Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD)
[2010] NSWADTAP 3
•20 January 2010
Appeal Panel - Internal
CITATION: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 PARTIES: APPELLANT
RESPONDENT
Jonamill Pty Ltd
Alramon Pty LtdFILE NUMBER: 099028 HEARING DATES: On the papers SUBMISSIONS CLOSED: 20 November 2009
DATE OF DECISION:
20 January 2010BEFORE: Chesterman M - Deputy President; Higgins S - Judicial Member; Tyler T - Non-Judicial Member CATCHWORDS: Costs of appeal – retail shop lease – Administrative Decisions Tribunal Act 1997, section 88 DECISION UNDER APPEAL: Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89 FILE NUMBER UNDER APPEAL: 085020 DATE OF DECISION UNDER APPEAL: 10/16/2009 LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Victorian Civil and Administrative Tribunal Act 1998 (Vic)CASES CITED: Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89
Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302
Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Dennis Family Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691
Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Jonamill Pty Ltd v Alramon Pty Ltd (RLD) [2009] NSWADTAP 59
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749
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
Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71
Winky Pop Pty Ltd v Hobsons Bay CC [2008] VCAT 1512REPRESENTATION: APPELLANT
RESPONDENT
M Sneddon, barrister, and D Parish, barrister
K Oliver, barristerORDERS: The Appellant is to pay the Respondent’s costs of this appeal, as agreed or as assessed under the Legal Profession Act 2004.
REASONS FOR DECISION
Introduction
1 This decision calls for the interpretation and application, within the specific context of an appeal against a decision made in the Retail Leases Division, of the relatively novel criterion of ‘fairness’ that now regulates the Tribunal’s power to award costs in many matters falling within its jurisdiction.
2 The proceedings at first instance were initiated by Alramon Pty Ltd (hereafter ‘Alramon’). It had granted a lease (‘the Lease’) of retail shop premises to the Respondent, Jonamill Pty Ltd (hereafter ‘Jonamill’). The Lease was governed by the Retail Leases Act 1994 (‘the RL Act’). Jonamill maintained that it had validly exercised an option of renewal of the Lease. Alramon’s position, however, was that it had not received a notice of exercise of the option within the period stipulated in the Lease. It sought a declaration to the effect that it had the right not to grant a renewal of the Lease and that it was entitled to vacant possession of the leased premises.
3 In the decision under appeal (Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89), the Tribunal held in favour of Alramon. It made orders as follows:-
2. I declare that the Lease agreement between the parties terminated on 31 January 2008.1. I declare that there has not been a valid exercise by the Respondent of the Respondent’s option to renew the lease of the subject premises at Shop 8A, 144-148 Cox’s Road North Ryde NSW pursuant to Clause 14.1 of the Lease agreement between the parties dated 1 February 2003.
4 Jonamill appealed, claiming that the Tribunal erred in law in a number of respects. It sought an order setting aside the Tribunal’s decision. Following a hearing on 9 September 2009, we delivered a decision on 16 October 2009 (Jonamill Pty Ltd v Alramon Pty Ltd (RLD) [2009] NSWADTAP 59) dismissing the appeal.
5 Order 2 of our decision was as follows:-
There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined ‘on the papers’, pursuant to section 76 of the Administrative Decisions Tribunal Act 1997, unless the Appeal Panel decides that a further hearing is required.
6 On 6 November 2009, Alramon filed an application for the costs of the appeal, with supporting submissions. Jonamill filed its submissions in response on 20 November 2009. Having considered these submissions, we are satisfied that it is appropriate for us to decide the question of costs ‘on the papers’.
Relevant aspects of the decision under appeal
7 The principal question in dispute between the parties was whether a notice of exercise of the option to renew the Lease, addressed by Jonamill to Alramon, had been sent to the correct postal address. Before this notice was posted by Jonamill, Alramon had sent to Jonamill (and to a number of other parties) a letter notifying a change of its address (‘the change of address letter’). Because Jonamill did not take account of this change of address by Alramon, it sent its notice of exercise of option to an address that was no longer current.
