Jafari v Lituma Pty Limited (No 2) - [2006] NSWADT 225

CITATION: Jafari v Lituma Pty Limited (No 2) [2006] NSWADT 225

DIVISION: Retail Leases Division

PARTIES: FIRST APPLICANT AND SECOND RESPONDENT
Zahra Jafari
FIRST RESPONDENT AND SECOND APPLICANT
Lituma Pty Limited

FILE NUMBER: 055016 and 055024

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 11/02/2005

DATE OF DECISION:
08/01/2006

BEFORE: Higgins S - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

CASES CITED: Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164
Jafari v Lituma Pty Limited [2005] 64
Lituma Pty Ltd v Jaffari (RLD) [2005] NSWADTAP 37
Petria Pty Ltd v Makhoul [2005] NSWADTAP 12
Prasad v Fairfield City Council (RLD) [2002] NSWADTAP 2
Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27
Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58

REPRESENTATION:
FIRST APPLICANT AND SECOND RESPONDENT
In person
FIRST RESPONDENT AND SECOND APPLICANT
J Grellman, solicitor

ORDERS: The respondent’s application for costs of the applicant’s application for an urgent interim order is dismissed

Background

1 This is an application by the respondent lessor seeking an order for its costs of the applicant’s application, of 25 August 2005, for an urgent interim order. The order sought by the applicant lessee included an order that she be granted possession of the leased premises. The respondent had locked the applicant out of the leased premises in late January 2005 on the grounds that she had failed to comply with the terms of a Deed of Release, executed on 26 November 2004 (“the November 2004 Deed”). As a result of that lockout the applicant commenced these proceedings in the Tribunal and the respondent made a counterclaim against the applicant.

2 When the matter first came before the Tribunal the respondent raised a preliminary point in respect to the proper construction of the November 2004 Deed. With the consent of the parties, the Tribunal determined this construction issue as a preliminary matter: see Jafari v Lituma Pty Limited [2005] NSWADT 64. The construction issue was determined in favour of the applicant and the respondent appealed to the Appeal Panel. On 21 July 2005, the Appeal Panel delivered its decision and dismissed the appeal: see Lituma Pty Ltd v Jaffari (RLD) [2005] NSWADTAP 37. In dismissing the appeal the Appeal Panel affirmed the orders that had been made by the Tribunal, with one variation of substance, which is not necessary to repeat in these reasons for decision. It was as a result of this decision that the applicant sought to re-enter possession of the leased premises.

3 The applicant’s application for an interim order was ultimately settled on 22 September 2005, without the matter being fully argued or the Tribunal being required to make a determination. In settling the matter the applicant was given possession of the premises. Notwithstanding this agreement, the respondent made an application for its costs in respect to the interim order application. In this regard the respondent filed an…

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: [2006] NSWADT 225
Decision Date: 01/08/2006

CaseChat Overview and Summary

The case of Jafari v Lituma Pty Limited (No 2) arose before the Federal Court of Australia, with the parties involved being Jafari, the applicant, and Lituma Pty Limited, the respondent. The dispute centred on the costs incurred by the respondent in defending an urgent interim order application filed by the applicant. The Federal Court was tasked with determining whether the respondent was entitled to recover the costs associated with the interim order application from the applicant.

The central legal issue before the court was whether the respondent was entitled to recover costs from the applicant for the urgent interim order application. This required the court to consider the circumstances under which such costs might be awarded and the principles governing the allocation of costs in litigation. The court had to examine whether the interim order application was frivolous, vexatious, or made without reasonable cause, as these factors could justify an award of costs against the applicant.

The court found that the application for an urgent interim order was not frivolous or vexatious, and there was a reasonable cause for it. Therefore, the court ruled that the respondent was not entitled to recover the costs of the interim order application from the applicant. The court held that the application was not without merit, and thus the respondent's application for costs was dismissed. The decision underscored the importance of evaluating the merits of interim order applications and the judicious use of court resources, while also emphasising the protection of parties from unjust cost awards.

Orders

Orders of the court

The respondent's application for costs of the applicant's application for an urgent interim order is dismissed

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.

CITATION:	Jafari v Lituma Pty Limited (No 2) [2006] NSWADT 225
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT AND SECOND RESPONDENT Zahra Jafari FIRST RESPONDENT AND SECOND APPLICANT Lituma Pty Limited
FILE NUMBER:	055016 and 055024
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	11/02/2005
DATE OF DECISION:	08/01/2006
BEFORE:	Higgins S - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Gizah Pty Ltd v AXA Trustees Limited (No. 2) [2001] NSWADT 164 Jafari v Lituma Pty Limited [2005] 64 Lituma Pty Ltd v Jaffari (RLD) [2005] NSWADTAP 37 Petria Pty Ltd v Makhoul [2005] NSWADTAP 12 Prasad v Fairfield City Council (RLD) [2002] NSWADTAP 2 Sarip Investment Pty Ltd v Uno Uno Pty Ltd [2004] NSWADT 27 Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58
REPRESENTATION:	FIRST APPLICANT AND SECOND RESPONDENT In person FIRST RESPONDENT AND SECOND APPLICANT J Grellman, solicitor
ORDERS:	The respondent’s application for costs of the applicant’s application for an urgent interim order is dismissed