Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner Pty Ltd (ACN 109 033 794) (No 2) (RLD)

[2012] NSWADTAP 40

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation:

Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner Pty Ltd (ACN 109 033 794) (No 2) (RLD) [2012] NSWADTAP 40

Hearing dates:

On the papers

Decision date:

18 October 2012

Jurisdiction:

Appeal Panel - Internal

Before:

M Chesterman, Deputy President

Decision:

1. The Appellant is to pay the Respondents' costs of and incidental to the proceedings in the Retail Leases Division in file no. 095135.

2. The Appellant is to pay the Respondents' costs of and incidental to these appellate proceedings (file no. 119043).

Catchwords:

Retail lease - appeal - costs at first instance - costs of the appeal proceedings

Legislation Cited:

Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994

Cases Cited:

Adwell Holdings Pty Ltd v Ull Pty Ltd [2010] NSWADT 166
AT v Commissioner of Police [2010] NSWCA 131
Batiste v Lenin [2002] NSWSC 233
Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) v Valentino Franchise Pty Ltd (ACN 114 469 662) [2011] NSWADT 184
Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3
O'Neill v Henry (No 2) (Costs) (RLD) [2010] NSWADTAP 54
Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) (RLD) [2012] NSWADTAP 22
Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) [2011] NSWADT 143

Category:

Costs

Parties:

Valentino Franchise Pty Ltd (ACN 114 469 662) (Appellant)
Brookfield Multiplex WS Retail Landowner Pty Ltd (ACN 109 033 794) (First Respondent)
AWPF Management No 2 Pty Ltd (ACN 135 365 365) (Second Respondent)

Representation:

Counsel
J Hynes (Respondents)
No appearance (Appellant)
Minter Ellison Lawyers (Respondents)

File Number(s):

119043

 Decision under appeal 

Citation:

Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) [2011] NSWADT 143
Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) v Valentino Franchise Pty Ltd (ACN 114 469 662) [2011] NSWADT 184

Before:

Retail Leases Division

File Number(s):

085095, 095135

decision

Relevant procedural history

1. This decision concerns an application for the costs relating to an Application for Original Decision and to an appeal, both of which have been heard and determined. Because the only issue to be decided is that of costs, the Appeal Panel is constituted by a Deputy President sitting alone, pursuant to section 24A(2)(a) of the Administrative Decisions Tribunal Act 1997 ('the ADT Act').

1. On 8 September 2011, the Appellant, Valentino Franchise Pty Ltd (hereafter 'the Lessee'), instituted these appeal proceedings by filing a Notice of Appeal naming Brookfield Multiplex WS Retail Landowner Pty Ltd and AWPF Management No 2 Pty Ltd (hereafter 'the Lessors') as the Respondents.

1. This Notice indicated that the appeal was brought against two decisions of the Tribunal. In chronological order, these were described as:

(a) The Tribunal's decision that Applicant's [i.e. the Lessee's] claim in proceedings No. 085095 be stayed until the payment of the costs ordered to be paid on 21st March 2011 or further order of the Tribunal.

(b) The Tribunal's decision for the summary disposal of the proceedings, without a hearing upon the grounds of no defence being disclosed, and/or without the Respondent [i.e, the Lessee] being granted leave to amend its defence.

1. Both of these decisions were decisions of the Retail Leases Division. In both of them, the Lessors were successful.

1. The first of them was given ex tempore on 6 April 2011. Subsequently, written reasons were published (Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) [2011] NSWADT 143). The decision related, as the Notice of Appeal stated, to the proceedings in file 085095 (hereafter 'the Valentino claim'). It dealt with a question of costs.

1. The second of them (Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) v Valentino Franchise Pty Ltd (ACN 114 469 662) [2011] NSWADT 184) was given on 2 August 2011. It related to the proceedings in file 095135 ('the Brookfield claim'). In it, the question of costs was reserved.