8 The main issue to be determined by the Tribunal was whether the change of address letter complied with such requirements for giving notice of a change of address as a specific clause (clause 12.6) of the Lease imposed. The ruling that the letter did so comply was the foundation for the Tribunal’s conclusion that Jonamill had not validly exercised the option of renewal.
9 The relevant part of clause 12.6, which was headed ‘Notices’, stated:-
A notice given by a party under this Lease shall be in writing and delivered or sent by ordinary pre-paid post to the other party at the address set out on Page 1 of this Lease unless and until either party gives notice to the other of another address for the giving of notices and any notice shall be deemed duly served at the expiration of three (3) days after the time of posting…
10 In its submissions to the Tribunal at first instance, Jonamill relied on what it claimed to be defective features of the change of address letter to support its contention that this letter did not comply with clause 12.6. A summary of Jonamill’s criticisms of the letter, several of which found favour with the Tribunal, appears in our judgment on the appeal (Jonamill Pty Ltd v Alramon Pty Ltd (RLD) [2009] NSWADTAP 59) at [14 – 15].
11 The Tribunal ruled, however, that despite these defects the change of letter satisfied the criterion that it held to be applicable when considering any document purporting to constitute ‘notice’ under clause 12.6. In its decision (Alramon Pty Ltd v Jonamill Pty Ltd [2009] NSWADT 89) at [47], it indicated that this criterion was drawn from the judgment of Lord Steyn in the House of Lords case of Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 at 767. At [48], it formulated the criterion as follows:-
… the question to be addressed is not how [Jonamill] may have understood the [change of address] letter, but how a reasonable recipient in the situation of [Jonamill] would have understood the letter taking into account the “relevant objective contextual scene”.
12 The specific reasons why the Tribunal concluded that the change of address letter satisfied this criterion despite being open to criticism in certain respects appear in its decision at [52 – 53].
13 At [54], the Tribunal noted that in some correspondence between the parties during the six months following the sending of the change of address letter, Alramon’s new address was used. It commented that although Alramon had not argued that these communications constituted notice under clause 12.6, it accepted that ‘they support the contention that notice had properly been given’.
14 At [55], the Tribunal commenced a summary of its principal ruling in the case as follows: ‘Given the above, I am satisfied that the Applicant did properly give notice of change of address for service of notices…’
Relevant aspects of our decision on the appeal
15 The principal ground of the appeal. The appeal was confined almost entirely to the question whether the Tribunal was correct in concluding that the change of address letter complied with clause 12.6 of the Lease.
16 In written submissions filed before the hearing, Alramon maintained that this was a question of fact while Jonamill’s contention was that it was a question of law. In our decision on the appeal at [22 – 23], we gave the following explanation of the significance of this issue:-
22 Under section 113(2) of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’), an appeal on a question of law against a Tribunal decision may be made as of right, but a review of the merits of the decision requires the leave of the Appeal Panel.
23 In its notice of appeal (an amended version of which was filed, with leave, on the day of the appeal hearing) and at the hearing, Jonamill claimed that the Tribunal’s decision contained a number of errors of law, but did not seek leave for the appeal to extend to the merits.
17 At [24], we outlined a submission by Mr Oliver, counsel for Alramon, with which we subsequently indicated our broad agreement, as to what would follow if we held that the question of compliance with clause 12.6 was one of fact:-
24…It followed, in his submission, that unless the Tribunal misstated the legal principles to be applied in determining whether the letter sufficiently conveyed the information that Alramon had changed its address for notices under the Lease, Jonamill could only succeed in this part of its appeal if it persuaded us that there was no evidence to support the Tribunal’s conclusion that the letter did in fact sufficiently convey this information.
18 We then discussed some authorities on this point cited in the parties’ submissions, noting at [31] that ‘we had not been able to locate any cases bearing directly upon it’. At [33], we reached the conclusion that ‘while the question of what requirements must be satisfied by a notice purportedly given under clause 12.6 is a question of law, the question whether a particular notice satisfies those requirements is one of fact’.
