Kapadia Pty Ltd v Trust Company of Australia Ltd

Kapadia Pty Ltd t/as Choice Variety Store (Applicant) sought review of a decision made by Trust Company of Australia Ltd (Stockland) (Respondent) concerning a retail shop lease. The dispute was heard in the Civil and Administrative Tribunal of New South Wales. The Applicant challenged the Respondent’s decision to terminate the lease and sought costs under s 100 of the Civil and Administrative Tribunal Act 2013 (NSW). The Respondent argued that the Applicant’s application for costs should be dismissed and that the Applicant should bear its own costs under s 102(3) of the Act.

The Tribunal considered whether the Applicant, having been wholly unsuccessful in its application, was entitled to costs. The issue involved interpreting the relevant sections of the Act to determine the appropriate exercise of discretion in awarding costs. The Tribunal examined the Applicant’s prima facie entitlement to costs and whether exceptional circumstances warranted an order for the Applicant to bear its own costs.

The Tribunal concluded that, while the Applicant was prima facie entitled to costs under s 100, the exceptional circumstances of the case warranted an order under s 102(3). The Tribunal found that the Applicant's application was meritless and that it had unreasonably refused to accept the Respondent’s offer to mediate. Consequently, the Tribunal ordered that the Respondent provide a short-form assessment of legal costs calculated on the District Court scale from the conclusion of the mediation onward, no later than 18 May 2012. Additionally, the Tribunal ordered the Applicant to bear its own costs.