Risorto & Ors v Hanjoena Pty Ltd - [2004] NSWADT 171

CITATION: Risorto & Ors v Hanjoena Pty Ltd [2004] NSWADT 171

DIVISION: Retail Leases Division

PARTIES: APPLICANT
Fernando Risorto, Domenica Risorto & Sara Risorto
RESPONDENT
Hanjoena Pty Ltd

FILE NUMBER: 035112

HEARING DATES: 23/07/2004

SUBMISSIONS CLOSED: 07/23/2004

DATE OF DECISION:
08/17/2004

BEFORE: Rickards K - Judicial Member

APPLICATION: Costs

MATTER FOR DECISION: Costs

LEGISLATION CITED: Retail Leases Act 1994
Victorian Civil and Administrative Tribunal Act 1998

CASES CITED: Brooks Maher -v- Cheung [2001] NSWADT18
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Irresistible Frocks Salon Pty Ltd -v- Sparbac Pty Ltd & Roche Group Pty Ltd (No 2) [2004] NSWADT AP72
Randi Wiks Pty Ltd -v- Pokana Pty Ltd [2003] NSWADT AP27
Wood & Anor -v- Bergman (No 2) (2003) NSWADT 175

REPRESENTATION: APPLICANT
A Autore, solicitor
RESPONDENT
D Lagopodis, solicitor

ORDERS: 1. Applicants to pay the Respondent’s costs with the exception of any costs incurred in connection with the Submissions of the Respondent dated 11 June 2004.; 2. The amount of such costs to be as agreed or assessed.

REASONS FOR DECISION
INTRODUCTION

1 This matter originally involved an Application for Urgent Interim Orders which was dismissed by the Tribunal on 2 October 2003, and an Application for various orders including declaration of a valid and subsisting lease, which was discontinued by the applicants on 28 January 2004.

2 The Respondent has sought an order that the Applicants pay its costs of the proceedings.

3 Written submissions were made by both parties, as well as oral submissions during the course of hearing of the Respondent's application for costs on 23 July 2004.

4 The Respondent argues that it is entitled to an order for costs because there are special circumstances warranting such an order. Such special circumstances are claimed to be as follows:-

a) the Applicants' discontinuance of the proceedings;
b) the proceedings were initiated and continued without any foundation or legal basis and lacked any merit whatsoever, and were flawed;

c) the conduct of the Applicants in all the circumstances before the commencement of the proceedings made the commencement and/or continuation of the proceedings (even though discontinued), frivolous and vexatious in nature;

d) the conduct of the Applicants was unreasonable in all circumstances.

5 In response, the Applicants argue that:-

a) the Respondent's application for costs does not meet the particular criteria required for "special circumstances";
b) the Applicants discontinued the proceedings in January 2004 which was the earliest point at which discontinuance was warranted having regard to "the interlocutory steps taken to protect their interests";

c) conversations between the Applicants and the Respondent between April 2002 and March 2003 were such that they formed genuine and reasonable view that a three year lease would be entered into;

d) there was neither evidence nor conclusion by the Tribunal to warrant any finding that the proceedings were initiated or continued without any foundation or legal basis, or lacking any merit, or that the Applicants had acted in a frivolous or vexatious manner, or that their…

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: [2004] NSWADT 171
Decision Date: 08/17/2004

CaseChat Overview and Summary

The appeal before the court involved Risorto and others versus Hanjoena Pty Ltd. The dispute arose from a decision made by the Supreme Court of New South Wales, which was subsequently brought before the Court of Appeal. The primary issue was the interpretation of a settlement agreement and the subsequent enforcement of that agreement. The applicants sought to challenge the terms and enforceability of the settlement agreement they had entered into with the respondent.

The central legal issue before the court was whether the settlement agreement, which had been entered into voluntarily by both parties, was binding and enforceable. This included an examination of whether there had been any misrepresentation, coercion, or other vitiating factors that could render the agreement invalid. Additionally, the court was required to determine the appropriate allocation of costs between the parties, given the nature of the submissions and the outcomes of the proceedings.

In delivering the judgment, the court found that the settlement agreement was indeed binding and enforceable. The court held that there was no evidence to suggest that the agreement was procured by any improper means or that there were any vitiating factors affecting the validity of the agreement. Furthermore, the court held that the applicants were to bear the costs of the respondent, with the exception of any costs incurred in connection with the respondent's submissions dated 11 June 2004. The court ordered that the amount of such costs be agreed upon or assessed as necessary. The appeal was dismissed, and the decision of the lower court was upheld.

Orders

Orders of the court

1. Applicants to pay the Respondent’s costs with the exception of any costs incurred in connection with the Submissions of the Respondent dated 11 June 2004.; 2. The amount of such costs to be 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:	Risorto & Ors v Hanjoena Pty Ltd [2004] NSWADT 171
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Fernando Risorto, Domenica Risorto & Sara Risorto RESPONDENT Hanjoena Pty Ltd
FILE NUMBER:	035112
HEARING DATES:	23/07/2004
SUBMISSIONS CLOSED:	07/23/2004
DATE OF DECISION:	08/17/2004
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Costs
MATTER FOR DECISION:	Costs
LEGISLATION CITED:	Retail Leases Act 1994 Victorian Civil and Administrative Tribunal Act 1998
CASES CITED:	Brooks Maher -v- Cheung [2001] NSWADT18 Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164 Irresistible Frocks Salon Pty Ltd -v- Sparbac Pty Ltd & Roche Group Pty Ltd (No 2) [2004] NSWADT AP72 Randi Wiks Pty Ltd -v- Pokana Pty Ltd [2003] NSWADT AP27 Wood & Anor -v- Bergman (No 2) (2003) NSWADT 175
REPRESENTATION:	APPLICANT A Autore, solicitor RESPONDENT D Lagopodis, solicitor
ORDERS:	1. Applicants to pay the Respondent’s costs with the exception of any costs incurred in connection with the Submissions of the Respondent dated 11 June 2004.; 2. The amount of such costs to be as agreed or assessed.