19 We then discussed (at [35 – 42]) the submissions by Mr Sneddon, counsel for Jonamill, addressing the principal ground advanced by it in the appeal, namely, that the Tribunal erred in concluding that the change of address letter satisfied the requirements for giving ‘notice’ contained in clause 12.6 of the Lease. We noted at [36] that he ‘did not question to any material extent’ the Tribunal’s reliance on Lord Steyn’s judgment in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749. After having referred to two other authorities on which he relied, we recorded that in challenging the adequacy of the change of address letter he placed particular emphasis on the defects in it that had been the subject of attention by the Tribunal.
20 At [43 – 47], we outlined the opposing submissions of Mr Oliver. These included the proposition that since (a) Mr Sneddon did not allege any error by the Tribunal in relying on the principles stated in the Mannai case and (b) the question whether the change of address letter complied with those principles was one of fact, we could only disturb the Tribunal’s decision regarding compliance if we decided that there was no evidence on which it could be properly based (see our judgment at [43 – 44]).
21 At [48 – 53], we set out our reasons why we preferred Mr Oliver’s arguments to those of Mr Sneddon regarding the adequacy of the change of address letter. We pointed out at [49] that the content of the message conveyed in the letter was clear and free from ambiguity. At [50 – 51], we explained why we agreed with the Tribunal’s conclusion (in its decision at [53]) that, having regard to the ‘relevant objective contextual scene’ the terms of the letter, despite its defects, were sufficient to lead ‘a reasonable recipient in the position of the Respondent and with knowledge of the identities of the various owners from whom the shops were leased, to identify Alramon Pty Ltd as the lessor of these particular shop premises from which the Respondent conducted one of its franchise retail outlets, and accordingly to have considered that the… letter was in relation to those premises’. At [52], we added the following observations:-
52 …because we held (at [33] above) that the question whether the change of address notice complied with the requirements of clause 12.6 is one of fact, our decision on this ground of appeal is not dependent on our agreeing with the Tribunal’s decision on the facts. It would have been sufficient for us to determine that the Tribunal did not misstate the relevant law – a matter which Mr Sneddon appeared to acknowledge – and that there was some evidence in support of its factual conclusion. Our concurrence with the Tribunal’s conclusion regarding compliance goes significantly further than a ruling that there was some evidence on which it could be based.
22 Two subsidiary grounds of appeal. At [54 – 57], we dealt with a submission by Mr Sneddon that in its decision at [54], the Tribunal erred through taking into account a wholly irrelevant consideration when determining the issue of compliance: namely, that in certain correspondence between the parties during the period from March to October 2007 the new postal address for Jonamill was used. Our conclusion was that the Tribunal did indicate that in its opinion this evidence provided support for the contention that the change of address letter complied with clause 12.6. We agreed with Mr Sneddon that the Tribunal did at this point introduce an irrelevant consideration. But we held that this apparent error did not vitiate its decision, because this consideration, viewed in the light of the decision as a whole, did not play any significant role in inducing the Tribunal to decide the case in the manner that it did.
23 Finally, at [58 – 59], we rejected an argument by Mr Sneddon that due particularly to what he called ‘the lack of specificity’ of the opening words (‘Given the above’) of paragraph [55] of the Tribunal’s decision, its overall conclusion, stated in that paragraph, was ‘so devoid of any or [any] adequate process of reasoning, so as of itself to constitute an error of law, warranting a retrial’. We gave the following reason (at [59]):-
In view particularly of the detailed treatment given in the preceding paragraphs of the decision to the questions raised in the case, the natural meaning to be attributed to the phrase ‘Given the above’ is ‘For the foregoing reasons’ or something akin thereto.
Legal principles regarding the costs of this appeal
24 By virtue of section 77A of the RL Act, awards of costs in Tribunal proceedings under this Act are governed by section 88 of the Administrative Decisions Tribunal Act 1997 (‘the ADT Act’). So far as is relevant to the present decision, section 88 provides:-
(1A) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it is satisfied that it is fair to do so having regard to the following:…(1) Each party to proceedings before the Tribunal is to bear the party’s own costs in the proceedings, except as provided by this section.
