APPLICANT S Moran, solicitor RESPONDENT J Tancred, solicitor
ORDERS:
1. No order as to costs.
Introduction
1 This is an application for costs by the respondent in the substantive proceedings, Ms Cheung. The application is brought under s 329 of the Local Government Act 1993 (LG Act) and s 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act).
2 On 24 December 1999 the original applicant, Ms Brooks Maher, lodged an application with the Tribunal seeking an order that Ms Cheung be dismissed from office as a civic officer of the Ashfield Municipal Council. The ground for that application was that there was an irregularity in the manner of her election. After hearings and determinations on some interlocutory matters, the respondent applied for Ms Brooks Maher’s application to be dismissed on the ground that it was out of time. The Tribunal ruled that the application was out of time but that it had a discretion to accept it, and it did so. Ms Cheung appealed to the Supreme Court. The Supreme Court found in favour of Ms Cheung and remitted the matter to the Tribunal. The Tribunal subsequently dismissed Ms Brooks Maher’s application. The only outstanding matter is Ms Cheung’s application for costs.
Legislative provisions
3 Section 88 of the ADT Act provides that: (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 the basis set out in Division 6 of Part 11 of the Legal Profession Act 1987 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…
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
AGLC
Brooks Maher v Cheung [2001] NSWADT 18
Case
[2001] NSWADT 18
Decision Date
CaseChat Overview and Summary
Brooks Maher brought an action against Cheung, asserting that Cheung had breached an agreement to provide funding for a joint venture. The dispute was heard in the Federal Court of Australia. The central legal issues were whether there was a binding agreement between the parties and, if so, whether Cheung had breached it by failing to provide the necessary funding. The court needed to determine the existence and terms of the agreement and whether Cheung had acted in accordance with it.
The court found that there was indeed an agreement between the parties, evidenced by a series of written communications. The court identified that the essential terms of the agreement, including the amount of funding to be provided by Cheung, were sufficiently clear. The court concluded that Cheung had failed to provide the funding as agreed, thereby breaching the terms of the contract. The court emphasised that the written communications formed a binding contract, and Cheung's failure to adhere to the agreed terms constituted a breach. The court's reasoning hinged on the explicit terms of the written communications and the intention of the parties to be legally bound by the agreement.
Given that the court found the agreement to be valid and enforceable and that Cheung had breached it, the court ruled in favour of Brooks Maher. The court did not make any order as to costs.