Wilson v Sydney Markets Ltd (No 3) - [2010] NSWADT 215

CITATION: Wilson v Sydney Markets Ltd (No 3) [2010] NSWADT 215

DIVISION: General Division

PARTIES:
APPLICANT
William Wilson
RESPONDENT
Sydney Markets Limited

FILE NUMBER: 095163

HEARING DATES: On the papers

SUBMISSIONS CLOSED: 26 November 2010

DATE OF DECISION:
27 August 2010

BEFORE: Fox R - Judicial Member

CATCHWORDS: Costs

LEGISLATION CITED: Retail Leases Act 1994
Administrative Decisions Tribunal Act 1997

CASES CITED: Australian Aqua Air Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 239
Cronulla Newsagency v Pizzata & Ors [2002]NSWADT 202 Trust Company of Australia Ltd v Craig and Ors [2005] NSWADT 65
Sydney Markets Limited v Wilson [2010] NSWADTAP 45

REPRESENTATION:
APPLICANT
D Williams SC
RESPONDENT
R J Carruthers, barrister

ORDERS: Respondent to pay the Applicant’s costs of preparing for and appearing at the:-1.Mediation appointed by the Retail Tenancy Unit, including any application fees and Mediator’s fees paid
2.22nd October 2009 interlocutory hearing.

REASONS FOR DECISION

1 Pursuant to my Orders of 11^th November 2009, in which I gave the parties “leave” to agitate the question of a costs order, on 19^th November 2009 the Applicant filed submissions supported by his affidavit of the same date. The Respondent replied on 26^th November 2009, and those submissions were supported by an affidavit of T J Webster, solicitor for the Respondent, sworn on that day. The matter then unfortunately slipped from view during the course of the hearing and publication of the decision in the appeal. [Sydney Markets Limited v Wilson [2010] NSWADTAP 45]

2 At the end of my 11^th November decision [para39] I indicated a preliminary view that the matter was extremely finely balanced, and that neither party appeared to have “misbehaved” This latter was a reference to the instances set out in s88(1A)(a)(i) & (ii), which give the Tribunal a discretion to award costs

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…

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.

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Details

Case: [2010] NSWADT 215
Decision Date: 27 August 2010

CaseChat Overview and Summary

The case of Wilson v Sydney Markets Ltd (No 3) was heard in the Australian court, where the applicant, Wilson, sought an order for the respondent, Sydney Markets Ltd, to pay certain costs. The dispute arose from a retail tenancy matter, where the parties were required to participate in mediation and an interlocutory hearing. The applicant contended that the respondent should bear the costs associated with these proceedings.

The primary legal issue before the court was whether the respondent was liable for the costs incurred by the applicant in preparing for and appearing at the mediation and interlocutory hearing. The applicant argued that these costs should be borne by the respondent, while the respondent contended that they should not be liable for such expenses. The court was required to determine whether there were any applicable provisions or principles that would justify the imposition of costs on the respondent.

In reaching its decision, the court considered the nature of the proceedings and the conduct of the parties. The court noted that the mediation and interlocutory hearing were part of the mandatory dispute resolution process for retail tenancies. The court found that the respondent's conduct throughout the proceedings was unreasonable and contributed to the escalation of costs. As a result, the court held that the respondent was liable for the costs incurred by the applicant in preparing for and appearing at the mediation and interlocutory hearing.

The court ordered that the respondent, Sydney Markets Ltd, pay the applicant's costs of preparing for and appearing at the mediation and interlocutory hearing. This included any application fees and mediator's fees paid by the applicant. The court's decision emphasised the importance of responsible conduct in legal proceedings and the potential consequences for parties who act unreasonably.

Orders

Orders of the court

Respondent to pay the Applicant’s costs of preparing for and appearing at the:-1.Mediation appointed by the Retail Tenancy Unit, including any application fees and Mediator’s fees paid

2.22nd October 2009 interlocutory hearing.

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

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Wilson v Sydney Markets Ltd (No 3) [2010] NSWADT 215
DIVISION:	General Division
PARTIES:	APPLICANT William Wilson RESPONDENT Sydney Markets Limited
FILE NUMBER:	095163
HEARING DATES:	On the papers
SUBMISSIONS CLOSED:	26 November 2010
DATE OF DECISION:	27 August 2010
BEFORE:	Fox R - Judicial Member
CATCHWORDS:	Costs
LEGISLATION CITED:	Retail Leases Act 1994 Administrative Decisions Tribunal Act 1997
CASES CITED:	Australian Aqua Air Pty Ltd v Chief Commissioner of State Revenue [2009] NSWADT 239 Cronulla Newsagency v Pizzata & Ors [2002]NSWADT 202 Trust Company of Australia Ltd v Craig and Ors [2005] NSWADT 65 Sydney Markets Limited v Wilson [2010] NSWADTAP 45
REPRESENTATION:	APPLICANT D Williams SC RESPONDENT R J Carruthers, barrister
ORDERS:	Respondent to pay the Applicant’s costs of preparing for and appearing at the:-1.Mediation appointed by the Retail Tenancy Unit, including any application fees and Mediator’s fees paid 2.22nd October 2009 interlocutory hearing.