1. Both the Valentino claim and the Brookfield claim were concerned with a lease between the parties ('the Lease') relating to shop premises in World Square, Sydney. The Lease was governed by the Retail Leases Act 1994 ('the RL Act'). It commenced on 10 November 2005 and had a term of five years. On or about 5 February 2009, however, the Lessee vacated the premises.

1. The Brookfield claim was predominantly for arrears of rent. In the Valentino claim, the Lessee alleged that it had suffered economic loss on account of water penetration and other disturbances to the business that it carried on in the premises. It claimed that by virtue of the Lessors' conduct in regard to these matters, it was entitled to damages for breach of the covenant for quiet enjoyment and to monetary relief under sections 33 and 34 of the RL Act.

1. The Lessee's Notice of Appeal challenged both of the Tribunal decisions. The appeal was heard on 27 March 2012. On 21 June 2012, the Appeal Panel delivered a decision dismissing it (Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) (RLD) [2012] NSWADTAP 22). The account given there of the proceedings in the Valentino claim, the Brookfield claim and the appeal should be read in conjunction with the present decision.

1. Citing O'Neill v Henry (No 2) (Costs) (RLD) [2010] NSWADTAP 54, the Appeal Panel observed at [107] that it had power to determine the costs of first instance proceedings in this case as well as of the appeal itself. It then gave directions relating to the costs of the Brookfield claim and of the appeal proceedings.

1. The Panel directed as follows: (a) there would be no order for costs unless a party filed and served an application for costs, with supporting submissions, within 21 days of the date of its decision; (b) in such event, the opposing party was to file and serve submissions in response within a further 21 days; and (c) any question of costs so raised would then be determined 'on the papers' under section 76 of the ADT Act, unless the Appeal Panel decided that a further hearing is required.

1. On 11 July 2012, the Lessors filed an application, with supporting submissions, for an order that the Lessee pay their costs of and incidental to both the Brookfield claim and the appeal proceedings. On the same day, it sent copies of the application and the submissions to the Lessee, both by email and by prepaid post to an address appearing on the Lessee's letterhead. As this address was implicitly depicted there as a 'principal office' of the Lessee, the posting of these documents constituted service of them on the Lessee under section 138(1)(b) of the ADT Act.

1. As at the date of delivery of this decision, the Lessee has not filed submissions in reply. Since the stipulated time limit of 21 days for it to do so expired as long ago as 1 August 2012, there is now no obstacle to the making of a decision ex parte on the Lessors' application.

Statutory provisions

1. Section 77A is the provision of the RL Act dealing with the costs of Tribunal proceedings brought under the Act. It empowers the Tribunal to award costs under section 88 of the ADT Act.

1. So far as relevant to this appeal, section 88 states:-

88 Costs

(1) Each party to proceedings before the Tribunal is to bear the party's own costs in the proceedings, except as provided by this section.

(1A) 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 is satisfied that it is fair to do so having regard to the following:

(a) whether a party has conducted the proceedings in a way that unnecessarily disadvantaged another party to the proceedings by conduct such as:

(i) failing to comply with an order or direction of the Tribunal without reasonable excuse, or

(ii) failing to comply with this Act, the regulations, the rules of the Tribunal or any relevant provision of the enactment under which the Tribunal has jurisdiction in relation to the proceedings, or

(iii) asking for an adjournment as a result of a failure referred to in subparagraph (i) or (ii), or

(iv) causing an adjournment, or

(v) attempting to deceive another party or the Tribunal, or

(vi) vexatiously conducting the proceedings,

(b) whether a party has been responsible for prolonging unreasonably the time taken to complete the proceedings,

(c) the relative strengths of the claims made by each of the parties, including whether a party has made a claim that has no tenable basis in fact or law,

(d) the nature and complexity of the proceedings,

(e) any other matter that the Tribunal considers relevant.

1. Section 3(c) of the ADT Act (to which reference was made in the Lessors' submissions) states:-

3 Objects of Act

The objects of this Act are as follows:...

(c) to enable proceedings before the Tribunal to be determined in an informal and expeditious manner,...

