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Torchia v Swanton (RLD)

Torchia v Swanton (RLD)

Case [2012] NSWADTAP 5 9 February 2012

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Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Torchia v Swanton (RLD) [2012] NSWADTAP 5
Hearing dates: 30 November 2011
Decision date: 09 February 2012
Jurisdiction: Appeal Panel - Internal
Before: M Chesterman, Deputy President
Decision:
1. Order 2 in the Tribunal's decision of 2 August 2011 in these proceedings is affirmed.
2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 working days. The question of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

Catchwords: Retail lease - costs - meaning of 'no order as to costs' - failure to apply for costs at hearing - whether 'fair' to make costs order
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131
Attorney General v World Best Holdings Ltd (2005) 63 NSWLR 537
B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14
Calderbank v Calderbank [1976] Fam 93
Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284
Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191
Chronopoulos v Carossel Pty Ltd (No 2) [2010] NSWADT 236
Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81
Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322
Grygiel v Baine (No 2) [2005] NSWCA 434
Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 4
Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335
Torchia v Swanton [2010] NSWADT 142
Torchia v Swanton, unreported, Administrative Decisions Tribunal, 5 October 2010
Torchia v Swanton (No 2) [2011] NSWADT 185
Vertzayias v King & Ors [2011] NSWCA 215
Wentworth v Wentworth [1999] NSWSC 638
Category: Principal judgment
Parties: Eugene Torchia and Lesley Astill-Torchia (Appellants)
Beverley Swanton and Alistair Swanton (Respondents)
Representation: Counsel
M McCall (Respondents)
S Spring (Agent - Appellants)
Stephen Tester & Associates (Respondents)

File Number(s): 119038
Decision under appeal

Citation:

Torchia v Swanton (No 2) [2011] NSWADT 185

Date of Decision:

2011-08-02 00:00:00

Before:

Retail Leases Division

File Number(s):

105054

decision

Introduction

(M CHESTERMAN (DEPUTY PRESIDENT)): This is an appeal against the second of two orders made in a decision of the Retail Leases Division, bringing to a conclusion proceedings brought by lessees under a lease governed by the Retail Leases Act 1994 ('the RL Act') against the lessors.

The orders made in this decision ( Torchia v Swanton (No 2) [2011] NSWADT 185) were as follows:-

1. I order the respondents to pay the sum of $92,650 to the applicants.

2. No order as to costs.

Because the order appealed against relates to costs, the determination of this appeal involves the exercise of an 'ancillary function',…

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 Torchia v Swanton (RLD)

Details

AGLC: Torchia v Swanton (RLD) [2012] NSWADTAP 5
Case: [2012] NSWADTAP 5
Decision Date: 09 February 2012

CaseChat Overview and Summary

The case of Torchia v Swanton involves a dispute between the landlord and tenant of a retail property, heard in the Administrative Appeals Tribunal and subsequently appealed to the Supreme Court of the Territory. The tenant, Torchia, sought to challenge the tribunal's decision regarding the costs of the proceedings. The tribunal had initially ordered that Swanton, the landlord, was not to pay any costs, but later amended this order to state that there would be no order as to costs. The tenant argued that the landlord should pay the costs of the appeal, claiming it was fair to do so.

The court had to determine the meaning of the phrase 'no order as to costs' and whether it was fair to make a costs order against the landlord, Swanton, despite the landlord's failure to apply for costs at the hearing. The court considered whether the landlord's failure to apply for costs should be taken into account when deciding if it was fair to make a costs order, and if the tribunal had the authority to make such an order under section 76 of the Administrative Decisions Tribunal Act 1997.

The court held that the tribunal's decision to make no order as to costs was fair and that the tribunal had the authority to make such an order. The court found that it was not necessary to consider the landlord's failure to apply for costs at the hearing because the tribunal had already determined that it was fair to make no order as to costs. The court affirmed the tribunal's decision and made an order that there would be no costs order unless a party applied for costs within 21 days, with the opposing party then having a further 21 working days to respond. The question of costs would then be determined on the papers.

Orders

Orders of the court

1. Order 2 in the Tribunal's decision of 2 August 2011 in these proceedings is affirmed.

2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 working days. The question of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.

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

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Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

Torchia v Swanton (RLD) [2012] NSWADTAP 5

Most Recent Citation

Toga Pty Limited v Perpetual Nominees Limited and CFS Managed Property Limited [2012] NSWADT 80

Cases citing this decision · 4 of 4 shown

Fathullah v Varma (RLD)
[2013] NSWADTAP 39 Para 1

…In so concluding, we have taken careful account of the following passage in a case, Torchia v Swanton (RLD) [2012] NSWADTAP 5, to which we drew the parties' attention at the hearing. The relevant passage in the Appeal Panel's reasons is at [113 - 123]:-…
Dover v Lewkovitz (No 2) (RLD)
[2013] NSWADTAP 35 Para 1

…In Torchia v Swanton (RLD) [2012] NSWADTAP 5, the Appeal Panel said at [142]:-…
B and L Linings Pty Ltd v Chief Commissioner of State Revenue (No 7) (RD)
[2013] NSWADTAP 4 Para 1

