Townsend v Chief Executive, State Rail Authority

CITATION:	Townsend -v- Chief Executive, State Rail Authority [1999] NSWADT 104
DIVISION:	Retail Leases
APPLICANT:	Jeffrey Townsend & Rhonda Townsend
RESPONDENT:	Chief Executive, State Rail Authority
FILE NUMBER:	995009
HEARING DATES:	06/22/1999
SUBMISSIONS CLOSED:	06/25/1999
DATE OF DECISION:	26 October 1999
BEFORE:	K P O'Connor DCJ - President
PRIMARY LEGISLATION:	Retail Leases Act 1994
APPLICATION:	Retail tenancy claim -
MATTER FOR DECISION:	Application for Costs
REPRESENTATION:	Applicant: J Chippindall of counsel instructed by Peter Adams & Co Solicitors Respondent: A Gelbart of counsel
ORDERS:	1. No order as to costs

1 This decision relates to an application for costs made by the respondent following the dismissal of the applicant’s application for an interim order under the Retail Leases Act 1994 (the Act) restraining the respondent from removing the applicant from premises leased from the respondent: see Townsend v Chief Executive, State Rail Authority [1999] NSWADT 56.

2 Prior to 1 March 1999, the jurisdiction conferred by the Act was exercised by the Commercial Tribunal. On 1 March 1999 the jurisdiction was transferred to this Tribunal: Retail Leases Amendment Act 1998 (the Amendment Act), s 3 Schedule 1 [47] to [56], partially commenced 1 March 1999 - see Gov Gaz 26 Feb 1999, p 978.

3 The Commercial Tribunal’s power to award costs was conferred by s 32 of the Commercial Tribunal Act 1984 as follows -

“32 Costs

The Tribunal may make such award as it thinks fit as to by whom, to whom and to what extent costs are to be paid in, or in relation to, proceedings before it.”

4 It was usual in the Commercial Tribunal to follow the ordinary practice of ordering costs in favour of the successful party. For two examples see Jarre Pty Ltd v Vumbacca (unreported, 8 July 1998) and Berry & Hemingway v Peter Nance Pty Ltd (unreported, 20 February 1998).

5 The Amendment Act inserted a new provision into the Act dealing with costs being s 77A which provides:

“77A Tribunal may award costs

The Tribunal may award costs under section 88 of the Administrative Decisions Tribunal Act 1997 in respect of proceedings commenced by an application made under this Part.”

6 Section 88 of the Administrative Decisions Tribunal Act 1997 (the Tribunal Act) is the general provision bearing on this Tribunal’s power to award costs. Section 88 relevantly provides:

“88 Costs

(1) Subject to the rules of the Tribunal and any other Act or law, the Tribunal may award costs in relation to proceedings before it, but only if it satisfied that there are special circumstances warranting an award of costs.

(2) …

(3) However, the Tribunal may not award costs in relation to proceedings for an original decision unless the enactment under which the Tribunal has jurisdiction to make the decision provides for the awarding of costs.

(4) …”

(The jurisdiction exercised by the Retail Leases Division of the Tribunal under the Act involves proceedings for an original decision within the meaning of sub-s (3) above: see s…