Fagerlund v PPS Nominees Pty Ltd (No 2)

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:	Fagerlund v PPS Nominees Pty Ltd (No 2) [2011] NSWADT 52
Hearing dates:	On the papers
Decision date:	14 March 2011
Before:	Deputy President L Olsson SC G Griffiths, Non Judicial Member R Ward, Non Judicial Member
Decision:	The parties bear their own costs up and until 7 April 2009 and that thereafter, the Applicants pay the Respondents costs on an indemnity basis.
Catchwords:	Misleading and deceptive conduct; unconscionable conduct; Calderbank offer
Legislation Cited:	Retail Leases Act 1994
Cases Cited:	Calderbank v Calderbank [1975] 3 All ER 333 Salon Today Pty Ltd v M.M.I.R Pty Limited [2009] NSWADT 71. Rucom Pty Ltd and Anor v Multiplex and Ors [2010] NSWADT 1. Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No. 2) [2010] NSWADT 11
Category:	Costs
Parties:	Debbie Marie Fagerlund (First Applicant) Wade Anthony Atkinson (2nd Applicant) PPS Nominees Pty Ltd (Respondent)
Representation:	A Fernon (Applicant) M Ellicott (Respondent) S & T Lawyers (Applicant) Minter Ellison (Respondent)
File Number(s):	085230 and 095010

reasons for decision

Costs

1. The Tribunal delivered its decision in this matter on 3 February 2011.

1. The following orders were made:

Application dismissed.

Cross Application allowed in part. The Cross Respondents will pay the Cross Applicant the sum of $88,830.90 calculated as follows:

$23,046.85

$13,784.10

$22,000.00

The Cross Applicant is entitled to interest.

The Tribunal notes that the parties have requested the opportunity to make submissions as to costs. The Tribunal orders that each party pay its own costs, which order will be stayed for the period of 14 days from the date hereof during which time the parties are invited to make submissions as to costs in writing to the Tribunal.

1. The parties were invited to make written submissions as to costs. Submissions have been received from the Respondent. The Applicants have not made any submissions.

1. The Respondent, in its submissions, refers to two offers that it made pursuant to the principles of Calderbank v Calderbank [1975] 3 All ER 333 and Salon Today Pty Ltd v M.M.I.R Pty Limited [2009] NSWADT 71.

1. The first offer was made on 7 April 2009. In that offer, the Respondent gave an outline of the deficiencies it perceived in the Applicants' case, made observations about the mounting costs of the proceedings and offered to accept $50,000.00 inclusive of costs in full and final settlement of the matter.

1. The offer was rejected. The Respondents have obtained a substantially better result that the terms of that offer.

1. The second offer was made on 9 April 2009 after discovery and service of evidence had been completed.

1. In the second offer, the Respondent gave an outline of the deficiencies in the Applicants' case as it saw it, made observations about the costs of the proceedings and made an offer that each party walk away and pay their own costs.

1. This offer was rejected.

1. The second offer was made on terms that were substantially more favourable to the Applicants than the terms…