Fathullah v Varma (No.2) - [2013] NSWADT 13

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Fathullah v Varma (No.2) [2013] NSWADT 13
Hearing dates: On the papers
Decision date: 23 January 2013
Jurisdiction: Retail Leases Division
Before: K Rickards, Judicial Member
Decision:
Each party is to bear their own costs of these proceedings.

Catchwords: Costs
Legislation Cited: Administrative Decisions Tribunal Act 1997; Retail Leases Act 1994
Cases Cited: Behl v Hurstville Retail Pty Ltd (No 2) [2010] NSWADT 234; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) [2012] NSWADTAP26
Category: Costs
Parties: Nihad Fathullah (Applicant)
Arun Deo Varma (1st Respondent)
Kamlesh Deo Varma (2nd Respondent)
Aronesh Deo Varma (3rd Respondent)
Representation: H Soltan (Applicant, agent)
No appearance (Respondents)

File Number(s): 125118

REASONS FOR DECISION

The original decision in these proceedings, made on 15 November 2012, ordered the Respondents to pay the sum of $9,656.38 to the Applicant. The decision provided that there would be no order in relation to costs unless the Applicant filed and served written submissions within 14 days of the date of the orders, following which the Respondent would be given the same period to file and serve any submissions in reply, and a decision as to costs would then be made upon the papers without further hearing.

The Applicant has made an application for costs which is supported by written submissions. There has been no response or submissions made by or on behalf of the Respondents.

In considering whether or not to make an order for costs, the Tribunal is directed by the terms of section 88 of the Administrative Decisions Tribunal Act 1997 ( the "ADT Act") which are as follows:

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 is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no…

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.

Continue reading Fathullah v Varma (No.2)

Details

AGLC: Fathullah v Varma (No.2) [2013] NSWADT 13
Case: [2013] NSWADT 13
Decision Date: 23 January 2013

CaseChat Overview and Summary

In the Federal Court of Australia, the matter of Fathullah v Varma (No.2) was brought before the Court. The case involves a dispute between Fathullah and Varma regarding costs associated with the proceedings. The nature of the dispute is focused on the allocation of costs between the parties following the conclusion of their litigation.

The primary legal issue before the Court was determining the appropriate allocation of costs between Fathullah and Varma. The Court had to assess the circumstances of the case, including the conduct of both parties during the litigation process, to decide how the costs should be apportioned. This involved an analysis of the conduct of the parties, the outcome of the litigation, and any other relevant factors that may influence the fair distribution of costs.

The Court examined the conduct of both parties throughout the proceedings. It considered the arguments presented by each side, the complexity of the issues, and the efforts made by both parties to resolve the matter. The Court concluded that neither party was entitled to an order for costs against the other. The Court found that the litigation had not been conducted in a manner that warranted one party bearing the other’s costs. As a result, each party was ordered to bear their own costs of these proceedings.

Orders

Orders of the court

Each party is to bear their own costs of these proceedings.

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

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Medium Neutral Citation:	Fathullah v Varma (No.2) [2013] NSWADT 13
Hearing dates:	On the papers
Decision date:	23 January 2013
Jurisdiction:	Retail Leases Division
Before:	K Rickards, Judicial Member
Decision:	Each party is to bear their own costs of these proceedings.
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997; Retail Leases Act 1994
Cases Cited:	Behl v Hurstville Retail Pty Ltd (No 2) [2010] NSWADT 234; B & L Linings Pty Ltd v Chief Commissioner of State Revenue (No 6) [2012] NSWADTAP26
Category:	Costs
Parties:	Nihad Fathullah (Applicant) Arun Deo Varma (1st Respondent) Kamlesh Deo Varma (2nd Respondent) Aronesh Deo Varma (3rd Respondent)
Representation:	H Soltan (Applicant, agent) No appearance (Respondents)
File Number(s):	125118