Murar v Usagi Ya Pty Ltd (No 2) (RLD) - [2005] NSWADTAP 57

Appeal Panel - Internal

CITATION: Murar v Usagi Ya Pty Ltd (No 2) (RLD) [2005] NSWADTAP 57

PARTIES: APPELLANT
Eva Murar
RESPONDENT
Usagi Ya Pty Ltd

FILE NUMBER: 059019

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 09/08/2005

DATE OF DECISION:
11/15/2005

DECISION UNDER APPEAL:
Usagi Ya Pty Ltd v Murar [2005] NSWADT 36

BEFORE: Chesterman M - ADCJ (Deputy President); Molloy GB - Judicial Member; Weule B - Non Judicial Member

CATCHWORDS: costs

MATTER FOR DECISION: Costs

FILE NUMBER UNDER APPEAL: 045025

DATE OF DECISION UNDER APPEAL: 02/23/2005

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

CASES CITED: Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150
Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
North Eastern Travelstops Pty Ltd v Bradley & Ors (RLD) (No 2) [2005] NSWADTAP 17
Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43
Usagi Ya Pty Ltd v Murar [2005] NSWADT 36
Usagi Ya Pty Ltd v Murar (RLD) [2005] NSWADTAP 26
Wood & Anor v Bergman (No 2) [2003] NSWADT 175

REPRESENTATION: APPELLANT
A S Monzo, barrister
RESPONDENT
M Lee, solicitor

ORDERS: 1. The Appellant’s application for costs in relation to the appeal is dismissed; 2. The Appellant is to pay 50% of the Respondent’s costs of the appeal, as agreed or assessed

The subject matter of this decision

1 In this judgment, we deal with two applications for the costs of an appeal heard by us in proceedings under the Retail Leases Act 1994 between a lessor, Ms Eva Murar, and a lessee, Usagi Ya Pty Ltd (‘Usagi Ya’). The proceedings were initially set in train by Usagi Yar, whereupon Ms Murar filed a cross claim.

2 The appeal itself concerned a costs order in Usagi Ya’s favour that had been made by the Tribunal at first instance, constituted by Mr B Donald, Judicial Member.

The Tribunal’s decision

3 In its decision, delivered on 23 February 2005 (Usagi Ya Pty Ltd v Murar [2005] NSWADT 36), the Tribunal resolved the substantive dispute between the parties by holding that Ms Murar was liable to pay the sum of $18,343.63 to Usagi Ya. This sum represented a substantial proportion of a security deposit that Usagi Ya had paid to Ms Murar when it became the lessee by assignment of retail shop premises owned by her.

4 Ms Murar’s cross claim included a claim (‘the fire damage claim’) for compensation for damage to the premises caused by a fire. The Tribunal held this to be a claim without merit, because District Court proceedings brought by Ms Murar against Usagi Ya with respect to this damage had been settled and the matter was clearly res judicata between them. In addition, the Tribunal dismissed most, though not all, of some other claims for damages for breach of the lease that Ms Murar had put forward in her cross claim.

5 These rulings of the Tribunal were not challenged on appeal.

6 In…

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 Murar v Usagi Ya Pty Ltd (No 2) (RLD) 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: [2005] NSWADTAP 57
Decision Date: 11/15/2005

CaseChat Overview and Summary

The case involved Murar, the appellant, and Usagi Ya Pty Ltd, the respondent, before the court. The dispute centred on an application by the appellant for costs related to the appeal. The matter was heard by the court, which needed to determine the legal issues pertaining to the allocation of costs between the parties involved in the appeal process.

The court was required to decide whether the appellant was entitled to the costs associated with the appeal and, if so, to what extent. Additionally, the court needed to assess whether the respondent's costs should be paid in full or partially by the appellant, as agreed or assessed by the court. The legal principles guiding the court's decision involved the assessment of costs in appellate proceedings and the principles of costs following the usual course in civil litigation.

The court dismissed the appellant's application for costs in relation to the appeal. It held that the appellant was not entitled to the costs associated with the appeal. The court found that the appellant should pay 50% of the respondent's costs of the appeal, as agreed or assessed. The reasoning of the court was based on the principles of costs following the usual course in civil litigation, which generally means that the unsuccessful party in the appeal pays the costs of the successful party. The court concluded that the appellant's application for costs was not successful and that it should bear half of the respondent's costs.

Orders

Orders of the court

1. The Appellant’s application for costs in relation to the appeal is dismissed; 2. The Appellant is to pay 50% of the Respondent’s costs of the appeal, as agreed or assessed

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:	Murar v Usagi Ya Pty Ltd (No 2) (RLD) [2005] NSWADTAP 57
PARTIES:	APPELLANT Eva Murar RESPONDENT Usagi Ya Pty Ltd
FILE NUMBER:	059019
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	09/08/2005
DATE OF DECISION:	11/15/2005
DECISION UNDER APPEAL:	Usagi Ya Pty Ltd v Murar [2005] NSWADT 36
BEFORE:	Chesterman M - ADCJ (Deputy President); Molloy GB - Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	045025
DATE OF DECISION UNDER APPEAL:	02/23/2005
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Ltd v Total & Universal Pty Ltd [2001] NSWADT 150 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 North Eastern Travelstops Pty Ltd v Bradley & Ors (RLD) (No 2) [2005] NSWADTAP 17 Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 Usagi Ya Pty Ltd v Murar [2005] NSWADT 36 Usagi Ya Pty Ltd v Murar (RLD) [2005] NSWADTAP 26 Wood & Anor v Bergman (No 2) [2003] NSWADT 175
REPRESENTATION:	APPELLANT A S Monzo, barrister RESPONDENT M Lee, solicitor
ORDERS:	1. The Appellant’s application for costs in relation to the appeal is dismissed; 2. The Appellant is to pay 50% of the Respondent’s costs of the appeal, as agreed or assessed