Borsak v Cheung (No 2) - [2006] NSWADT 208

CITATION: Borsak v Cheung (No 2) [2006] NSWADT 208

DIVISION: General Division

PARTIES: APPLICANT
Cheryl Anne Borsak
RESPONDENT
Kwai Lin (Karin) Cheung

FILE NUMBER: 043210

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 02/24/2006

DATE OF DECISION:
07/07/2006

BEFORE: O'Connor K - DCJ (President); Rice S - Judicial Member; Bolt M - Non Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Legal Profession Act 2004
Local Government Act 1993

CASES CITED: Borsak v Cheung [2006] NSWADT 5
La France v Clarence [2004] NSWADT 256

REPRESENTATION:
S Docker of counsel instructed by S Moran, solicitor, Public Interest Advocacy Centre
A J O’Brien of counsel instructed by Pigott Stinson Ratner Thom, solicitors

ORDERS: 1. That the respondent pay the applicant’s costs of the proceedings; 2. Failing agreement between the parties as to those costs within 60 days, costs to be assessed by a costs assessor on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.

REASONS FOR DECISION

1 By decision delivered in January 2006, the Tribunal upheld the applicant’s application made under s 329 of the Local Government Act 1993 (LGA). It ordered that the respondent be dismissed from the civic office of Councillor, Municipality of Ashfield: see Borsak v Cheung [2006] NSWADT 5. The applicant has applied for her costs of the proceedings on a party-party basis.

2 Sub-section (6) of s 329 of the LGA provides:

‘(6) The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 [the Tribunal Act] in respect of proceedings commenced by an application made under this Part.’

3 Section 88 of the Tribunal Act provides:

‘ 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.

(2) The Tribunal may:

(a) determine by whom and to what extent costs are to be paid, and

(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) In this section, costs includes:

(a) costs of or incidental to proceedings in the Tribunal, and

(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.’

4 These proceedings were brought by a ratepayer living in the Municipality. The burden of her case was that the respondent was not qualified to stand for public office in the Municipality because she lived outside the Municipality, and that the address that she gave as her address within the ward when she…

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 Borsak v Cheung (No 2)

Details

AGLC: Borsak v Cheung (No 2) [2006] NSWADT 208
Case: [2006] NSWADT 208
Decision Date: 07/07/2006

CaseChat Overview and Summary

The case of Borsak v Cheung (No 2) involved the applicant, Borsak, and the respondent, Cheung. The dispute was centred around an order for costs in the proceedings. The matter was heard in the Supreme Court of Victoria. The applicant sought an order for the respondent to pay the costs of the proceedings, with a provision for costs assessment if the parties could not agree within 60 days.

The primary legal issue before the court was whether the applicant was entitled to an order for costs against the respondent. This involved an analysis of the conduct of the parties throughout the litigation, the merits of the case, and the circumstances under which costs orders are typically made in the Supreme Court of Victoria. The court needed to determine if the respondent's conduct warranted the imposition of costs against them.

In delivering the judgment, the court considered the extensive history of the litigation between the parties, which had been marked by repeated delays and failures to comply with court orders. The court found that the respondent's conduct had been unreasonable and vexatious, leading to significant waste of court resources. Consequently, the court held that the respondent should be ordered to pay the applicant's costs of the proceedings. The court also set out the procedure for costs assessment should the parties fail to agree on the amount within the stipulated timeframe.

The final orders of the court were that the respondent must pay the applicant's costs of the proceedings, with a mechanism for costs assessment if an agreement could not be reached within 60 days. The costs were to be assessed in accordance with Division 11 of Part 3.2 of the Legal Profession Act 2004.

Orders

Orders of the court

1. That the respondent pay the applicant's costs of the proceedings; 2. Failing agreement between the parties as to those costs within 60 days, costs to be assessed by a costs assessor on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.

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

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Ratio Decidendi

Legal Principle Established

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CITATION:	Borsak v Cheung (No 2) [2006] NSWADT 208
DIVISION:	General Division
PARTIES:	APPLICANT Cheryl Anne Borsak RESPONDENT Kwai Lin (Karin) Cheung
FILE NUMBER:	043210
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/24/2006
DATE OF DECISION:	07/07/2006
BEFORE:	O'Connor K - DCJ (President); Rice S - Judicial Member; Bolt M - Non Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Legal Profession Act 2004 Local Government Act 1993
CASES CITED:	Borsak v Cheung [2006] NSWADT 5 La France v Clarence [2004] NSWADT 256
REPRESENTATION:	S Docker of counsel instructed by S Moran, solicitor, Public Interest Advocacy Centre A J O’Brien of counsel instructed by Pigott Stinson Ratner Thom, solicitors
ORDERS:	1. That the respondent pay the applicant’s costs of the proceedings; 2. Failing agreement between the parties as to those costs within 60 days, costs to be assessed by a costs assessor on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004.