Gelin v Sumner (No 2) (RLD) - [2013] NSWADTAP 14

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Gelin v Sumner (No 2) (RLD) [2013] NSWADTAP 14
Hearing dates: On the papers
Decision date: 28 March 2013
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
Decision:
The parties are to bear their own costs of the proceedings in the Retail Leases Division and the proceedings before the Appeal Panel.

Catchwords: Costs - retail lease - appellate and first instance proceedings
Legislation Cited: Administrative Decisions Tribunal Act 1997
Conveyancing Act 1919
Corporations Act 2001 (Cth)
Retail Leases Act 1994
Cases Cited: Adwell Holdings Pty Ltd v Ull Pty Ltd [2010] NSWADT 166
AT v Commissioner of Police [2010] NSWCA 131
Chand v Railcorp of NSW (No 2) [2011] NSWCA 80
Gelin v Sumner [2012] NSWADT 81
Gelin v Sumner (RLD) [2012] NSWADTAP 52
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1
Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13
Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner Pty Ltd (ACN 109 033 794) (No 2) (RLD) [2012] NSWADTAP 40
Category: Costs
Parties: Ben Ami Gelin (Appellant)
Ian Ross Sumner (First Respondent)
Louise Gay Sumner (Second Respondent)
Representation: B Gelin (Appellant in person)
Messenger & Messenger (Respondents)

File Number(s): 129009
Decision under appeal

Citation:

Gelin v Sumner [2012] NSWADT 81

Date of Decision:

2012-05-02 00:00:00

Before:

Retail Leases Division

File Number(s):

115102

reasons for decision

This decision concerns applications by the successful party for the costs relating to (a) proceedings in the Retail Leases Division and (b) an unsuccessful appeal instituted against the decision handed down by the Division.

Because the only issue to be decided is that of costs, the Appeal Panel is constituted by a Deputy President sitting alone, pursuant to section 24A(2)(a) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act').

Section 77A of the Retail Leases Act 1994 provides that costs in Tribunal proceedings brought under this Act may be awarded under section 88 of the ADT Act. Relevant provisions of section 88 are reproduced below.

Under section 88, an Appeal Panel hearing an appeal from a decision at first instance has power to award costs in relation to the proceedings that led to this decision. This was confirmed by a ruling of the Court of Appeal in Chand v Railcorp of NSW (No 2) [2011] NSWCA 80 at [25 - 28]. A dictum in a recent Appeal Panel decision (Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 at [2]) suggesting that this power may be lacking appears to be based on a misreading of the Court of Appeal's ruling.

These proceedings were commenced on 29 July 2011 by the lessor under a retail shop lease ('the Lease'). He sought to recover amounts claimed to be owing to him since 2008 by the guarantors of the lessee's liabilities under the Lease.

The lessor, Dr Ben Gelin, was the…

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 Gelin v Sumner (No 2) (RLD)

Details

AGLC: Gelin v Sumner (No 2) (RLD) [2013] NSWADTAP 14
Case: [2013] NSWADTAP 14
Decision Date: 28 March 2013

CaseChat Overview and Summary

The case of Gelin v Sumner (No 2) (RLD) involved a dispute between the appellant, Gelin, and the respondent, Sumner, relating to a retail lease. Gelin, the tenant, sought relief against Sumner, the landlord, in the Retail Leases Division, which was subsequently appealed to the Appeal Panel. The central issue revolved around the allocation of costs incurred during both the initial proceedings and the appellate process.

The primary legal issue before the court was whether the respondent was entitled to an order for costs in the proceedings before the Appeal Panel. The court had to consider the principles of costs in litigation, particularly focusing on the usual rule that the costs follow the event. The court also needed to assess whether the appeal was frivolous or vexatious, which could affect the costs order.

The Appeal Panel determined that neither party was entitled to an order for costs in the proceedings before the Panel. The Panel concluded that the appeal was not frivolous or vexatious, and therefore, the usual rule of costs following the event did not apply. The Panel held that the parties should bear their own costs for both the proceedings in the Retail Leases Division and the appeal, reflecting a balanced approach to the allocation of costs in such disputes.

No additional orders were made by the Appeal Panel. The decision underscored the importance of the principle that the parties should bear their own costs in situations where the appeal is not deemed frivolous or vexatious.

Orders

Orders of the court

The parties are to bear their own costs of the proceedings in the Retail Leases Division and the proceedings before the Appeal Panel.

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:	Gelin v Sumner (No 2) (RLD) [2013] NSWADTAP 14
Hearing dates:	On the papers
Decision date:	28 March 2013
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President
Decision:	The parties are to bear their own costs of the proceedings in the Retail Leases Division and the proceedings before the Appeal Panel.
Catchwords:	Costs - retail lease - appellate and first instance proceedings
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Conveyancing Act 1919 Corporations Act 2001 (Cth) Retail Leases Act 1994
Cases Cited:	Adwell Holdings Pty Ltd v Ull Pty Ltd [2010] NSWADT 166 AT v Commissioner of Police [2010] NSWCA 131 Chand v Railcorp of NSW (No 2) [2011] NSWCA 80 Gelin v Sumner [2012] NSWADT 81 Gelin v Sumner (RLD) [2012] NSWADTAP 52 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1 Trad v Jones (No 3) (EOD) [2013] NSWADTAP 13 Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner Pty Ltd (ACN 109 033 794) (No 2) (RLD) [2012] NSWADTAP 40
Category:	Costs
Parties:	Ben Ami Gelin (Appellant) Ian Ross Sumner (First Respondent) Louise Gay Sumner (Second Respondent)
Representation:	B Gelin (Appellant in person) Messenger & Messenger (Respondents)
File Number(s):	129009
Decision under appeal	Citation: Gelin v Sumner [2012] NSWADT 81 Date of Decision: 2012-05-02 00:00:00 Before: Retail Leases Division File Number(s): 115102