…Finally, in Torchia v Swanton (RLD) [2012] NSWADTAP 5, which involved an appeal from a decision of the Retail Leases Division, the Appeal Panel said at [142]:-…
Toga Pty Limited v Perpetual Nominees Limited and CFS Managed Property Limited
[2012] NSWADT 80 Para 1

…ecifically followed the principle of fidelity of the bargain in United Group Rail and the requirement of the parties to treat in good faith, cited in Torchia v Swanton (RLD) (2012) (NSW) ADTAP where the background to the case is highlighted [19] as follows:…

View all 4 citing cases →

Cases cited in this decision · 20 of 20 shown

Torchia v Swanton (No. 2)
[2011] NSWADT 185 Para 1

…The orders made in this decision ( Torchia v Swanton (No 2) [2011] NSWADT 185) were as follows:-…
Vertzayias v King
[2011] NSWCA 215 Para 1

…f the second meaning, Mr McCall relied on a passage in the judgment of Giles JA (with whom McFarlan and Whealy JJA agreed) in Vertzayias v King & Ors [2011] NSWCA 215. His Honour was discussing the effect of an order (Order 6) in the terms 'no order as to costs' in circumstances where 'Permanent', a party to the pr…
Profilio v Coogee Bay Village Pty Ltd (No 3)
[2011] NSWADT 4 Para 1

…costs in the Retail Leases Division, as set out by me at paragraphs [32] to [38] of a recent decision ( Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 4) on which Mr Spring placed significant emphasis.…
Chronopoulos v Carossel (No 2) Pty Limited
[2010] NSWADT 236 Para 1

…the substantive decision had been delivered, Mr McCall pointed out that in the case on which Mr Spring relied, Chronopoulos v Carossel Pty Ltd (No 2) [2010] NSWADT 236, an application for costs, with detailed submissions, had in fact been presented to the Tribunal at the substantive hearing. This, he said, was made…
O'Neill v Henry (No 2) (Costs) (RLD)
[2010] NSWADTAP 54 Para 1

…nt to costs in appropriate circumstances.' In a later decision in the same proceedings, not cited by Mr Spring - O'Neill v Henry (No 2) (Costs) (RLD) [2010] NSWADTAP 54 - the Panel had more to say on this matter. It held as follows, at [7 - 11]:-…
Chronopoulos v. Carossel Pty Limited
[2010] NSWADT 191 Para 1

…he Tribunal at the substantive hearing. This, he said, was made clear at paragraph [60] of the substantive decision ( Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191).…
O'Neill v Henry (RLD)
[2010] NSWADTAP 40 Para 1

…ith reference to the Respondents' refusal to attend mediation, Mr Spring cited the following observation by the Appeal Panel in O'Neill v Henry (RLD) [2010] NSWADTAP 40 at [69]: 'We are inclined to the view... that failure to engage in mediation... may be a factor relevant to costs in appropriate circumstances.' In a…
Torchia v Swanton
[2010] NSWADT 142 Para 1

…ngs. An application by the Respondents for their costs, assessed on an indemnity basis, was upheld by the Tribunal on 9 June 2010 ( Torchia v Swanton [2010] NSWADT 142).…
AT v Commissioner of Police
[2010] NSWCA 131 Para 1

…The third decision, AT v Commissioner of Police, NSW [2010] NSWCA 131 involved an appeal from an Appeal Panel of this Tribunal. The only aspect of it mentioned by Mr McCall was an observation by Basten JA (at [24]) to the effect that the fact that no order for costs had been sought or made in the Appeal Panel proce…
B and L Linings Pty Ltd and Anor v Chief Commissioner of State Revenue (No 4) (RD)
[2008] NSWADTAP 14 Para 1

…acts for reward but is not a legal practitioner. It has been held (in B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14) that a costs order under section 88 may include an amount in respect of the fees charged by an agent of this nature. But there has been no decision…
Elite Protective Personnel Pty Ltd v Salmon
[2007] NSWCA 322 Para 1

…t was made and rejected was an offer 'inclusive of costs'. As I pointed out, the judgment of Basten JA in Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 at [143 - 144] made it clear that although it is often difficult for the recipient of such an offer, and indeed for a court or tribunal, to determine…
Campbelltown City Council v Vegan
[2006] NSWCA 284 Para 1

…for a decision has consistently been held to amount to an error of law: see for example Campbelltown City Council v Vegan (2006) 67 NSWLR 372 at 399; [2006] NSWCA 284 at [130].…
Cripps v G & M Dawson Pty Ltd
[2006] NSWCA 81 Para 1

…Mr Spring did not cite any authority bearing directly on this proposition. But the Court of Appeal's decision in Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81, to which he referred in his written submissions, contains a passage which would appear to support it. This passage relates to proceedings originally commen…
Grygiel v Baine (No 2)
[2005] NSWCA 434 Para 1

…The second decision, Grygiel v Baine (No 2) [2005] NSWCA 434, also involved an application by a party (the Claimant) for variation of a costs order previously made. Mr McCall relied on the following passage in the judgment of Basten JA (with whom Mason P and Bryson JA agreed) at [11 - 13]:-…
Attorney General of New South Wales v World Best Holdings Ltd
[2005] NSWCA 261 Para 1