(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,
(e) any other matter that the Tribunal considers relevant.(d) the nature and complexity of the proceedings,
25 The current version of section 88, in which the criterion of ‘fairness’ stated in subsection (1A) has replaced a rule that in the absence of ‘special circumstances’ no costs might be awarded, became operative on 1 January 2009.
26 Subparagraph (d) of subsection (1A) of section 88 requires the Tribunal to take account of the ‘nature’ of the relevant proceedings. In cases applying the earlier criterion of ‘special circumstances’ (see for example Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164), it was consistently held that because of the ‘commerciality’ of proceedings in the Retail Leases Division the interpretation of the phrase ‘special circumstances’ should differ significantly from the interpretation that might be adopted in any other Division of the Tribunal. In Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, the Court of Appeal held that the costs of proceedings in the Tribunal under the RL Act, both at first instance and on appeal, should be awarded against the lessors. At [60], Santow JA said: ‘While a finding of “serious unfairness” is not a prerequisite to determining that there are special circumstances, it is nonetheless a highly relevant consideration.’
27 Because the criterion is now one of ‘fairness’, as contrasted with the notion of ‘serious unfairness’ mentioned by Santow J, there are good grounds for believing that costs orders should be more readily obtainable. In Salon Today Pty Ltd v M M I R Pty Ltd [2009] NSWADT 71 (a case within the Retail Leases Division), the Tribunal advanced this proposition. At [72], it stated:-
What the Parliament has done, in its 1 January 2009 amendments, is recognise that there is a need for this Tribunal to be more flexible and widen the scope of a litigant’s entitlement to costs. This is a concept generally that is now accepted in this Division, and certainly touched upon by the Court of Appeal in Cripps , and the result of this re-assessment by the Parliament is a different test, a test of fairness, having regard to a number of parameters/factors.
28 In Rucom Pty Ltd and Anor v Multiplex & Ors [2010] NSWADT 1, a very recent decision in proceedings under the RL Act, the Tribunal, after referring to the Gizah and Salon Today decisions, said (at [37]):-
So, it is plain to me that, not only is this Division a commercial division dealing with commercial issues between lessors and lessees in a retail lease environment, but, in addition, proceedings should only be commenced in this Tribunal after very careful consideration of the merits of the case:… After all, commencing proceedings without such consideration inevitably results in considerable expense being incurred by the other party and one might not unreasonably ask: “why should the other party have to bear those expenses when the proceedings should not have been commenced in the first place?”
29 A further relevant aspect of the ‘nature’ of these proceedings is that they are appeal proceedings. In decisions applying the former criterion of ‘special circumstances’, the suggestion was made more than once that ‘more use should be made of costs orders where there is an appeal and it is dismissed’ (Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Pty Ltd (RLD) [2001] NSWADTAP 31 at [13]).
30 In Dykes and Wildie v Heatherway Pty Ltd (No 2) (RLD) [2007] NSWADTAP 46, the Appeal Panel said at [23]: ‘It is now accepted, we consider, that the making of an appeal without any reasonable prospect of success can provide a “special circumstance” sufficient to attract an adverse costs order.’ At [29], it gave the following explanation of the reasons underlying this proposition:-
Weak appeals should, we think, be discouraged. In the retail leases jurisdiction, particularly, the underlying circumstances (the ‘factual matrix’) are often complex. Often many points of law are raised. Trial level decisions are often long and detailed. An appeal will often involve the need to revisit all, or many, of the factual or legal elements of the underlying decision. The potential impact on the resources of the respondent is obvious.
31 With particular reference to the interpretation of section 88(1A)(c), however, two cases decided in the Victorian Civil and Administrative Tribunal (‘VCAT’) suggest that an award of costs should not be made merely because the case put forward by the losing party was ‘weak’. These cases relate to the statutory provision governing costs in the Tribunal (the Victorian Civil and Administrative Tribunal Act 1998 (Vic), section 109), on which the new version of section 88 is based. This provision contains a subparagraph in the same terms as section 88(1A)(c).