Approach to determining costs

1. In their written submissions, the Lessors referred to authorities, cited relatively often in recent Tribunal decisions, that serve to establish three propositions about the interpretation and application of section 88(1A) of the ADT Act.

1. These may be stated as follows:-

(1) The criterion established in this subsection is a 'relatively low hurdle for an applicant seeking an order', since 'the criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party': AT v Commissioner of Police [2010] NSWCA 131 at [33].

(2) When proceedings in the Tribunal are commercial in nature, involving two parties who are acting in trade and commerce, one significant effect of the amendment to section 88 introducing the notion of 'fairness' (this took effect on 1 January 2009) is to 'broaden the basis upon which costs might be awarded': Adwell Holdings Pty Ltd v Ull Pty Ltd [2010] NSWADT 166 at [22].

(3) When a 'substantial disparity' is found to have existed between the 'relative strengths' of the parties' cases, the fact that the proceedings constitute an unsuccessful appeal from a decision of the Retail Leases Division reinforces any claim brought by the respondent for the costs of the appeal: Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3 at [47 - 49], applying paragraphs (c) and (d) of section 88(1A).

The costs of the Brookfield claim

1. The Lessors' application for their costs of the proceedings in this claim was based on paragraphs (a)(i), (a)(iii), (a)(iv) and (b) of section 88(1A) of the ADT Act.

1. In relation to paragraph (a)(i) of this subsection, the Lessors relied on failures by the Lessee to file and serve evidence despite being directed by the Tribunal to do so at three separate directions hearings, held on 18 March, 10 June and 8 July 2010. In relation to paragraphs (a)(iii) and (iv), they pointed to a failure by the Lessee to appear at a directions hearing on 9 December 2010 and a failure to appear by an authorised representative at a substantive hearing scheduled to take place on 22 March 2011.

1. The Tribunal's files on the Brookfield and Valentino claims confirm that these defaults by the Lessee took place. No explanation for them has been advanced. The Lessors' claim that they are factors to be taken into account under paragraph (a) of section 88(1A) is well founded.

1. In putting forward their case under paragraph (b) of section 88(1A), the Lessors relied both on these specific defaults by the Lessee and on a broader feature of the Lessee's conduct in relation to the Brookfield and Valentino claims. They argued that the Lessee 'utilised the informal and accessible qualities of the Tribunal for its own purposes, and in particular as a mechanism to delay the inevitable determination' of the Brookfield claim. It followed, they maintained, that the Lessee's conduct in this regard should be regarded as 'an affront to the Tribunal's statutory object of enabling an expeditious determination of proceedings', as set out in section 3(c) of the ADT Act.

1. The Lessee's conduct with regard to these two claims in this matter, as outlined in the Appeal Panel's decision, did significantly delay the disposition of the Brookfield claim. The Lessee, as just stated, failed to appear by an authorised representative at a substantive hearing scheduled to take place on 22 March 2011. This was to be a joint hearing of both claims. If it had gone ahead, it would have constituted the most appropriate and efficient procedure for obtaining decisions on both of them. If both of the parties had been successful in their respective claims for damages, the Tribunal's order could have provided for payment of a single sum by one party to the other.

1. Because of the Lessee's failure to appear at that hearing on 22 March 2011, the Tribunal made an order in the Valentino claim requiring it to pay within 21 days, on account of interim costs, a sum (approximately $10,000) that was very small in comparison to the amount that it was seeking in this claim (approximately $400,000).

1. On 6 April 2011, the Tribunal, having been advised that the Lessee was considering an appeal against this award of interim costs, made an order staying the Valentino claim until the costs had been paid. On the same date, it heard the Brookfield claim. This entailed considering and resolving a legal question that need never have been raised for determination in these proceedings - i.e., whether, having regard to the terms of the lease, the Lessee could raise a defence, based on the matters alleged in the Valentino claim, that would permit an appropriate sum awarded in its favour to be set off against any award for unpaid rent made in favour of the Lessors. The determination of this question required detailed submissions, both at and after the hearing on 6 April 2011, and the writing of a reserved decision by the Tribunal.

