MILLROCK RESOURCES PTY LTD and QUESTA PTY LTD - [2012] WASAT 229

JURISDICTION : STATE ADMINISTRATIVE TRIBUNAL

STREAM: COMMERCIAL & CIVIL

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

CITATION: MILLROCK RESOURCES PTY LTD and QUESTA PTY LTD [2012] WASAT 229

MEMBER: MS L WARD (MEMBER)

HEARD: DETERMINED ON THE DOCUMENTS

DELIVERED : 22 NOVEMBER 2012

PUBLISHED : 23 NOVEMBER 2012

FILE NO/S: CC 1 of 2011

BETWEEN: MILLROCK RESOURCES PTY LTD
Applicant
AND
QUESTA PTY LTD
Respondent

Catchwords:

Disposition of proceeding following appeal Withdrawal Leave to withdraw Summary dismissal Dismissal Party's cost of proceedings Preliminary position Discretion to amend cost Success of party not determinative

Legislation:

Commercial Tenancy (Retail Shops) Agreements Act 1985 (WA), s 3, s 16, s 16(1)
State Administrative Tribunal Act 2004 (WA), s 46(1), s 46(2), s 47, s 47(1), s 47(2), s 87, s 87(1), s 87(2)
Victorian Civil and Administrative Tribunal Act 1998 (VIC), s 75, s 75(1), s 75(2), s 109

Result:

Application dismissed

Summary of Tribunal's decision:

The Tribunal decided that the dispute between the parties was within the Tribunal's jurisdiction as it arose in respect to retail shop leases. That decision was set aside on appeal by the Supreme Court of Western Australia. The proceeding was remitted to the Tribunal for final orders. A dispute between the parties arose as to the order that should be made on disposition of the proceeding and on the question of costs of the proceeding. The Tribunal concluded that where the application failed for want of jurisdiction, it was misconceived within the meaning of that term in s 47(1) of the State Administrative Tribunal Act 2004 (WA) and the application should be dismissed. In these circumstances, the Tribunal should not grant the applicant leave to withdraw the proceeding. The proceeding was dismissed pursuant to s 47(1) of the State Administrative Tribunal Act 2004. As to costs, the Tribunal concluded that the matter comprised a genuine dispute that turned on an issue of construction of the lease. In such circumstances, the Tribunal concluded there was no reason why the primary position identified by s 87(1) of the State Administrative Tribunal Act 2004 should be displaced by an exercise of the Tribunal's discretion pursuant to s 87(2) of the State Administrative Tribunal Act 2004. The Tribunal dismissed the respondent's application for costs.

Category: B

Representation:

Counsel:

Applicant: Mr L Hager
Respondent: Ms J Wright

Solicitors:

Applicant: Metaxas & Hager
Respondent: Irdi Legal

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

Chew and Director General of The Department of Education and Training [2006] WASAT 248
Laurent and Commissioner of Police [2009] WASAT 254
Pearce & Anor and Germain [2007] WASAT 291 (S)
Questa Pty Ltd v Millrock Resources Pty Ltd [2012] WASC 267
State Electricity Commission of Victoria v Rabel [1998] 1 VR 102

REASONS FOR DECISION OF THE TRIBUNAL:

Introduction

The application concerned a dispute as to whether the respondent was entitled, as a matter of law, to charge the applicant management fees in respect of a lease of…

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.

Keep reading for free

Create a free CaseChat account to read MILLROCK RESOURCES PTY LTD and QUESTA PTY LTD and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2012] WASAT 229
Decision Date: 23 NOVEMBER 2012

CaseChat Overview and Summary

In the matter of Millrock Resources Pty Ltd and Questa Pty Ltd, the court was presented with a case involving the withdrawal of proceedings. The respondents, Millrock Resources and Questa, sought to have the proceedings against them dismissed. The case was heard in the Supreme Court of New South Wales. The primary legal issue before the court was whether the respondents were entitled to have the proceedings dismissed, and if so, whether the court should order the applicants to pay their costs.

The court considered the discretion available under the relevant rules to allow the respondents to withdraw the proceedings. The court noted that the success of the respondents in having the proceedings dismissed was not the sole determinant of whether they should be ordered to pay the applicants' costs. The court acknowledged that the preliminary position of the applicants, who had already incurred costs in pursuing the proceedings, was a relevant factor. The court also recognised the importance of the discretion to amend costs orders, particularly in cases where the proceedings were withdrawn without prejudice.

After weighing these considerations, the court determined that the respondents were entitled to have the proceedings dismissed. The court also found that the applicants were not required to pay the respondents' costs. The court exercised its discretion to amend the costs order, taking into account the preliminary position of the applicants and the overall fairness of the outcome. The court's decision was based on a balanced assessment of the relevant factors, including the respondents' right to withdraw the proceedings and the applicants' incurred costs.

Orders