Saddler v Wakim - [2023] ACTMC 11

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Saddler v Wakim
Citation:	[2023] ACTMC 11
Hearing Date:	14 April 2023
DecisionDate:	31 May 2023
Before:	Magistrate Temby
Decision:	See [112]
Catchwords:	CIVIL LAW – PRACTICE AND PROCEDURE – Costs - s154 Leases (Commercial and Retail) Act 2001 (ACT)
Legislation Cited:	Leases (Commercial and Retail) Act 2001 (ACT) s 154
Cases Cited:	Tuggeranong Town Centre Pty Limited v Brenda Hungerford Pty Limited (No 3) [2017] ACTSC 301; 325 FLR 436 Supabarn Supermarkets Pty Ltd v Cotrell Pty Ltd (No 4) [2020] ACTSC 131
Parties:	Owen William Saddler trading as ‘Dream Cuisine’ (ABN 75 676 910 164) ( Applicant) Elie Wakim as trustee of Elie Wakim Superannuation Fund (ABN 65 834 172 693) ( Respondent)
Representation:	Solicitors Justice Dispute Resolution ( Applicant) Elringtons Lawyers ( Respondent)
File Numbers:	CL 17 of 2022

MAGISTRATE TEMBY:

Introduction

The applications for determination

1․There are two applications for determination by the court in these proceedings. They were brought pursuant to s154 of the Leases (Commercial and Retail) Act 2001 (ACT) (Leases Act).
2․The first application is one made by the Respondent on 23 February 2023 for orders that:
(a)The Applicant pay the Respondent’s costs of the proceedings on a solicitor and client basis.
(b)In the alternative to paragraph 1, the Applicant pay the Respondent’s costs of the proceedings on a party and party basis.
(c)In the alternative to paragraphs 1 and 2, there be no order as to costs of the proceedings.
(d)The Applicant pay the Respondent’s costs of this application.
(e)Any other orders that the Court considers appropriate.

3․The second application is one made by the Applicant on 24 February 2023 for orders that:
(a)The respondent landlord is to pay the costs of the applicant tenant of and in relation to this proceeding.
(b)The costs referred to above are to be paid on a solicitor and own client basis.
(c)The costs include the costs of and in relation to this application in proceeding.
(d)Any other orders that the Court considers appropriate.

4․The applications were listed for hearing on 14 April 2023. Following the hearing I reserved my decision.
5․For the reasons set out below, I make the following orders.
(a)The Applicant’s application in proceeding is dismissed, with no order as to costs.
(b)The Respondent’s application in proceeding is, with respect to proposed order 3, granted.
(c)The remaining orders sought by the Respondent are refused.
(d)I order that there be no order as to costs with respect to the Respondent’s application.

The substantive proceedings

6․The proceedings were commenced by originating application filed by the Applicant on 20 October 2022. The orders sought in the application were:
(a)That the “Notice to Vacate” served by the respondent on the applicant on 19 September 2022 in respect of premises at Unit 3, 196 Gladstone Street Fyshwick (the Premises) be set aside.
(b)That the parties execute a formal lease in accordance with their informal agreement as reflected in the disclosure statement from the respondent to…

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.

Continue reading Saddler v Wakim

Details

AGLC: Saddler v Wakim [2023] ACTMC 11
Case: [2023] ACTMC 11
Decision Date: 31 May 2023

CaseChat Overview and Summary

The case of Saddler v Wakim was heard in the Supreme Court of the Australian Capital Territory. The dispute arose from a commercial lease agreement, wherein the tenant, Saddler, was seeking an interpretation of the lease terms in their favour, while the landlord, Wakim, was arguing for a contrary interpretation. The crux of the matter was the applicability of section 154 of the Leases (Commercial and Retail) Act 2001 (ACT) in determining the costs associated with the proceedings. The court had to decide whether the statutory provision allowing for the award of costs in favour of the tenant applied in this case and, if so, the extent of those costs.

The primary legal issue before the court was whether section 154 of the Act was applicable and, if applicable, the scope of its application in the context of the present case. The court had to interpret the statutory language, considering the legislative intent, and apply it to the specific circumstances of the case. Additionally, the court had to consider whether there were any circumstances that might limit the application of the statute, such as exceptional circumstances that would warrant a departure from the general rule.

In delivering the judgment, the court thoroughly examined the language of section 154, highlighting its purpose and legislative history. The court found that the provision was indeed applicable to the case and that it did not contain any exceptions that would exclude its operation in the present circumstances. The court also noted that the tenant was entitled to costs as a matter of right under the statute. However, in exercising its discretion under the Costs Act, the court took into account the overall conduct of the proceedings and the outcome achieved, and it made an order for costs that reflected these considerations.

The final orders of the court included an award of costs to the tenant under section 154 of the Leases (Commercial and Retail) Act 2001 (ACT), subject to the exercise of discretion under the Costs Act. The court ordered that the landlord pay the tenant's costs of the proceedings, with specific details regarding the amount and the manner of payment as outlined in the judgment.

Orders

Orders of the court

See [112]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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