Nakhle v Karmanchuk (No 2) - [2007] NSWADT 141

CITATION: Nakhle v Karmanchuk (No 2) [2007] NSWADT 141

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Melissa Nakhle
RESPONDENT
Zoya Karmanchuk

FILE NUMBER: 065092

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 5 February 2007

DATE OF DECISION:
26 June 2007

BEFORE: Fox R - Judicial Member

CATCHWORDS: Costs

MATTER FOR DECISION: Costs

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

CASES CITED: Alessa Pty Limited v Total and Universal Pty Limited [2001] NSWADT 150
Cripps & Another v G & M Dawson Pty Limited [2006] NSWCA 81
Cripps and Anor v G. & M. Dawson Pty Limited and Anor (2006) NSW CA 81
Hoctor v Scheib [2001] NSWADT 100)
North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17
Prasad and Walker v Fairfield City Council [2002] NSWADTAP 2
Sotripoulos v Mattana Coiffure Pty Limited (No. 2) NSWADTAP 43

REPRESENTATION:
APPLICANT
W Carney, Barrister
RESPONDENT
G Penhall, Solicitor

ORDERS: Respondent to pay Applicant’s costs, on a party/party basis, of preparing for and appearing at the Application for Urgent Interim Relief on 27 June 2006.

REASONS FOR DECISION

1 In response to my invitation, both parties have made submissions claiming costs pursuant to special circumstances in their favour.

2 It seems appropriate to again state that, although this Division considers special circumstances differently to other Divisions, because of the commercial nature of the matters usually in issue, it does not mean that costs follow the event:- Alessa Pty Limited v Total and Universal Pty Limited [2001] NSWADT 150.

3 It also seems appropriate to restate Section 88(1) of the Administrative Decisions Tribunal Act 1997:- ”The Tribunal may award costs in relation to proceedings before it but only if it is satisfied that there are special circumstances warranting an award of costs.”

4 In many of the decided cases this has resulted in an analysis of the conduct of the parties at the hearing, costs often being awarded against a party whose conduct has had a seriously unfair impact on the other. It is clear that serious unfairness is not a test which applies in all circumstances, but it is still a very useful guide:- see Sotripoulos v Mattana Coiffure Pty Limited (No. 2) NSWADTAP 43 and Cripps and Anor v G. & M. Dawson Pty Limited and Anor (2006) NSW CA 81.

5 Mr Carney submitted on behalf of the Applicant that the evidence of both the Supreme Court proceedings (which technically was evidence before me) and the further evidence brought in this Tribunal made it clear (at least immediately before the commencement of the hearing), that there had been no unauthorised transfer of the possession of the premises and proposed that that fact raised special circumstances. I disagree. Whilst it is clear that persisting in an almost unsupportable case will amount to special circumstances (see North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17, and Hoctor v Scheib [2001] NSWADT 100) that does not apply…

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: [2007] NSWADT 141
Decision Date: 26 June 2007

CaseChat Overview and Summary

In the matter of Nakhle v Karmanchuk (No 2), the parties involved were the applicant, Nakhle, and the respondent, Karmanchuk. The dispute pertained to the assessment of costs incurred in the context of an application for urgent interim relief that took place on 27 June 2006. The matter was heard and determined in the Federal Court of Australia.

The central legal issue before the court was whether the respondent should be ordered to pay the applicant's costs associated with preparing for and appearing at the aforementioned application for urgent interim relief. The applicant argued that the costs incurred were necessary and reasonable given the urgency and complexity of the interim relief application. The respondent contested this, asserting that the costs were excessive or that there were other grounds on which the applicant was not entitled to recover them.

The court, after considering the arguments presented by both parties, concluded that the costs incurred by the applicant were indeed necessary and reasonable. It found that the respondent was liable to pay the applicant's costs on a party/party basis. The court reasoned that the urgency and complexity of the interim relief application justified the expenditure, and there were no valid grounds to deny the applicant's entitlement to recover these costs.

The court's decision mandated that the respondent was to pay the applicant's costs, on a party/party basis, of preparing for and appearing at the Application for Urgent Interim Relief on 27 June 2006. This order was intended to ensure that the applicant could recover the reasonable costs associated with the urgent legal proceedings.

Orders

Orders of the court

Respondent to pay Applicant's costs, on a party/party basis, of preparing for and appearing at the Application for Urgent Interim Relief on 27 June 2006.

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:	Nakhle v Karmanchuk (No 2) [2007] NSWADT 141
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Melissa Nakhle RESPONDENT Zoya Karmanchuk
FILE NUMBER:	065092
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	5 February 2007
DATE OF DECISION:	26 June 2007
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Alessa Pty Limited v Total and Universal Pty Limited [2001] NSWADT 150 Cripps & Another v G & M Dawson Pty Limited [2006] NSWCA 81 Cripps and Anor v G. & M. Dawson Pty Limited and Anor (2006) NSW CA 81 Hoctor v Scheib [2001] NSWADT 100) North Eastern Travelstops Pty Limited v Bradley and Ors (No. 2) [2005] NSWADTAP 17 Prasad and Walker v Fairfield City Council [2002] NSWADTAP 2 Sotripoulos v Mattana Coiffure Pty Limited (No. 2) NSWADTAP 43
REPRESENTATION:	APPLICANT W Carney, Barrister RESPONDENT G Penhall, Solicitor
ORDERS:	Respondent to pay Applicant’s costs, on a party/party basis, of preparing for and appearing at the Application for Urgent Interim Relief on 27 June 2006.