…le conduct'; (b) this conduct 'involved a high level of moral obloquy, to use the words of Spigelman CJ in Attorney General v World Best Holdings Ltd (2005) 63 NSWLR 537 at paragraph 121'; and (c) the Respondents' alleged reasons for failing to comply with the obligation imposed by clause 8 of the Mediation Agreement…
Amalgamated Television Services Pty Ltd v Marsden
[1999] NSWCA 313

…the appellate litigation bears some similarities to that addressed and disapproved very recently in Amalgamated Television Services Pty Ltd v Marsden [1999] NSWCA 313.…
Wentworth v Wentworth
[1999] NSWSC 638

…strative Decisions Tribunal, 5 October 2010 Torchia v Swanton (No 2) [2011] NSWADT 185 Vertzayias v King & Ors [2011] NSWCA 215 Wentworth v Wentworth [1999] NSWSC 638 Category: Principal judgment Parties: Eugene Torchia and Lesley Astill-Torchia (Appellants) Beverley Swanton and Alistair Swanton (Respondents) Repre…
Oshlack v Richmond River Council
[1998] HCA 11

…112 Oshlack v Richmond River Council (1998) 193 CLR 72, on which Charles relied, is not to the contrary. Gaudron and Gummow JJ referred at [91] to "no order as to costs" leaving the costs to lie where they fell, but that did not exclude that where the costs fell was governed by an existing contractual regime. The same may be said of the…
Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors
[1999] NSWCA 335 Para 1

…First, he cited Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335, describing it as a case in which the Court of Appeal was critical of the failure of a party to give notice of an application for costs while the hearing was on foot. In this case, the Court dismissed with brief reasons an ap…
[1964] 81 WN 504
[1964] 81 WN 504

…ssarily means that costs are to lie where they fall; see Re Hodgkinson [1895] 2 Ch 190 followed by Taylor J in Trikas v Rheem (Australia) Pty Limited [1964] 81 WN 504 at 506 and more recently Oshlack v Richmond River Council [1998] 193 CLR 72 at 91 per Gaudron and Gummow JJ describing the effect of such an order in…

Legislation cited in this decision · 3

Administrative Decisions Tribunal Act 1997 (NSW)
76 2 mentions (from Para 1)
Legal Profession Act 2004 (Vic)
1 mention
Retail Leases Act 1994 (NSW)
1 mention (from Para 1)

Medium Neutral Citation:	Torchia v Swanton (RLD) [2012] NSWADTAP 5
Hearing dates:	30 November 2011
Decision date:	09 February 2012
Jurisdiction:	Appeal Panel - Internal
Before:	M Chesterman, Deputy President
Decision:	1. Order 2 in the Tribunal's decision of 2 August 2011 in these proceedings is affirmed. 2. There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the opposing party or parties must file and serve submissions in response within a further 21 working days. The question of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997.
Catchwords:	Retail lease - costs - meaning of 'no order as to costs' - failure to apply for costs at hearing - whether 'fair' to make costs order
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994
Cases Cited:	AT v Commissioner of Police, NSW [2010] NSWCA 131 Attorney General v World Best Holdings Ltd (2005) 63 NSWLR 537 B & L Linings Pty Ltd & Anor v Chief Commissioner of State Revenue (No 4) (RD) [2008] NSWADTAP 14 Calderbank v Calderbank [1976] Fam 93 Campbelltown City Council v Vegan (2006) 67 NSWLR 372; [2006] NSWCA 284 Chronopoulos v Carossel Pty Ltd [2010] NSWADT 191 Chronopoulos v Carossel Pty Ltd (No 2) [2010] NSWADT 236 Cripps v G & M Dawson Pty Ltd [2006] NSWCA 81 Elite Protective Personnel Pty Ltd v Salmon [2007] NSWCA 322 Grygiel v Baine (No 2) [2005] NSWCA 434 Profilio v Coogee Bay Village Pty Ltd (No 4) [2011] NSWADT 4 Timbarra Protection Coalition Inc v Ross Mining Ltd & Ors [1999] NSWCA 335 Torchia v Swanton [2010] NSWADT 142 Torchia v Swanton, unreported, Administrative Decisions Tribunal, 5 October 2010 Torchia v Swanton (No 2) [2011] NSWADT 185 Vertzayias v King & Ors [2011] NSWCA 215 Wentworth v Wentworth [1999] NSWSC 638
Category:	Principal judgment
Parties:	Eugene Torchia and Lesley Astill-Torchia (Appellants) Beverley Swanton and Alistair Swanton (Respondents)
Representation:	Counsel M McCall (Respondents) S Spring (Agent - Appellants) Stephen Tester & Associates (Respondents)
File Number(s):	119038
Decision under appeal	Citation: Torchia v Swanton (No 2) [2011] NSWADT 185 Date of Decision: 2011-08-02 00:00:00 Before: Retail Leases Division File Number(s): 105054