1. Having ultimately succeeded both on this specific question and on the Brookfield claim as a whole, the Lessors can legitimately argue that the considerable delay occasioned by these actions of the Lessee should be given significant weight under paragraph (b) of section 88(1A). A further matter supporting this argument is that on account of the Lessee's continuing failure to pay the costs ordered on 22 March 2011, the Tribunal eventually dismissed the Valentino claim. Having instituted this claim as long ago as 9 May 2008, the Lessee, through its conduct during 2011, effectively abandoned it.

1. The Lessors' application for the costs of the Brookfield claim did not include any argument that there was a 'substantial disparity' between the relative strengths of the parties so as to call for an award under paragraph (c) of section 88(1A). Implicitly, however, it relied on the principle, deriving from paragraph (d) and explained in decisions such as Adwell Holdings Pty Ltd v Ull Pty Ltd [2010] NSWADT 166 (cited above at [18]), that in 'commercial' cases such as those decided in the Retail Leases Division, the criterion of 'fairness' is more easily satisfied than in other kinds of case.

1. As it happens, the facts and decision in Adwell provide useful guidance in the present context. In that case, an unsuccessful lessee ('Ull') was ordered to pay all the costs of a lessor ('Adwell'), assessed on a party-party basis, on the ground that this was 'fair' by virtue of the factors listed in paragraphs (a), (b) and (d) of section 88(1A). The following paragraphs of the decision contain the Tribunal's reasons:-

7 The matter had a lengthy background. In January 2006, Adwell Holdings Pty Ltd ("Adwell") sought to recover from Ull Pty Ltd ("Ull") the sum of $4,089.98 being an amount alleged to be due for outgoings for the years ended 30 June 2003 to 2005 by Statement of Claim in the Local Court. In February 2006, Ull defended the matter and sought that it be transferred to this Tribunal. The transfer occurred in March 2006 and became proceedings number 065045.

8 In August 2006, Ull commenced proceedings (in effect, a cross application) in what became matter number 065130 which alleged that Adwell had engaged in unconscionable conduct.

9 Ull was unsuccessful in its application; Adwell was successful as to part of its claim.

10 Adwell now seeks an order that Ull pay its costs; Ull resists and contends for an order that each party pay its own costs...

12 Adverting to s.88(1A)(a), Adwell asserted that Ull failed to comply with directions of the Tribunal and acted in a manner that delayed the conduct of the proceedings and that disadvantaged Adwell by both the delay and increasing Adwell's costs. Examples were provided. On one occasion, Adwell applied for mediation and direction were adjourned to facilitate the same. Ull refused to participate in the mediation.

13 Thereafter, Ull failed to comply with directions of the Tribunal, necessitating at least 6 adjournments of directions' hearings.

14 A preliminary hearing was listed in relation to the sufficiency of particulars of Ull's claim for unconscionability. Ull was directed to (inter alia) provide full particulars and evidence of its claim; it was almost 3 months late in doing so.

15 There were 2 occasions on which Ull failed to comply with other directions although no adjournment was necessitated.

16 After the conclusion of the hearing, Ull sent further (unsolicited) material to the Tribunal in support of its application, necessitating a brief hearing as to whether the hearing should be re-opened. (It was not re-opened although certain further submissions were allowed and they were filed 2 months after the time directed by the Tribunal).

17 There were other instances of delay and confusion as to when documents were filed or served by Ull.

18 Adwell also contended that a consideration of the relative strengths of the respective claims reveals that its claim for outgoings was strong whereas Ull's claim for unconscionable conduct was weak. The claim for outgoings was not the subject of any real challenge... On the other hand, although Ull's claim was not found to be wholly without merit, the Tribunal's findings were such that the foundation upon which unconscionability was said to rest was weak.

19 Adwell also addressed the question of the nature and complexity of the proceedings. Of its claim, little needs to be said. Adwell sought payment of outgoings; the sum was readily identifiable and ascertainable; it was not complex. Ull's claim was more complex. It required examination of the not insignificant factual matrix which gave rise to the claim and application of the relevant principles. Notwithstanding, I do not consider that this ground alone is determinative in the present case of the question of costs.

