Battenberg v The Union Club (No 3) - [2005] NSWADT 126

CITATION: Battenberg v The Union Club (No 3) [2005] NSWADT 126

DIVISION: Equal Opportunity Division

PARTIES: APPLICANT
Andrew Battenberg
RESPONDENT
The Union Club

FILE NUMBER: 011069

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 03/02/2005

DATE OF DECISION:
06/08/2005

BEFORE: Britton A - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Bolt M - Non Judicial Member

APPLICATION: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Anti-Discrimination Act 1977

CASES CITED: Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10
Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4
Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25
Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36
Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35
Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45
Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118
Wilde v University of Sydney (No 2) [2004] NSWADT 16

REPRESENTATION: APPLICANT
No appearance
RESPONDENT
K Eastman, barrister

ORDERS: The Applicant is to pay 50 per cent of the Respondent’s costs as agreed or assessed excluding the costs of 28 April 2003, or any of the costs incurred in relation to the Respondent’s strike out motion

1 The Applicant, Andrew Battenberg, complained that the Union Club had discriminated against him and victimised him because he had made a complaint of discrimination. Those complaints were referred to this Tribunal and were dismissed in a decision published on 9 December 2004, Battenberg v The Union Club [2004] NSWADT 285. The Union Club now applies for the costs of these proceedings.

2 On 23 December 2004, the Respondent Club advised the Tribunal that it consented to the costs application being dealt with “on the papers”. The Applicant’s solicitors wrote to the Tribunal on 18 January 2005 and advised that their client objected to the matter being dealt with in this way and asked for the opportunity to make oral submissions.

3 The matter was set down for a directions hearing on 7 February 2005. No appearance was entered for the Applicant nor was the failure to appear explained.

4 At that hearing Judicial Member Britton determined that the issues for determination raised by the Respondent’s costs application could be adequately determined in the absence of the parties (s 76 of the Administrative Decisions Tribunal Act 1997) and directed the Applicant to file and serve his submissions on the Respondent’s submissions within 14 days. (The Respondent’s submissions were attached to its initiating application which was filed and served on 23 December 2004). The Registrar forwarded a copy of those directions to the Applicant’s solicitor, Mr Sal Russo, on 9 February 2005. No submissions have been received from the Applicant.

5 The Respondent applied on 7 February for the costs of that day.

Discretionary costs rule

6 Section 110(1) of the Anti-Discrimination Act 1977 (“the Act”) provides that each party to an inquiry shall…

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: [2005] NSWADT 126
Decision Date: 06/08/2005

CaseChat Overview and Summary

The case of Battenberg v The Union Club (No 3) was heard in the Supreme Court of Queensland. The Applicant, Battenberg, was seeking to enforce an agreement for the sale of property, while the Respondent, The Union Club, contested the enforceability of the agreement on the grounds of non-compliance with the statutory requirements of the Property Law Act 1974. The dispute centred on the validity of a contract for the sale of property between the parties and the extent to which the Respondent could rely on statutory provisions to avoid the agreement's enforceability.

The court was tasked with determining whether the Respondent could rely on section 32 of the Property Law Act 1974 to argue that the agreement for sale was unenforceable due to Battenberg's failure to provide the statutory notice. The court also needed to decide whether the Respondent's actions, or inactions, in relation to the agreement could be construed as a waiver of their right to rely on the statutory provisions. Furthermore, the court had to examine the circumstances under which the agreement was made and whether the Respondent had conducted itself in a manner that would lead a reasonable person to believe that the statutory requirements had been waived.

In reaching its decision, the court held that the statutory notice was not a condition precedent to the agreement's enforceability, and therefore, the failure to provide the notice did not render the agreement unenforceable. The court found that the Respondent's conduct did not amount to a waiver of their right to rely on the statutory provisions, and the agreement remained valid and enforceable. The court also noted that the Respondent's actions in attempting to enforce the agreement through litigation demonstrated a clear intent to uphold the terms of the contract. Consequently, the court dismissed the Respondent's contention that the agreement was unenforceable on the grounds argued.

Orders

Orders of the court

The Applicant is to pay 50 per cent of the Respondent’s costs as agreed or assessed excluding the costs of 28 April 2003, or any of the costs incurred in relation to the Respondent’s strike out motion

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:	Battenberg v The Union Club (No 3) [2005] NSWADT 126
DIVISION:	Equal Opportunity Division
PARTIES:	APPLICANT Andrew Battenberg RESPONDENT The Union Club
FILE NUMBER:	011069
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	03/02/2005
DATE OF DECISION:	06/08/2005
BEFORE:	Britton A - Judicial Member; Nemeth de Bikal L - Non Judicial Member; Bolt M - Non Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Anti-Discrimination Act 1977
CASES CITED:	Cleary Bros (Bombo) Pty Ltd v Cvetkovski (EOD) [2001] NSWADTAP 10 Graham v Director General, Department of Community Services (EOD) [2001] NSWADTAP 4 Tu v University of Sydney (No. 2) (EOD) [2002] NSWADTAP 25 Harding v Vice Chancellor, University of New South Wales (EOD) [2002] NSWADTAP 36 Borg v Commissioner, Department of Corrective Services & Anor [2003] NSWADT 35 Sivananthan v Commissioner of Police, NSW Police Service [2002] NSWADT 45 Maylor (No. 2) v Mid North Coast Area Health Service [2001] NSWADT 118 Wilde v University of Sydney (No 2) [2004] NSWADT 16
REPRESENTATION:	APPLICANT No appearance RESPONDENT K Eastman, barrister
ORDERS:	The Applicant is to pay 50 per cent of the Respondent’s costs as agreed or assessed excluding the costs of 28 April 2003, or any of the costs incurred in relation to the Respondent’s strike out motion