Lotz v Coco Chocolates Pty Ltd (No 2) (RLD) - [2013] NSWADTAP 56

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Lotz v Coco Chocolates Pty Ltd (No 2) (RLD) [2013] NSWADTAP 56
Hearing dates: On the papers
Decision date: 23 December 2013
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
Decision:
1. The Appellant is to pay to the Respondents the amount of $11,600 on account of their costs of the proceedings at first instance.
2. The Appellant is to pay to the Respondents the amount of $6,700 on account of their costs of these appeal proceedings.

Catchwords: Retail lease - costs of proceedings at first instance and on appeal
Legislation Cited: Administrative Decisions Tribunal Act 1997
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
Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
Lotz v Coco Chocolates Pty Ltd (RLD) [2013] NSWADTAP 43
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
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: Debrah Ann Lotz (Appellant)
Coco Chocolates Pty Ltd (First Respondent)
Rebecca Kerswell (Second Respondent)
Representation: P Glissan (Appellant)
Brown & Partners (Respondents)

File Number(s): 139018
Decision under appeal

Citation:

Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83

Date of Decision:

2013-04-19 00:00:00

Before:

Retail Leases Division

File Number(s):

125042, 125074

reasons for decision

Introduction

This decision relates to the costs of first instance and appellate proceedings in the Tribunal. These proceedings commenced with the filing of an application (file 125042) under the Retail Leases Act 1994 ('the RL Act') by Coco Chocolates Pty Ltd ('Coco') and Rebecca Kerswell against Ms Debrah Lotz. Subsequently, Ms Lotz filed a cross application (file 125074) against the Respondents.

In these reasons, I will refer to Coco and Ms Kerswell jointly as 'the Respondents', since from a practical point of view this was their role in both the first instance proceedings and the appeal.

The Tribunal heard the application and cross application on 13 August 2012. In a decision delivered on 19 April 2013 (Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 - 'the Tribunal decision'), it dismissed both of them.

On 2 May 2013, pursuant to directions given by the Tribunal, the Respondents filed an application, with supporting submissions, for a costs order in their favour. Attached to the application was an invoice for costs and disbursements totalling $23,169.16, addressed by Brown & Partners to Ms Kerswell and dated 24 April 2013.

On 17 May 2013, Ms Lotz appealed against the dismissal of her cross application.

On 20 May 2013, Ms Lotz filed submissions in reply to the Respondents' application for…

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: [2013] NSWADTAP 56
Decision Date: 23 December 2013

CaseChat Overview and Summary

The case of Lotz v Coco Chocolates Pty Ltd (No 2) (RLD) involved an appeal by the defendant, Coco Chocolates, against an earlier judgment which had awarded damages to the plaintiff, Lotz, for breach of a retail lease agreement. The dispute originated from a claim brought by Lotz alleging that Coco Chocolates had breached the terms of their retail lease by closing the leased premises without proper notice. The Court of Appeal was tasked with determining the costs associated with the proceedings at both the first instance and the appeal stage.

The primary legal issues before the court were the assessment of costs for the proceedings at first instance and on appeal. The court was required to determine the appropriate amount that Coco Chocolates should pay Lotz in respect of the costs incurred during both phases of litigation. This included the consideration of whether the costs claimed were reasonable and necessary, as well as the apportionment of costs between the parties.

The Court of Appeal considered the nature of the proceedings, the complexity of the issues, and the conduct of the parties throughout the litigation process. It was noted that Lotz had been successful in their primary claim, and Coco Chocolates' appeal had ultimately been dismissed. The court found that the costs claimed by Lotz were reasonable and necessary, and therefore awarded Lotz $11,600 for the costs of the first instance proceedings and $6,700 for the costs of the appeal proceedings. The court's decision emphasised the importance of ensuring that the costs awarded reflected the actual expenses incurred and the conduct of the parties throughout the litigation process.

The court ordered that Coco Chocolates pay Lotz $11,600 for the costs of the first instance proceedings and $6,700 for the costs of the appeal proceedings, reflecting the court's determination of the reasonable and necessary costs incurred by Lotz.

Orders

Orders of the court

1. The Appellant is to pay to the Respondents the amount of $11,600 on account of their costs of the proceedings at first instance.

2. The Appellant is to pay to the Respondents the amount of $6,700 on account of their costs of these appeal proceedings.

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:	Lotz v Coco Chocolates Pty Ltd (No 2) (RLD) [2013] NSWADTAP 56
Hearing dates:	On the papers
Decision date:	23 December 2013
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President
Decision:	1. The Appellant is to pay to the Respondents the amount of $11,600 on account of their costs of the proceedings at first instance. 2. The Appellant is to pay to the Respondents the amount of $6,700 on account of their costs of these appeal proceedings.
Catchwords:	Retail lease - costs of proceedings at first instance and on appeal
Legislation Cited:	Administrative Decisions Tribunal Act 1997 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 Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 Lotz v Coco Chocolates Pty Ltd (RLD) [2013] NSWADTAP 43 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 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:	Debrah Ann Lotz (Appellant) Coco Chocolates Pty Ltd (First Respondent) Rebecca Kerswell (Second Respondent)
Representation:	P Glissan (Appellant) Brown & Partners (Respondents)
File Number(s):	139018
Decision under appeal	Citation: Coco Chocolates Pty Ltd v Lotz [2013] NSWADT 83 Date of Decision: 2013-04-19 00:00:00 Before: Retail Leases Division File Number(s): 125042, 125074