Chronopoulos v Carossel (No 2) Pty Limited

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Chronopoulos v. Carossel (No 2) Pty Limited  [2010] NSWADT 236

DIVISION:
RETAIL LEASES DIVISION

PARTIES:
APPLICANT
John Chronopoulos

RESPONDENT
Carossel Pty Limited

FILE NUMBERS:
095177

HEARING DATES:
On the papers

SUBMISSIONS CLOSED:
25 August 2010

DATE OF DECISION:
6 October 2010

BEFORE:
Molloy G - Judicial Member

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

CASES CITED:
Chronopoulos v. Carossel Pty Limited [2010] NSWADT 191
Jewell Bay Pty Limited v. DPT Operator Pty Limited (No 2) [2010] NSWADT 204
Salon Today Pty Limited v. MMIR Pty Limited [2009] NSWADT 71

TEXTS CITED:

APPLICATION:
Costs

MATTER FOR DECISION:

REPRESENTATION:
APPLICANT
John Chronopoulos
RESPONDENT
Carossel Pty Limited

ORDERS:
The Applicant  pay 75% of the costs of the Respondent and incidental to these proceedings on the ordinary basis as assessed or as agreed.

Reasons for Decision:

REASONS FOR DECISION

1. In Chronopoulos v. Carossel Pty Limited [2010] NSWADT 191 I determined that the claim by the Applicant in or to the effect that the Respondent was estopped by convention from claiming that the Applicant had no right or title or entitlement to occupy a part of the shopping centre described as the “Loading Dock area” should be dismissed.

1. I also vacated certain interim consent orders and then I made the following order:

   “No order as to costs; save that should either party file and serve an Application for costs coupled by appropriate submissions, within 14 days, then the other party is to file and serve its reply within a further 14 days; and the Tribunal will make a decision on the papers as permitted by the Administrative Decisions Tribunal Act 1997, s.76, unless persuaded that there should be oral submissions”.

This is now a fairly usual type of order that is made in this Division of this Tribunal, save that occasionally there are variations to the time limits. 

1. This type of order is based upon Administrative Decisions Tribunal Act, 1997 (“the ADT Act”), s.88, which starts off with the words “Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section”. In other words, and it is now plain from many decisions of this Tribunal, that the starting point is that there will be no order for costs unless the Tribunal is satisfied that there should be a costs order having regard to the various matters referred to in s.88(1A); such that it is for the party seeking a costs order in their favour to displace the usual rule that each party bears its own costs.

1. S.88 is relevantly in the following terms:

“88 Costs

(1)          Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.

(1A)       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 it…