Dirani v Tarabay and anor (No.2) - [2008] NSWADT 94

CITATION: Dirani v Tarabay and anor (No.2) [2008] NSWADT 94

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Hussein Dirani
FIRST RESPONDENT
Elie Tarabay
SECOND RESPONDENT
Houda Tarabay

FILE NUMBER: 075024

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 3 January 2008

DATE OF DECISION:
20 March 2008

BEFORE: Fox R - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

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

CASES CITED: Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45
Rose Holdings Pty Limited v Chusap [2002] NSWADT 153
Smith t/as Flames Grill & Carvery v Trust Company of Australia Pty Limited [2008] NSWADT 10
Soloman v Singh (No.3)[2006] NSWADT 120

REPRESENTATION:
APPLICANT
B Lane, solicitor
RESPONDENTS
G Penhall, solicitor

ORDERS: No order for costs.

1 Pursuant to my order of 23 November 2007, Mr Lane has made submissions in support of an order for costs, and nothing has been heard from Mr Penhall. Mr Lane relied on clause 5 of the Deed of Assignment to claim the costs of the litigation. This clause (the full text of which appeared in my reasons on the substantive issue) contained the “usual” indemnity against costs of assignment.

2 I briefly considered a similar claim in Rose Holdings Pty Limited v Chusap [2002] NSWADT 153, when I described an argument in support of a claim for an order for costs, because a covenant in the lease made such a provision for indemnity, as Gilbertian. That matter concerned a lease, the text of which had been agreed before the operation of the Retail Leases Act 1994. It seemed to me to be the stuff of comic opera to propose that the plain effect of section 77A of the Retail Leases Act 1994 and section 88 of the Administrative Decisions Tribunal Act 1997 (which is to relieve the Applicants and Respondents from the risks of a costs order if unsuccessful unless there are special circumstances warranting an award of costs) could simply be reversed by a pre-existing contract.

3 The issue has been subsequently considered; the detail of those considerations may be found in the discussion of Deputy President Chesterman in Smith t/as Flames Grill & Carvery v Trust Company of Australia Pty Limited [2008] NSWADT 10, a decision which was published after Mr Lane made his submissions. As the Deputy President pointed out, the matter is not without its difficulties in view of the Court of Appeal decision in Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45, however, he went on to hold that the claim for a cost entitlement arising out of an indemnity clause in the Lease must fail because section 7 of the Retail Leases Act 1994 operates to void it. It is worthwhile to repeat the text of section 7 in full:

“This Act operates despite the provisions of a lease. A provision of a lease is void to the extent that the provision is inconsistent with a provision of this Act. A provision of any…

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: [2008] NSWADT 94
Decision Date: 20 March 2008

CaseChat Overview and Summary

The case of Dirani v Tarabay and anor (No.2) involved the parties Dirani and Tarabay, with the dispute centering on the issue of legal costs. The case was heard in the Federal Court of Australia, where the primary judge had ordered that no costs be awarded in relation to the proceedings. The decision was challenged by the plaintiff, Dirani, who sought a review of the costs order. The Court of Appeal was thus tasked with determining whether the primary judge's decision was correct and whether the plaintiff's application should be dismissed.

The legal issues that the court was required to decide included whether the primary judge had erred in his assessment of the costs order and whether the plaintiff's application for review of the costs order should be dismissed. The court had to consider the principles governing costs orders in litigation, including the factors that should be taken into account when determining whether to award costs and the appropriate circumstances under which costs should be awarded. The court also had to consider the plaintiff's arguments and submissions in relation to the costs order and determine whether they were valid and supported by the law.

The court's reasoning and outcome focused on the principle that the decision of whether to award costs is a matter of judicial discretion. The court held that the primary judge had exercised his discretion properly and had considered all relevant factors in making his decision. The court found that the plaintiff's arguments and submissions were not sufficient to establish that the primary judge had erred in his assessment of the costs order. The court held that the primary judge's decision was correct and that the plaintiff's application for review of the costs order should be dismissed. Therefore, the court affirmed the primary judge's decision and made no order for costs.

Orders

Orders of the court

No order for costs.

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:	Dirani v Tarabay and anor (No.2) [2008] NSWADT 94
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Hussein Dirani FIRST RESPONDENT Elie Tarabay SECOND RESPONDENT Houda Tarabay
FILE NUMBER:	075024
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	3 January 2008
DATE OF DECISION:	20 March 2008
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45 Rose Holdings Pty Limited v Chusap [2002] NSWADT 153 Smith t/as Flames Grill & Carvery v Trust Company of Australia Pty Limited [2008] NSWADT 10 Soloman v Singh (No.3)[2006] NSWADT 120
REPRESENTATION:	APPLICANT B Lane, solicitor RESPONDENTS G Penhall, solicitor
ORDERS:	No order for costs.