32 In the first of them, Dennis Corporation Pty Ltd v Casey CC (Red Dot) [2008] VCAT 691, the Tribunal said:-
14 The relative strengths of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a “tenable basis in law or fact” is a consideration included within the consideration of the relative strengths of the claims of the parties.
15 This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party’s claims have been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to “costs following the event”. It would compromise the general rule created in s 109(1).
16 As I have said, I do not think that the consideration indicates an order for costs where there are strong cases on either side, or perhaps evenly balanced cases on either side.
17 I am not minded to go so far as to say that a weak case will necessarily indicate an order for costs. The word “untenable” is stronger than “weak”. The Macquarie Dictionary, second revision, defines untenable as incapable of being held against attack, incapable of being maintained against argument, as an opinion, scheme etc.
19 I think “untenable” in the context of s 109(3)(c) means something like so weak as to be unarguable, rather than merely weak.18 The ethical rules of the Bar, as I recall them, indicates that a barrister has a duty to do his or her best by the client even if the client has a weak case. On the other hand, a different duty applies if the case is so weak as to be unarguable or “untenable”. It extends to a case that is so weak that it should not be argued or so weak that it would be an abuse to seek to maintain it.
33 In the second case, Winky Pop Pty Ltd v Hobsons Bay CC [2008] VCAT 1512 at [7], the Tribunal said:-
7 Although the applicant was ultimately unsuccessful in its application, I do not believe that its case was so weak as to be untenable in fact or law. I endorse the comments of Senior Member Byard in Dennis in relation to this issue. I agree with the applicant that, although I indicated in my reasons that the applicant’s case in relation to its access to material was “disingenuous” to a panel process that it well understood, I certainly did not consider the applicant’s case to be completely unarguable, unreasonable or untenable in a manner that would clearly justify an award of costs having regard to the relative strengths of the arguments put by each party. This was simply a case where both parties raised and carefully articulated a number of matters of fact and law before the Tribunal, and the applicant was ultimately unsuccessful in persuading the Tribunal to support its view.
The parties’ submissions relating to costs
34 In support of Alramon’s application for costs, Mr Oliver placed particular emphasis on the following aspects of what he called ‘the primary and original ground of appeal’ (i.e. that the change of address did not comply with the requirements of clause 12.6 of the Lease):-
(a) We held in our decision that this ground raised only a question of fact, not of law.
(b) Jonamill did not apply for leave for the appeal to extend to the merits.
(c) In these circumstances, Jonamill could only have succeeded on this ‘primary’ ground if it had established either (i) that the Tribunal had applied an incorrect principle of law or (ii) that there was no evidence to support its finding that the letter complied with the clause.
(d) Jonamill did not even attempt to establish either of these propositions.
35 In this context, Mr Oliver argued further that in the final sentence of paragraph [52] of our decision (quoted above at [21]), we gave ‘more than a hint that even if leave had been granted to extend the appeal to the merits, the appellant would still have lost the appeal’.
36 With regard to the two subsidiary grounds of appeal (see [22 – 23] above), Mr Oliver submitted that according to our assessment the first, while ‘not wholly without substance’, was ‘incapable of sustaining the appeal’ and the second was ‘without substance’.
37 For these reasons, Mr Oliver contended that we should characterise the primary ground of the appeal as having ‘no tenable basis in fact or law’ and the appeal as a whole as having ‘very little merit’. In view of the terms of section 88(1A)(c) of the ADT Act (quoted above at [24]) we should therefore conclude that it would be ‘fair’ to award costs of the unsuccessful appeal against Jonamill, the Appellant.
38 In seeking to rebut these arguments, Mr Sneddon relied strongly on the two cases decided by the Victorian Civil and Administrative Tribunal to which we have already referred (see [32 – 33] above). He argued that because Jonamill’s case in this appeal was not ‘unarguable, unreasonable or untenable’ (this being a phrase used in the second of those cases), we should not treat it as falling within section 88(1A)(c).
