Petria Pty Ltd v Makhoul

Appeal Panel - Internal

CITATION:	Petria Pty Ltd v Makhoul [2005] NSWADTAP 12
PARTIES:	APPELLANT Petria Pty Ltd RESPONDENT Edward Makhoul
FILE NUMBER:	049015
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	02/11/2005
DATE OF DECISION:	03/21/2005
DECISION UNDER APPEAL:	Makhoul v Petria Pty Ltd [2004] NSWADT 51
BEFORE:	Chesterman M - ADCJ (Deputy President); Boyce P - Judicial Member; Weule B - Non Judicial Member
CATCHWORDS:	costs
MATTER FOR DECISION:	Costs
FILE NUMBER UNDER APPEAL:	035146
DATE OF DECISION UNDER APPEAL:	03/10/2004
LEGISLATION CITED:	Anti-Discrimination Act 1977 Retail Leases Act 1994
CASES CITED:	Citadin Pty Ltd (No 2) v Eddie Azzi Australia Pty Ltd & General Pants Co Pty Ltd (RLD) [2001] NSWADTAP 31 Commissioner of Police v Mooney (No 3) (EOD) [2004] NSWADTAP 22 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Irresistible Frocks Salon Pty Ltd v Sparbac Pty Ltd and Roche Group Pty Ltd (No 2) [2004] NSWADT 72 Makhoul v Petria Pty Limited [2004] NSWADT 51 Petria Pty Limited v Makhoul [2004] NSWADTAP 47 Tu v University of Sydney (No 2) (EOD) [2002] NSWADTAP 25
REPRESENTATION:	APPELLANT D L Warren, barrister RESPONDENT T Hall, barrister
ORDERS:	1. This application by the Appellant for the costs of the appeal is dismissed; 2. No order on the costs of this application.

Introduction

1 The issue in this case is whether the Appellant (the respondent at first instance), having succeeded before us in its appeal against a decision of the Tribunal at first instance, is entitled to its costs on the appeal.

2 The Appellant appealed against the decision of the Tribunal, constituted by Judicial Member Fox, in Makhoul v Petria Pty Limited [2004] NSWADT 51. In that decision, the Respondent (the applicant at first instance) was the successful party.

3 The principal order (Order 1) made by the Tribunal was a declaration that the Appellant was obliged to tender to the Respondent a lease. This lease was to be in accordance with an option of renewal contained in an expired registered lease between the Appellant, as lessor, and the Respondent together with two co-lessees. The expired lease was a ‘retail shop lease’ governed by the Retail Leases Act 1994. Order 1 was the primary focus of the appeal.

4 Our decision on the appeal (Petria Pty Limited v Makhoul [2004] NSWADTAP 47) was delivered on 1 November 2004. We ordered that the appeal should be allowed and Order 1 of the Tribunal, together with two accompanying orders, should be set aside. We also gave liberty to both parties to apply within 28 days to argue the costs of the appeal, adding that if no application was made within that time, there would be no order for costs.

5 On 17 November 2004, the Appellant applied for its costs of the appeal. We directed that, in the absence of any objection by a party, the matter of costs should be resolved ‘on the papers’ under s 76 of the Administrative Decisions Tribunal…