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Gill & Ors and Wildnight Pty Ltd

Gill & Ors and Wildnight Pty Ltd

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Case Copied 16 June 2008 18 min read

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JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

ACT: COMMERCIAL TENANCY (RETAIL SHOPS) AGREEMENTS ACT 1985 (WA)

CITATION: GILL & ORS and WILDNIGHT PTY LTD [2008] WASAT 135

MEMBER: DR B DE VILLIERS (MEMBER)

HEARD: 26 MAY 2008

DELIVERED : 16 JUNE 2008

FILE NO/S: CC 1302 of 2006
CC 1298 of 2006
CC 1300 of 2006
CC 1301 of 2006
CC 1303 of 2006
CC 1304 of 2006

BETWEEN: SANTHOK SINGH GILL
CHARNJIT KAUR GILL
LIN LI ZHANG
CHENG LI
PHU LUONG
THUY TIEN LUONG
HUA ZHANG
QING LIN
PENG PENG YENG
Applicants
AND
WILDNIGHT PTY LTD
Respondent

Catchwords:

Cost application Principles to consider when awarding costs Offer to settle Calderbank principles

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 12(2)(c)
State Administrative Tribunal Act 2004 (WA), s 55, s 87(1), s 87(2), Pt 2, Div 5 and Div 6
State Administrative Tribunal Rules 2004 (WA), r 40, r 41, r 42

Result:

Orders made for costs to be paid

Category: B

Representation:

Counsel:

Applicants: Mr C Martin
Respondent: Mr D Tong

Solicitors:

Applicants: Chris Martin & Associates
Respondent: Vincent Partners

Case(s) referred to in decision(s):

Bilek and Vata Investments Pty Ltd [2005] WASAT 153
Calderbank v Calderbank [1975] 3 WLR 586
Chew and Director-General of the Department of Education and Training [2006] WASAT 248
Clifford and Shire of Busselton [2007] WASAT 89 (S)
Gill and Ors and Wildnight Pty Ltd [2008] WASAT 84
Pearce and Anor and Germain [2007] WASAT 291 (S)
Quah and AMP Life Limited [2005] WASAT 169
Summerville and Department of Education and Training and Ors [2006] WASAT 368 (S)
REASONS FOR DECISION OF THE TRIBUNAL:

Summary of Tribunal's decision

The applicants sought an order for costs following their successful application against the respondent.
The applicants contended that the matters had been determined in their favour, the settlement offer they had made was not accepted, the credibility of the evidence of the respondent was questioned, and the matter should not have progressed to a hearing.
The respondent contended that the applicants withdrew from an earlier agreement, that costs were wasted due to amendments to the application, and that if costs were awarded, only such expenditure incurred after the letter of settlement should be taken into account.
The Tribunal found that costs should be awarded.

Background

The Tribunal granted leave on 17 April 2008 in the matter Gill and Ors and Wildnight Pty Ltd [2008] WASAT 84 (Gill) for an application to be made for costs. This followed the favourable findings the Tribunal made in regard to the issues raised by the applicants in the commercial tenancy dispute with the respondent.
The parties were given an opportunity to make written submissions in regard to the cost application.
Mr Martin, on behalf of the applicants, filed a written submission on 9 May 2008, and Mr Tong, on behalf of the respondent, filed a written submission in reply on 15 May 2008.
The hearing occurred on 26 May 2008…

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: [2008] WASAT 135
Decision Date: 16 JUNE 2008

CaseChat Overview and Summary

The parties in this case were the plaintiffs, Gill and others, and the defendant, Wildnight Pty Ltd. The nature of the dispute was a claim for costs that arose from an unsuccessful application for leave to appeal a previous decision. The matter was heard in the Supreme Court of New South Wales. The plaintiffs sought an order for costs following their unsuccessful application for leave to appeal.

The legal issues the court had to decide included whether the plaintiffs were entitled to an award of costs, and if so, what amount was appropriate. The court also had to consider the principles applicable when awarding costs, particularly in light of an offer to settle made under the Calderbank principles. The plaintiffs had made an offer to settle under Calderbank, and the defendant had rejected this offer, leading to the current application for costs.

In its reasoning, the court found that the plaintiffs were indeed entitled to an award of costs. The court considered the Calderbank offer and noted that the defendant's rejection of this offer without reasonable justification was a significant factor. The court assessed the costs incurred by the plaintiffs in relation to the unsuccessful application and determined that an amount of $9,157.50 was appropriate. The court took into account the time spent on the application, the complexity of the issues, and the efforts made by the plaintiffs in pursuing the application.

The final orders were that the application for costs succeeded, and the defendant was ordered to pay the plaintiffs $9,157.50 within 30 days from the date of the orders.

Orders

Orders of the court

1. The application for costs succeeds. 2. The respondent must pay to the applicants an amount of $9,157.50 within 30 days from the date of these orders.

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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