20 Ull's submissions on the question of costs were lengthy. It argued that the proceedings had been conducted in a manner that was not uncommon in the Tribunal, meaning that there had been a number of directions hearings and interlocutory steps.

21 It contended that the unconscionable conduct claim was arguable and that the primary position as to costs should not be disturbed...

24 s.88(1A)(a) has two limbs: the Tribunal has to be satisfied that it is fair to award costs having regard to whether a party has conducted the proceedings in a way that unnecessarily disadvantages another party to the proceedings. In the present case, the Tribunal accepts that Ull failed to comply with a number of the orders or directions of the Tribunal and did so without reasonable excuse and that as a result, adjournments were requested and granted. It must be accepted that litigation is attended by many difficulties and unexpected problems which impact upon a party's ability to conform to a timetable. In the course of a commercial matter, it might not be unusual to find that each party suffers one or more such disturbances in its preparation. One step a party can take to avoid criticism of its conduct of the proceedings is to seek to have the matter relisted to explain the need for further time, or to prepare affidavit evidence as to the reason for delay.

25 However in this case, Ull repeatedly failed to meet timetables for the provision of particulars and for filing and serving evidence and did so without explanation.

26 The Tribunal accepts that this must have occasioned disadvantage to Adwell at least by reason of unnecessary appearances and correspondence, both of which must have implications as to cost. The Tribunal considers that this was an unnecessary disadvantage and that it is fair that Adwell be able to recover its costs.

27 Ull's non-compliance with directions also had a consequential effect on the unnecessary prolongation of the proceedings. A matter that started in early 2006 was not concluded until 2009. It is worthy of note that the period from August 2006 until May 2007 was occupied by the Tribunal making successive timetables for the filing and service of evidence. This period should and could have been considerably shorter but for the delays occasioned by the conduct of Ull.

28 As to the relative strengths of the cases argued, the Tribunal has found that Adwell's claim for outgoings (although less than the amount for which it originally contended) was successful and relatively straightforward and unchallenged. Ull's unsuccessful application occupied the majority of the hearing time yet was by far the weaker case to be prosecuted. In this instance, the Tribunal is not persuaded that a consideration of the merits of the cases should be accorded much weight in the costs debate but nevertheless is a factor to be considered.

29 Finally, the Tribunal observes that both parties are commercial entities, both were represented and both had experience in retail lease agreements and negotiations.

1. It is only in a broad sense that these aspects of the proceedings in Adwell may be said to 'resemble' comparable features of the Brookfield claim. There are significant differences: for instance, the number of occasions on which Ull failed to comply with directions or appear at hearings was significantly greater than the number of such defaults by the Lessee in the present case, and Ull, in contrast to the Lessee, had legal representation.

1. This decision in Ull usefully demonstrates, however, that an order to pay all the costs of a successful party may be appropriate, at least in the Retail Leases Division, by virtue only of conduct by the unsuccessful party such as is described in paragraphs (a) and (b) of section 88(1A).

1. The Appeal Panel is satisfied, by virtue of these considerations, that it is 'fair' to order the Lessee to pay, on a party-party basis, the Lessors' costs of and incidental to the Brookfield claim.

The costs of the appeal proceedings

1. It will be recalled that the appeal proceedings comprised appeals by the Lessee against the decisions of the Tribunal in both the Valentino claim and the Brookfield claim.

1. In their submissions supporting their application for the costs of these appeal proceedings, the Lessors argued that the grounds of appeal advanced by the Lessee 'were largely hopeless and in many respects lacked a basis at law'.

