Weraberto Pty Ltd v Vicinity Bankstown Pty Ltd

Weraberto Pty Ltd brought proceedings against Vicinity Bankstown Pty Ltd in the Civil and Administrative Tribunal of New South Wales, alleging breaches of a lease agreement and seeking various remedies, including damages. The proceedings were dismissed for want of prosecution, as the applicant had not taken steps to advance the matter for over a year. The applicant then sought an order for indemnity costs against the respondent, arguing that the dismissal was due to the respondent’s failure to respond to a subpoena. The respondent argued that the dismissal was due to the applicant’s own failure to prosecute the case.

The Tribunal had to determine whether the dismissal was due to the respondent's failure to respond to the subpoena, justifying an indemnity costs order, or if the dismissal was due to the applicant’s failure to prosecute the case, in which case the ordinary costs order would apply. The Tribunal examined the conduct of both parties in managing the proceedings and the reasons for the dismissal. It noted that the applicant had not taken steps to advance the case for over a year and that the respondent's failure to respond to the subpoena was not the sole reason for the dismissal.

The Tribunal concluded that the dismissal was primarily due to the applicant's failure to prosecute the case and that the respondent's conduct, while a contributing factor, did not absolve the applicant of responsibility. Therefore, the Tribunal ordered that the applicant must pay the respondent's costs on the ordinary basis, as agreed or assessed, and dispensed with a hearing on costs. The Tribunal did not grant the applicant’s request for an indemnity costs order, finding that the primary responsibility for the dismissal lay with the applicant.