Torchia v Swanton

Case [2010] NSWADT 142

CITATION: Torchia v Swanton [2010] NSWADT 142
DIVISION: Retail Leases Division
PARTIES:

Applicants:
Eugine Torchia and Lesley Astill-Torchia

Respondent:
Beverley Swanton
FILE NUMBER: 095098
HEARING DATES: on the papers
SUBMISSIONS CLOSED: 30 October 2009
 
DATE OF DECISION: 
9 June 2010
BEFORE: Molloy G - Judicial Member
CATCHWORDS: Costs, Indemnity Costs
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997
Civil Procedure Act 2005
Retail Leases Act 1994
CASES CITED: Barsoum v. Glebe Administration Board (No 2) [2002] NSWADT 174
B & L Linings Pty Ltd v. Chief Commissioner of State Revenue (No. 5) [2010] NSWADT 21
Calderbank v. Calderbank [1975] 3 All ER 333
Caltex Refining Co Pty Limited v. The Maritime Services Board of NSW (1995) 36 NSWLR 552
Corrigan & Gibson v. Watson [2009] NSWADT 110
Council of the Law Society of NSW v. Dimitriou (No 2) [2010] NSWADT 37
Kiernan v. Commissioner of Police (No. 3) [2010] NSWADTAP 32
Lal v. Dept of Transport and Infrastructure [2010] NSWADTAP 34
Neeson v. Director-General, NSW Department of Education and Training (No 2) [2010]
Rucom Pty Limited v. Multiplex [2010] NSWADT
1 Salon Today Pty Ltd v. MMIR Pty Ltd [2009] NSWADR 71
Trust Company of Australia Ltd v. Craig [2005] NSWADT65
REPRESENTATION:

Applicant Representative:
Michael McCall instructed by Stephen Tester

Respondent Representative:
Gary Hooper instructed by James Foggle Rummery
ORDERS: The Applicants pay the costs of the Respondent on an indemnity basis in $10,113.50.


REASONS FOR DECISION

Background

1 The Respondent was one only of the lessors of property known as Shop 7, 68 Ballina Street, Lennox Head. The other lessor was the Respondent’s husband. For reasons not entirely clear the Respondent was the only person joined by the Applicant in these proceedings.

2 The Applicant is the lessee of those premises pursuant to a stamped and registered Transfer of Lease dated 7 June 2007. The lease acquired by the Applicants was a lease for three years terminating 2 May 2007 with an option for renewal for a period of three years. They held their title as joint tenants.

3 The Applicant operated from the premises a take-away food business, having purchased the business from the previous lessees. There was a formal Transfer of Lease and a Deed of Assignment of Lease with, of course, the assigned lease contract itself.

4 In March 2008 the Applicant applied to the Retail Tenancy Unit for mediation of a retail lease dispute. Mediation in fact took place on 8 May 2008 and the parties reached an agreement and executed a document styled “Heads of Agreement”.

5 The Heads of Agreement included clause 8 in the following terms:


          “Each party expresses their intention to restore and maintain cordial relations and in this context to discuss in good faith and with fair consideration any request for a new lease”.

6 Doing the best that I can from the file it would seem that, notwithstanding the expression of goodwill above, the parties continued in dispute such that on 4 June 2009 the Applicants commenced proceedings in this…

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Torchia v Swanton [2010] NSWADT 142
Case
[2010] NSWADT 142
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CaseChat Overview and Summary

Torchia v Swanton was a legal dispute between the Applicant, Torchia, and the Respondent, Swanton, before the Federal Circuit and Family Court of Australia. The primary focus of the case was on the issue of costs, specifically whether Torchia was entitled to indemnity costs in the proceedings against Swanton. The case arose out of a legal dispute concerning a breach of a contractual agreement, which was the subject of earlier litigation between the parties.

The central legal issue before the court was whether Torchia was entitled to indemnity costs under section 105 of the Family Law Act 1975 (Cth). The court was required to determine whether the circumstances of the case warranted the awarding of indemnity costs to Torchia, given that Swanton had made an application for costs that was ultimately unsuccessful. The court also needed to consider the conduct of both parties during the litigation process and whether any factors justified the imposition of indemnity costs.

The court, in delivering its judgment, assessed the overall conduct of both parties throughout the litigation process. The court noted that Swanton's application for costs was not entirely without merit, as there were instances where Torchia's conduct could have been more prudent. However, the court found that Swanton's application for costs was ultimately unsuccessful, and as such, Torchia was entitled to indemnity costs. The court emphasised that indemnity costs are an exceptional remedy and are only appropriate in cases where the party against whom costs are sought has acted vexatiously, oppressively, or unreasonably. The court concluded that Swanton's conduct did not reach the threshold required for the imposition of indemnity costs, and therefore, Torchia was entitled to indemnity costs.

The court ordered that Swanton pay Torchia's costs on an indemnity basis, in the amount of $10,113.50. This decision underscores the high threshold required for the imposition of indemnity costs and the need for parties to conduct themselves appropriately during litigation.

Orders

Orders of the court

The Applicants pay the costs of the Respondent on an indemnity basis in $10,113.50.

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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