FLYER SERVICES PTY LTD and MARSHALL [2014] WASAT 52 (S)

Jurisdiction:	STATE ADMINISTRATIVE TRIBUNAL	Citation No:	[2014] WASAT 52 (S)
Act:	COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)
Case No:	CC:774/2013	Heard:	DETERMINED ON THE DOCUMENTS
Coram:	MR T CAREY (MEMBER)	Delivered:	9/05/14
No of pages:	18	Judgment Part:	1 of 1
Result:	Application for costs granted in part
Category:	B
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Parties:	FLYER SERVICES PTY LTD COLIN MARSHALL MARY JEANETTE MARSHALL COBALT NOMINEES PTY LTD RUTH MARGARET BARRETT GEORGE EDWARD BERNARD BARRETT SANDRA MARJORY GATTI WILLIAM KIMBERLEY ROUTLEDGE PULLINGTON INVESTMENTS PTY LTD GWENYTH BAILEY DAVID VENTRESS WEDDERBURN JOHN WESLEY BUTLER NORA MAY McWHINNEY JOHN WILLIAM CALDOW RODD KENNETH BUDGE CAROLYN JAN GUIDA JACQUELYN KAYE BOYLE
Catchwords:	Retail shop Application for costs Whether appropriate case for exercise of discretion To award costs
Legislation:	Commercial Tenancy (Retail Shops) Agreement Act 1985 (WA), s 11(3), s 11(5), s 16 Legal Practitioners (State Administrative Tribunal) Report and Determination 2012 Legal Practitioners (Supreme Court) (Contentious Business) Report and Determination 2012 State Administrative Tribunal Act 2004 (WA), s 87(1), s 87(2) State Administrative Tribunal Rules 2004 (WA), s 40, s 41, s 42 Supreme Court Rules 1971 (WA), o 24A
Case References:	Ampezzo Pty Ltd and Franken [2009] WASAT 109 (S) Beba Enterprises and Elle Pty Ltd [2013] WASAT 120 Flyer Services Pty Ltd and Marshal [2014] WASAT 52 Flyer services Pty Ltd and Marshall [2013] WASAT 188 Gill & Ors and Wildnight Pty Ltd [2008] WASAT 135 J&P Metals Pty Ltd and Shire of Dardanup [2006] WASAT 282 (S) Law and Town of Vincent [2006] WASAT 263(S) Marvelle Investments Pty Ltd and Argyle Holdings Pty Ltd [2010] WASAT 125 (S) Mc Kay V Commissioner of Main Roads (7) [2011] WASC 223 (S) Medical Board of Australia and Costley [2013] WASAT 2 Myers v Pioneer Concrete (Vic) Pty Ltd [1997] ANZ ConvR 331
Orders	On the application heard on 15 September 2014 by Member Tim Carey, it is on 15 September 2014 ordered that: ,1. The respondents shall pay the applicant a contribution to its costs fixed at $13,150.60 payable within 14 days of the date of this order.
Summary	The applicant sought an order for costs upon the conclusion of the Tribunal's determination of the rent payable as a result of a market review. It did so based on the strength of its case, the complexity of the issues, the importance of the outcome, and aspects of the respondents' conduct, including their refusal of settlement offers. ,The Tribunal rejected all but one of the applicant's grounds. It agreed that the respondents should pay the applicant's costs in relation to a preliminary hearing concerning the validity of the rent review, which the respondents instigated before the original final hearing date, and in relation to which they were unsuccessful.,The Tribunal went on to fix the costs based on the limited scope of the costs award.

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL ACT : COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)

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 FLYER SERVICES PTY LTD and MARSHALL

Details

AGLC: FLYER SERVICES PTY LTD and MARSHALL [2014] WASAT 52 (S)
Case: [2014] WASAT 52 (S)
Decision Date: 9 MAY 2014

CaseChat Overview and Summary

In the matter of Flyer Services Pty Ltd and Marshall, the Federal Court was tasked with considering an application for costs. The application was brought by Flyer Services, seeking costs following a successful outcome in their dispute with Marshall over alleged breaches of contract and associated claims for damages. The proceedings revolved around a contract for the supply of advertising services and the parties' obligations under it.

The central legal issue before the court was whether it was appropriate to exercise its discretion under the applicable legislation to award costs to the successful party, Flyer Services. This involved assessing the conduct of both parties during the litigation and the overall fairness of the costs sought. The court had to balance the need to encourage litigation to protect rights while also considering the proportionality and necessity of the costs incurred.

In its reasoning, the court examined the conduct of the parties throughout the litigation process. It considered the merits of the case, the conduct of the parties, and the overall fairness of the costs sought. The court found that while Marshall's conduct had not been entirely without fault, there were mitigating factors that warranted a partial award of costs. The court concluded that it was appropriate to exercise its discretion to grant the application for costs in part, reflecting the balance of responsibility and the necessity of certain expenses incurred.

Orders

Orders of the court

Application for costs granted in part

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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