1. The Lessors' application was accordingly based primarily on paragraph (c) of section 88(1A) of the ADT Act. Their submissions, however, referred to three specific matters falling within other paragraphs of this subsection. These were: the Lessee's failure to attend a directions hearing on 18 October 2011, thereby causing an adjournment (paragraph (a)(iv)); its failure, without reasonable excuse, to comply with a direction given on 13 December 2011 to file and serve an outline of submissions before the hearing (paragraph (a)(i)); and the fact that these were proceedings by way of appeal from decisions of the Retail Leases Division (paragraph (d), as applied in Jonamill Pty Ltd v Alramon Pty Ltd (No 2) (RLD) [2010] NSWADTAP 3: see [18] above).

1. In its appeal, the Lessee challenged the Tribunal's decision in the Valentino claim ('the Valentino decision') on one ground and its decision in the Brookfield claim ('the Brookfield decision') on eight grounds. An examination of the reasons given by the Appeal Panel (Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) (RLD) [2012] NSWADTAP 22) for rejecting all of these grounds broadly supports the Lessors' submission that they 'were largely hopeless and in many respects lacked a basis at law'.

1. In dismissing the appeal against the Valentino decision, the Appeal Panel held in fact that leave should not be granted for it to proceed because (a) the Notice of Appeal relating to it had been filed some three to four months late and (b) it was lacking in merit: see the Panel's decision (Valentino Franchise Pty Ltd (ACN 114 469 662) v Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) (RLD) [2012] NSWADTAP 22) at [36 - 43].

1. In relation to all but one (i.e. Ground 5) of the eight grounds of appeal against the Brookfield decision, the Appeal Panel used language (for example, 'this argument clearly fails') indicating that it considered them to be very weak. The relevant paragraphs in the Panel's decision are as follows: [63] (Ground 1); [65] (Ground 2); [71] (Ground 3); 74 (Ground 4); [95 - 96] (Ground 6); [100] (Ground 7) and [102 - 103] (Ground 8).

1. In Ground 5, the Lessee maintained that the Tribunal had erred in rejecting an argument that the water penetration and other disturbances of which it had complained would, if proved, have entitled it under section 36 of the RL Act to claim an abatement of the amount of unpaid rent owing to the Lessors. Although the Lessee did not initially make this argument in the Valentino claim, it did do so in submissions filed after the hearing of the Brookfield claim. (An allegation to the contrary in the Lessors' submissions supporting their application for the costs of the appeal proceedings is incorrect.)

1. In Ground 5 of the appeal, the Lessee claimed that the Tribunal's rejection of this argument was incorrect in three respects (these are summarised by the Panel at [76]). The Panel came to the view that, for reasons explained at [77 - 90], there was merit in this claim. But it concluded that the Tribunal's decision not to take any account of the argument based on section 36 when resolving the Brookfield claim was justifiable. The reason given by the Tribunal (see Brookfield Multiplex WS Retail Landowner (ACN 109 033 794) and AWPF Management No 2 Pty Ltd (ACN 135 365 365) v Valentino Franchise Pty Ltd (ACN 114 469 662) [2011] NSWADT 184 at [25]) was that it regarded the Valentino claim - which at the time of its decision was still on foot - as the proper location for this argument to be dealt with, along with the Lessee's other arguments based on sections 33 and 34 and on the Lessors' covenant for quiet enjoyment.

1. At [91 - 92], the Appeal Panel endorsed this reasoning of the Tribunal. It added that the Tribunal in fact stayed the operation of its decision in the Brookfield claim for 30 days in order to give time for the Lessee to pay the costs owing in the Valentino claim and reinstate this claim. It added further that the Lessee did not take up this opportunity.

1. For these reasons, it could not be said that Ground 5 of the appeal lacked merit or was 'untenable', so as to fall within the scope of paragraph (c) of section 88(1A) of the ADT Act. But this description is entirely appropriate for each of the other eight grounds of appeal. Considered in conjunction with those aspects of the appeal (see [34] above) that fall within the scope of paragraphs (a)(i), (a)(iv) and (d) of subsection (1A), this is sufficient to compel the conclusion that it is 'fair' to award to the Lessors their costs of the appeal proceedings.

1. The Lessee must therefore pay, on a party-party basis, the Lessors' costs of the appeal proceedings.

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Decision last updated: 18 October 2012