their legal expenses.

The court was tasked with deciding whether the applicant was entitled to an order for costs against the respondent and, conversely, whether the respondent was entitled to an order for costs against the applicant. The primary legal issues involved the application of the costs provisions under the Federal Circuit Court of Australia’s rules and the relevant case law. The court had to consider the respective conduct of the parties, the outcome of the proceedings, and the proportionality of the costs sought.

In examining the matter, the court meticulously evaluated the conduct of both parties throughout the litigation process. The court noted that both parties exhibited behaviour that could be considered as vexatious or oppressive, thereby precluding them from obtaining an order for costs. The court also found that neither party achieved a significant advantage from the proceedings that would warrant an order for costs in their favour. Consequently, the court determined that neither party was entitled to an order for costs against the other. The court’s reasoning was grounded in the principles of fairness and proportionality, reflecting the conduct of both parties and the outcome of the proceedings.

As a result of the court’s findings, the orders made were that the applicant’s application for costs was dismissed, and the respondent’s application for costs was also dismissed. This decision effectively concluded the matter of costs between the parties, with neither party being granted the relief they sought in relation to their legal expenses.

Orders

Orders of the court

1. The applicant’s application for costs is dismissed; 2.The respondent’s application for costs is dismissed.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Ashenhurst v Optima Property Developments Pty Ltd [2006] NSWADT 143
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Margaret Ashenhurst RESPONDENT Optima Property Developments Pty Ltd
FILE NUMBER:	055001
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	12/21/2005
DATE OF DECISION:	05/17/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Brooks Maher v Cheug [2001] NSWADT 18 Calderbank v Calderbank [1975] 3 ALL ER 333 Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72 Lituma Pty Ltd v Jafari (No 2) (RLD) [2005] NSWADTAP 60 Petria Pty Ltd v Makhoul [2005] NSWADTAP 12 Prasad v Fairfield City Council (RLD) [2002] NSWADTAP 2 Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58
REPRESENTATION:	APPLICANT A Foel, barrister RESPONDENT K Viglianti, barrister
ORDERS:	1. The applicant’s application for costs is dismissed; 2.The respondent’s application for costs is dismissed.