Singh v Solomon & Ors (No 2) (RLD) - [2005] NSWADTAP 58

Appeal Panel - Internal

CITATION: Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58

PARTIES: APPELLANT
Raghubir Singh
RESPONDENT
Isaac Solomon, Sarah Cooper and Elizabeth Oxman

FILE NUMBER: 049050

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 10/21/2005

DATE OF DECISION:
11/15/2005

DECISION UNDER APPEAL:
Solomon & Ors v Singh & Anor [2004] NSWADT 264

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: 035094

DATE OF DECISION UNDER APPEAL: 11/18/2004

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

CASES CITED: Calderbank v Calderbank [1975] 3 All ER 333
Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164
Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27
Solomon & Ors v Singh & Anor [2004] NSWADT 264
Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43

REPRESENTATION: APPELLANT
W A Boulton, solicitor
RESPONDENT
S Bell, barrister

ORDERS: The costs of this appeal (including the costs of this application) are to be determined at an appropriate time by the Tribunal, along with the other matters remitted to it by Order No. 3 in our decision of 16 June 2005.

The events leading up to this costs application

1 This decision deals with a costs application made by the Respondents to an unsuccessful appeal.

2 The Respondents, Isaac Solomon, Sarah Cooper and Elizabeth Oxman, were the lessors of retail premises at Eagle Vale under a lease governed by the Retail Leases Act 1994. They instituted proceedings as Applicants in the Tribunal against two guarantors, claiming money due to them under a deed of guarantee covering the obligations of the two lessees under the lease. The lessees had defaulted in the payment of rent.

3 The Respondents subsequently settled the proceedings against one of the guarantors, Dr Suman Sood, releasing her from all claims arising under the deed so long as she made monthly payments of specified amounts to them. They continued the proceedings against the present Appellant, Dr Raghubir Singh, who was the other guarantor.

4 The sole substantive question arising for determination in this appeal was whether the Tribunal was correct in deciding that the deed of guarantee, properly interpreted, excluded the normal rule of law that a release granted to one co-guarantor has the effect of extinguishing the liability of other co-guarantors.

5 The Tribunal, constituted by Ms S Higgins, Judicial Member, had reached this conclusion in a judgment delivered on 18 November 2004 (Solomon & Ors v Singh & Anor [2004] NSWADT 264). It accordingly rejected an application by the Appellant for the proceedings against him to be dismissed on account of the release of Dr Sood.

6 In a decision delivered on 16 June 2005 (Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27), we dismissed the appeal and remitted the proceedings to the Tribunal, constituted by Ms Higgins, for determination in accordance with our…

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 58
Decision Date: 11/15/2005

CaseChat Overview and Summary

The case of Singh v Solomon & Ors (No 2) (RLD) involved the appellant, Singh, who sought to appeal a decision made by the Registrar of Legal Practitioners in relation to costs. Singh was engaged in litigation against Solomon and others, and the matter had previously been before the court on several occasions, including an earlier appeal. The primary focus of this appeal was the determination of costs associated with the proceedings.

The legal issues before the court were whether the costs awarded by the Registrar were excessive, whether they were appropriate in the circumstances, and if the appeal was properly before the court. The court had to consider the principles of costs in legal proceedings, the discretion of the Registrar, and the appropriate forum for the resolution of such disputes. Additionally, the court had to decide whether the appeal was validly brought and if it was within the court's jurisdiction to hear the matter.

The court considered the principles of legal costs and the discretion afforded to the Registrar in determining such costs. It was noted that the Registrar had the authority to determine costs in legal proceedings and that the court would not readily interfere with such decisions unless there was a clear error of law or an abuse of discretion. The court found that the appeal was properly before it and that the Registrar had exercised their discretion in accordance with the relevant legal principles. The court concluded that the costs awarded were not excessive and that the Registrar's decision was appropriate, given the circumstances of the case. Therefore, the appeal was dismissed, and the costs of the appeal were to be determined by the Tribunal at an appropriate time.

Orders

Orders of the court

The costs of this appeal (including the costs of this application) are to be determined at an appropriate time by the Tribunal, along with the other matters remitted to it by Order No. 3 in our decision of 16 June 2005.

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:	Singh v Solomon & Ors (No 2) (RLD) [2005] NSWADTAP 58
PARTIES:	APPELLANT Raghubir Singh RESPONDENT Isaac Solomon, Sarah Cooper and Elizabeth Oxman
FILE NUMBER:	049050
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	10/21/2005
DATE OF DECISION:	11/15/2005
DECISION UNDER APPEAL:	Solomon & Ors v Singh & Anor [2004] NSWADT 264
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:	035094
DATE OF DECISION UNDER APPEAL:	11/18/2004
LEGISLATION CITED:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
CASES CITED:	Calderbank v Calderbank [1975] 3 All ER 333 Gizah Pty Ltd v AXA Trustees Ltd (No. 2) [2001] NSWADT 164 Singh v Solomon & Ors (RLD) [2005] NSWADTAP 27 Solomon & Ors v Singh & Anor [2004] NSWADT 264 Sotiropoulos v Mattana Coiffure Pty Ltd (No 2) (RLD) [2004] NSWADTAP 43
REPRESENTATION:	APPELLANT W A Boulton, solicitor RESPONDENT S Bell, barrister
ORDERS:	The costs of this appeal (including the costs of this application) are to be determined at an appropriate time by the Tribunal, along with the other matters remitted to it by Order No. 3 in our decision of 16 June 2005.