Curcio v AMP Warringah Mall Pty Ltd - [2013] NSWADT 247

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Curcio v AMP Warringah Mall Pty Ltd [2013] NSWADT 247
Hearing dates: 21 October 2013
Decision date: 04 November 2013
Jurisdiction: Retail Leases Division
Before: M Chesterman, Deputy President
Decision:
1. These proceedings are to be transferred to the Supreme Court under section 76A of the Retail Leases Act 1994.
2. The Applicant is to pay the Respondents' costs thrown away by virtue of his having commenced these proceedings in the Tribunal but subsequently sought and obtained an order transferring them to the Supreme Court.
3. The directions set out in Order 4 relate to the following questions: (a) whether these costs should be assessed on a party-party basis or as indemnity costs; (b) whether it is appropriate for the Tribunal to determine the amount to be paid; and (c) if so, what amount is to be paid.
4. The Respondents are to file and serve their evidence (if any) and submissions relating to these questions within fourteen days of the date of this decision. The Applicant is to file and serve his evidence (if any) and submissions in reply within a further fourteen days. These questions will then be decided 'on the papers' under section 76 of the Administrative Decisions Tribunal Act 1997 unless the Tribunal considers that a further hearing is required.

Catchwords: Retail lease - application for transfer of proceedings to Supreme Court - application for dismissal on grounds of want of prosecution - costs
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Cases Cited: Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Category: Interlocutory applications
Parties: Fabio Curcio (Applicant)
AMP Warringah Mall Pty Ltd (First Respondent)
Westfield Management Ltd (Second Respondent)
Representation: Counsel
R Newell (Applicant)
G Connolly (Respondents)
L C Muriniti & Associates (Applicant)
Gadens Lawyers (Respondents)

File Number(s): 125173

reasons for decision

Introduction

This decision deals with three matters arising in proceedings instituted under the Retail Leases Act 1994 ('the RL Act'): whether the proceedings should be transferred to the Supreme Court under section 76A of the RL Act, whether in the alternative the proceedings should be summarily dismissed and whether a costs order should be made against the Applicant.

The proceedings were instituted by the filing of an Application for Original Decision ('the Application') on 22 November 2012. In it, the Applicant, Fabio Curzio, claimed monetary relief (damages, compensation and abatement of rent) against the two Respondents, AMP Warringah Mall Pty Ltd and Westfield Management Ltd. He maintained that they had breached a number of terms of a lease ('the Lease') of retail shop premises in Brookvale ('the Shop') that they had granted to him, and that they had engaged in unconscionable conduct in connection with the Lease.

By a letter to the Registrar dated 27 September 2013, the Applicant applied for an order that the proceedings be transferred to the Supreme Court.

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: [2013] NSWADT 247
Decision Date: 04 November 2013

CaseChat Overview and Summary

The case of Curcio v AMP Warringah Mall Pty Ltd was heard by the Administrative Appeals Tribunal of New South Wales, concerning a dispute regarding a retail lease. The Applicant, Curcio, sought to transfer the proceedings from the Tribunal to the Supreme Court, as well as an application for dismissal on grounds of want of prosecution, and a request for costs. The Respondents, AMP Warringah Mall Pty Ltd, opposed the transfer and sought costs thrown away by the Applicant's actions.

The central legal issues before the Tribunal were whether the proceedings should be transferred to the Supreme Court and, if so, whether the Applicant should be required to pay the Respondents' costs as a result of initiating proceedings in the Tribunal and subsequently transferring them to the Supreme Court. Additionally, the Tribunal had to determine the appropriate method of assessing the costs, whether it should be on a party-party basis or as indemnity costs, and whether it was suitable for the Tribunal to determine the amount to be paid.

In deciding the case, the Tribunal held that the proceedings should be transferred to the Supreme Court under section 76A of the Retail Leases Act 1994. The Tribunal also found that the Applicant should pay the Respondents' costs thrown away due to the Applicant's decision to initiate proceedings in the Tribunal and subsequently transfer them to the Supreme Court. The Tribunal directed that the questions regarding the method of assessing the costs and the appropriate amount to be paid would be decided on the papers under section 76 of the Administrative Decisions Tribunal Act 1997 unless a further hearing was required. The Respondents were instructed to file and serve their evidence and submissions relating to these questions within fourteen days, with the Applicant to file and serve his evidence and submissions in reply within a further fourteen days.

The final orders of the Tribunal included the transfer of the proceedings to the Supreme Court, the requirement for the Applicant to pay the Respondents' costs thrown away, and the establishment of a timeframe for the Respondents and Applicant to file and serve their evidence and submissions relating to the method of assessing the costs and the appropriate amount to be paid.

Orders

Orders of the court

1. These proceedings are to be transferred to the Supreme Court under section 76A of the Retail Leases Act 1994.

2. The Applicant is to pay the Respondents' costs thrown away by virtue of his having commenced these proceedings in the Tribunal but subsequently sought and obtained an order transferring them to the Supreme Court.

3. The directions set out in Order 4 relate to the following questions: (a) whether these costs should be assessed on a party-party basis or as indemnity costs; (b) whether it is appropriate for the Tribunal to determine the amount to be paid; and (c) if so, what amount is to be paid.

4. The Respondents are to file and serve their evidence (if any) and submissions relating to these questions within fourteen days of the date of this decision. The Applicant is to file and serve his evidence (if any) and submissions in reply within a further fourteen days. These questions will then be decided 'on the papers' under section 76 of the Administrative Decisions Tribunal Act 1997 unless the Tribunal considers that a further hearing is required.

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.

Medium Neutral Citation:	Curcio v AMP Warringah Mall Pty Ltd [2013] NSWADT 247
Hearing dates:	21 October 2013
Decision date:	04 November 2013
Jurisdiction:	Retail Leases Division
Before:	M Chesterman, Deputy President
Decision:	1. These proceedings are to be transferred to the Supreme Court under section 76A of the Retail Leases Act 1994. 2. The Applicant is to pay the Respondents' costs thrown away by virtue of his having commenced these proceedings in the Tribunal but subsequently sought and obtained an order transferring them to the Supreme Court. 3. The directions set out in Order 4 relate to the following questions: (a) whether these costs should be assessed on a party-party basis or as indemnity costs; (b) whether it is appropriate for the Tribunal to determine the amount to be paid; and (c) if so, what amount is to be paid. 4. The Respondents are to file and serve their evidence (if any) and submissions relating to these questions within fourteen days of the date of this decision. The Applicant is to file and serve his evidence (if any) and submissions in reply within a further fourteen days. These questions will then be decided 'on the papers' under section 76 of the Administrative Decisions Tribunal Act 1997 unless the Tribunal considers that a further hearing is required.
Catchwords:	Retail lease - application for transfer of proceedings to Supreme Court - application for dismissal on grounds of want of prosecution - costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	Brashes Convenience Store Pty Ltd v Pitt & Castlereagh Pty Ltd [2013] NSWADT 118 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Category:	Interlocutory applications
Parties:	Fabio Curcio (Applicant) AMP Warringah Mall Pty Ltd (First Respondent) Westfield Management Ltd (Second Respondent)
Representation:	Counsel R Newell (Applicant) G Connolly (Respondents) L C Muriniti & Associates (Applicant) Gadens Lawyers (Respondents)
File Number(s):	125173