39 In support of this submission, Mr Sneddon adverted to the fact that in reaching the significant conclusion that the specific question whether the change of address letter complied with clause 12.6 of the Lease (as distinct from the question of what requirements must be satisfied by a notice purportedly given under this clause), we said (at [31]) that ‘we had not been able to locate any cases bearing directly upon it’. In Mr Sneddon’s submission, this was enough of itself to show that the appeal was not ‘unarguable’.
40 In a letter to the Registrar dated 8 December 2009 (i.e., after final submissions on the costs of this appeal had been filed), the solicitors for Jonamill asked the Registrar to draw to our attention the decision of the Tribunal at first instance regarding the costs of the proceedings before it. That decision (Alramon Pty Ltd v Jonamill Pty Ltd (No 2) [2009] NSWADT 302) was delivered on 7 December 2009. In it, the Tribunal concluded that Alramon, although successful at first instance, had failed to demonstrate that Jonamill’s case ‘had no tenable basis in fact or law’ (see the decision at (15)) or that there was any other reason for ruling under section 88(1A) that it would be ‘fair’ to make a costs order.
Our conclusions
41 As we view the matter, an important question of principle on which our decision on this application depends is the degree of weight that we should attribute to the two decisions in VCAT on which Mr Sneddon placed reliance.
42 For two reasons, we believe that we should not treat these decisions as controlling the interpretation of section 88(1A)(c), for the purposes of these proceedings, to such an extent that this subparagraph should only be considered applicable if Jonamill’s case in the appeal could properly be characterised as ‘unarguable, unreasonable or untenable’.
43 The first reason is that to apply the subparagraph in this way is to ignore that part of its wording that refers to ‘the relative strengths of the claims made by each of the parties’. The subparagraph refers to ‘a claim that has no tenable basis in fact or law’ only by way of exemplifying cases in which there is a very great disparity between these ‘relative strengths’.
44 Secondly, to take this approach would involve ignoring the authorities (cited above at [26 – 30]) establishing that under section 88 in its previous form costs were more readily awarded when either (a) the case arose in the Retail Leases Division or (b) costs were being sought against an unsuccessful appellant. The present proceedings fall into both these categories.
45 We would not regard Jonamill’s case in this appeal as ‘unarguable, unreasonable or untenable’. But in the manner in which it was framed, it encountered a formidable obstacle at the outset: namely, that we had to be persuaded that the Tribunal’s ruling regarding compliance with notice requirements by the change of address letter was wholly one of law. Given that this would involve deciding whether a particular communication satisfied a test involving, among other things, the concept of ‘reasonableness’, this was obviously an uphill task. It was not enough for Jonamill merely to show that, as indeed we actually decided, this ruling by the Tribunal involved two questions, of which one was a question of law.
46 We attribute considerable weight to Mr Oliver’s argument, summarised above at [34], that once Jonamill failed on this initial point it was left, as indeed it effectively acknowledged, with no sustainable grounds on which to challenge the Tribunal’s ruling.
47 In the light of these considerations, and taking into account also our preference for Mr Oliver’s contentions regarding the two subsidiary grounds of the appeal, we conclude as follows. Having regard to both the substantial disparity between the relative strengths of the parties’ claims and ‘the nature of the proceedings’ (i.e., that it is an unsuccessful appeal from a decision in the Retail Leases Division), as is required of us by section 88(1A)(c) and (d), it is in all the circumstances ‘fair’ that the unsuccessful Appellant should pay the Respondent’s costs.
48 There is no contradiction between this conclusion and the order made at first instance that each party should pay its own costs (see [40] above). The Tribunal pointed out in Meriton Properties Pty Ltd v DCM Leases-Five Pty Ltd (No 2) [2010] NSWADT 11 at [34] that ‘in decisions under section 88 as it stood before the 2008 amendments, the Tribunal showed itself to be more willing to award costs in appeal proceedings (notably against an unsuccessful appellant) than against the losing party at first instance’. Furthermore, the matters with which the Tribunal dealt in the proceedings at first instance were significantly wider in scope than those canvassed in our decision in the appeal.
49 We order that Jonamill pay Alramon’s costs of the appeal, as agreed or as assessed under the Legal Profession Act 2004.
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