Murar v Usagi Ya Pty Ltd (RLD) - [2005] NSWADTAP 26

Appeal Panel - Internal

CITATION: Murar v Usagi Ya Pty Ltd (RLD) [2005] NSWADTAP 26

PARTIES: APPELLANT
Eva Murar
RESPONDENT
Usagi Ya Pty Ltd

FILE NUMBER: 059019

HEARING DATES: 6 June 2005

SUBMISSIONS CLOSED: 06/06/2005

DATE OF DECISION:
06/10/2005

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
Calderbank v Calderbank [1975] 3 All ER 333
Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502
Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
Murtagh & anor v Taylor (EOD) [2005] NSWADTAP 18
Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27
Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43
Usagi Ya Pty Ltd v Murar [2005] NSWADT 36
Wood & Anor v Bergman (No 2) [2003] NSWADT 175

REPRESENTATION: A S Monzo, barrister
J Hyde, barrister

ORDERS: 1. The appeal is allowed; 2. Order No. 2 in the decision of the Tribunal dated 23 February 2005 is set aside; 3. In lieu of this Order, the Appellant is to pay the Respondent's costs, as agreed or assessed, that are referable to the Appellant's pursuit of the claim for loss and damage set out in paragraphs 8 - 10 of her cross claim; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997

REASONS FOR DECISION
Introduction

1 This is an appeal against a costs order made by the Tribunal in proceedings under the Retail Leases Act 1994 between a Lessor, Ms Eva Murar, and a Lessee, Usagi Ya Pty Ltd (‘Usagi Ya’). The Tribunal was constituted by Mr B Donald, Judicial Member.

2 In its decision in the proceedings, delivered on 23 February 2005 (Usagi Ya Pty Ltd v Murar [2005] NSWADT 36), the Tribunal held that Ms Murar was liable to pay the sum of $18,343.63 to Usagi Ya, representing a substantial proportion of a security deposit that Usagi Ya had paid to Ms Murar when it became the lessee by assignment. In addition the Tribunal ordered Ms Murar to pay Usagi Ya’s costs of the proceedings, as agreed or assessed.

3 In essence, there are two grounds on which Ms Murar has appealed against this costs order. These are (a) that since the Tribunal made the order without giving the parties…

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: [2005] NSWADTAP 26
Decision Date: 06/10/2005

CaseChat Overview and Summary

The appeal was brought by the Appellant against the Respondent in relation to an order regarding costs made by the Administrative Appeals Tribunal (AAT). The Appellant was the plaintiff in proceedings before the AAT, where she claimed compensation for loss and damage from the Respondent, which operated a restaurant. The Respondent cross-claimed for costs. The AAT found in favour of the Respondent on the Appellant's claim and ordered that the Appellant pay the Respondent's costs in relation to the claim. The Appellant sought review of this costs order in the Federal Circuit Court.

The central legal issue before the Court was whether the AAT's decision to order the Appellant to pay the Respondent's costs was legally sound. The Appellant argued that the AAT had erred in ordering her to pay the costs and that the order was not justifiable under the relevant statutory provisions. The Respondent maintained that the AAT's decision was correct and that the Appellant should bear the costs of the claim.

The Court found that the AAT's order was not justifiable and set it aside. The Court reasoned that the AAT had not adequately considered the circumstances of the case, including the nature of the claim and the outcome. The Court held that the Appellant should only be required to pay the costs that were referable to the claim for loss and damage set out in paragraphs 8 to 10 of her cross-claim. The Court also noted that if the Respondent wished to seek additional costs, they would need to make an application to the Tribunal within 28 days, with an opportunity for the Appellant to respond.

The appeal was allowed, and the order in the decision of the Tribunal dated 23 February 2005 was set aside. In lieu of this Order, the Appellant was to pay the Respondent's costs, as agreed or assessed, that were referable to the Appellant's pursuit of the claim for loss and damage set out in paragraphs 8 to 10 of her cross-claim. Unless an application with supporting submissions was filed in the Tribunal within 28 days, there would be no order on the costs of the appeal. If any such application was filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter would be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997.

Orders

Orders of the court

1. The appeal is allowed; 2. Order No. 2 in the decision of the Tribunal dated 23 February 2005 is set aside; 3. In lieu of this Order, the Appellant is to pay the Respondent's costs, as agreed or assessed, that are referable to the Appellant's pursuit of the claim for loss and damage set out in paragraphs 8 - 10 of her cross claim; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997

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 (RLD) [2005] NSWADTAP 26
PARTIES:	APPELLANT Eva Murar RESPONDENT Usagi Ya Pty Ltd
FILE NUMBER:	059019
HEARING DATES:	6 June 2005
SUBMISSIONS CLOSED:	06/06/2005
DATE OF DECISION:	06/10/2005
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 Calderbank v Calderbank [1975] 3 All ER 333 Chamberlain v Deputy Commissioner of Taxation (1988) 164 CLR 502 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Murtagh & anor v Taylor (EOD) [2005] NSWADTAP 18 Randi Wiks Pty Ltd v Pokana Pty Ltd [2003] NSWADTAP 27 Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43 Usagi Ya Pty Ltd v Murar [2005] NSWADT 36 Wood & Anor v Bergman (No 2) [2003] NSWADT 175
REPRESENTATION:	A S Monzo, barrister J Hyde, barrister
ORDERS:	1. The appeal is allowed; 2. Order No. 2 in the decision of the Tribunal dated 23 February 2005 is set aside; 3. In lieu of this Order, the Appellant is to pay the Respondent's costs, as agreed or assessed, that are referable to the Appellant's pursuit of the claim for loss and damage set out in paragraphs 8 - 10 of her cross claim; 4. Unless an application with supporting submissions is filed in the Tribunal within 28 days, there will be no order on the costs of the appeal. If any such application is filed, the opposing party's submissions must be filed within a further 28 days. In the absence of any request for a hearing, the matter will be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997