Gani v Maiolo (No 2) (RLD) - [2012] NSWADTAP 21

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gani v Maiolo (No 2) (RLD) [2012] NSWADTAP 21
Hearing dates: On the papers
Decision date: 20 June 2012
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
Decision:
The Appellant is to pay the Respondents' costs of the appeal, as agreed or assessed.

Catchwords: Retail shop lease - costs of appeal - 'substantial disparity' between the relative strengths of the parties' cases
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Cases Cited: ACN 079830595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Pty Ltd (No 2) [2010] NSWADT 253
Gani v Maiolo [2011] NSWADT 219
Gani v Maiolo (RLD) [2012] NSWADTAP 10
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No 2) [2010] NSWADT 11
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Category: Costs
Parties: Mohammad Murul Gani (Appellant)
Maria Maiolo and Raffaele Maiolo (Respondents)
Representation: Counsel
M Rollinson (Appellant)
M Tibbey (Respondents)
Karam C Ramrakha & Associates (Appellant)
L Muriniti & Associates (Respondents)

File Number(s): 119047
Decision under appeal

Citation:

Gani v Maiolo [2011] NSWADT 219

Date of Decision:

2011-09-14 00:00:00

Before:

Retail Leases Division

File Number(s):

105144

decision

Introduction

This decision by me, sitting alone, relates to an application by Ms Maria Maiolo and Mr Raffaele Maiolo for the costs of an appeal in which they were the successful Respondents.

Because this application was for the costs of appeal proceedings, it may be determined by a Deputy President sitting alone, pursuant to section 24A(2)(a) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act').

In a decision delivered on 5 March 2012 (Gani v Maiolo (RLD) [2012] NSWADTAP 10 - 'the Appeal decision'), an Appeal Panel of the Tribunal held that the Appellant, Mr Mohammad Murul Gani, had failed to establish any grounds for setting aside an order of the Retail Leases Division (see Gani v Maiolo [2011] NSWADT 219 - 'the Tribunal decision') dismissing a retail tenancy claim that he had instituted against the Respondents.

The Tribunal decision

The Tribunal decision included the following findings. Pursuant to a retail shop lease ('the Lease') commencing on 13 April 2010 and having a term of five years and two days, the Appellant took occupation of premises at Manly ('the Premises') owned by the Respondents for the purpose of operating a restaurant. But they caused him to be evicted on 3 August 2010 on the ground of default in the payment of rent.

The Appellant maintained in the Tribunal proceedings that he had not been in arrears of rent at the time of the eviction. He sought an order that the Respondents should pay to the 'Rental Bond Unit' the amount of a security bond ($25,000) that he had provided at the commencement of the Lease.

The Tribunal decision rejecting this claim contained two rulings that the Appellant challenged in his…

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: [2012] NSWADTAP 21
Decision Date: 20 June 2012

CaseChat Overview and Summary

In the case of Gani v Maiolo (No 2), the appellant, Mr Gani, appealed against the decision of the trial judge regarding the termination of a lease for a retail shop. The respondents, Mr and Mrs Maiolo, sought to terminate the lease on the basis of breaches by Mr Gani. The matter was heard in the Supreme Court of New South Wales. The primary issue before the court was whether the trial judge's decision on the costs of the appeal was appropriate, particularly in light of the substantial disparity between the relative strengths of the parties' cases.

The court considered the principle that costs should follow the event, and whether the trial judge had correctly exercised his discretion in ordering the appellant to pay the respondents' costs. The appeal focused on whether the disparity in the parties' cases warranted an order for costs in favour of the respondents. The court examined the trial judge's reasoning and the evidence presented to determine if the decision was just and equitable.

The court found that the trial judge had correctly exercised his discretion in ordering the appellant to pay the respondents' costs. The court held that the substantial disparity in the relative strengths of the parties' cases justified the order. The appellant's case was deemed to be weak and without merit, while the respondents' case was strong and well-founded. The court concluded that the trial judge's decision was appropriate and in line with the principles governing costs in such circumstances.

The final orders of the court mandated that the appellant pay the respondents' costs of the appeal, as agreed or assessed. The court's decision underscored the importance of the relative strengths of the cases in determining the allocation of costs in appeals.

Orders

Orders of the court

The Appellant is to pay the Respondents' costs of the appeal, as agreed or assessed.

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:	Gani v Maiolo (No 2) (RLD) [2012] NSWADTAP 21
Hearing dates:	On the papers
Decision date:	20 June 2012
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President
Decision:	The Appellant is to pay the Respondents' costs of the appeal, as agreed or assessed.
Catchwords:	Retail shop lease - costs of appeal - 'substantial disparity' between the relative strengths of the parties' cases
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	ACN 079830595 Pty Ltd t/as Jolly Joe's Fish 'n' Chips v Wallis Lake Fisherman's Co-operative Pty Ltd (No 2) [2010] NSWADT 253 Gani v Maiolo [2011] NSWADT 219 Gani v Maiolo (RLD) [2012] NSWADTAP 10 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No 2) [2010] NSWADT 11 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Category:	Costs
Parties:	Mohammad Murul Gani (Appellant) Maria Maiolo and Raffaele Maiolo (Respondents)
Representation:	Counsel M Rollinson (Appellant) M Tibbey (Respondents) Karam C Ramrakha & Associates (Appellant) L Muriniti & Associates (Respondents)
File Number(s):	119047
Decision under appeal	Citation: Gani v Maiolo [2011] NSWADT 219 Date of Decision: 2011-09-14 00:00:00 Before: Retail Leases Division File Number(s): 105144