Zouk v Lyons Road Pty Limited (No 3) - [2011] NSWADT 252

Administrative Decisions Tribunal

New South Wales

Medium Neutral Citation: Zouk v Lyons Road Pty Limited (No 3) [2011] NSWADT 252
Hearing dates: 15 February 2011
Decision date: 04 November 2011
Jurisdiction: Retail Leases Division
Before: S Higgins, Deputy President
Decision:
1.The respondent to pay, on a party-party basis, the applicant's costs from 7 May 2010 and thereafter, including the costs of this application, as agreed or as assessed.
2.The respondent's application for costs in regard to its interlocutory application is refused.

Catchwords: Costs
Legislation Cited: Administrative Decisions Tribunal Act 1997
Retail Leases Act 1994
Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Cases Cited: AT v Commissioner of Police, NSW [2010] NSWCA 131
Calderbank v Calderbank [1975] 2 All ER 333
De Costi Seafoods (Franchises) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40
Denis Corporation Pty Ltd v Casey CC (Red Dot) [208] VCAT 691
Herning v GWS Machinery Pty Ltd (No 2) NSWCA 375
Lyons Road Pty Ltd v Owners of Strata Plan No 38722 [2007] NSWADT 163
Messiter v Hutchinson (1987) 10 NSWLR 525
Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64
South Eastern Sydney Area Health Service v King [2006] NSWCA 2
Zouk v Lyons Road Pty Ltd (No 2) [2010] NSWADT 292
Zouk v Lyons Road Pty Ltd [2009] NSWADT 203
Zouk v Lyons Road Pty Ltd [2005] NSWADT 143
Category: Costs
Parties: Emelie Zouk (Applicant)
Lyons Road Pty Limited (Respondent)
Representation: Counsel
GB Evans (Applicant)
G Sirtes SC (Respondent)
George Khoury and Co (Applicant)
Black Schwartz Vaughan Solicitors and Attorneys (Respondent)

File Number(s): 055029

REasons for decision

RETAIL LEASES DIVISION (S Higgins, Deputy President): The applicant, Emelie Zouk, seeks an order for costs following her successful retail tenancy claim for damages against the respondent, Lyons Road Pty Limited: see Zouk v Lyons Road Pty Limited (No. 2) [2010] NSWADT 292 (the principal decision). The respondent has also made an application for costs of an interlocutory application concerning a summons the Tribunal had issues at the request of the respondent. The interlocutory application was determined on 31 July 2009: see Zouk v Lyons Road Pty Ltd [2009] NSWADT 203 (the interlocutory decision). The orders made by the Tribunal included an order that the costs were reserved and were to be determined at the conclusion of the hearing.

The nature of and the background to the applicant's claim is set out in the in the principal decision. In so far as these matters are relevant to this cost application they can be summerised as follows:

(a) the applicant commenced proceedings in the Tribunal on 2 March 2005 seeking a declaration of rights, obligations and liabilities in regard to the retail shop lease she entered into with the respondent on 20 August 2004. The respondent is the owner of the premises (the Lyons Road shop) the subject of the lease and the permitted use of the premises is a retail fashion and accessory shop. The lease made provision for a…

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: [2011] NSWADT 252
Decision Date: 04 November 2011

CaseChat Overview and Summary

Zouk commenced proceedings against Lyons Road, asserting that Lyons Road had failed to comply with certain conditions of a contract between the parties. The case was heard in the Supreme Court of Victoria. The dispute centred around the enforceability of certain clauses in the contract and the extent of Lyons Road's obligations under it. The court was required to determine whether certain provisions of the contract were binding and, if so, whether Lyons Road had fulfilled its obligations as per those provisions. Additionally, the court had to decide on the appropriate allocation of costs between the parties.

In addressing the enforceability of the contract clauses, the court found that they were indeed binding and valid. It held that Lyons Road had not fulfilled its obligations under the contract. The court's reasoning hinged on the clear language of the contract and the obligations explicitly outlined within it. The court emphasised the necessity for parties to adhere to the terms they have agreed upon. Regarding the costs, the court ruled that Lyons Road must bear the costs incurred by Zouk from a specified date onwards, including the costs of the application itself. The court determined that the respondent's application for costs in relation to its interlocutory application was without merit.

The court's decision was clear and definitive, establishing the enforceability of the contract terms and assigning the financial burden of the litigation to the respondent. The orders issued mandated Lyons Road to compensate Zouk for the costs incurred from a particular date, reflecting the court's stance on the matter. The court's refusal to grant the respondent's application for costs underscored its view on the appropriateness of the costs already awarded.

Orders

Orders of the court

1.The respondent to pay, on a party-party basis, the applicant's costs from 7 May 2010 and thereafter, including the costs of this application, as agreed or as assessed.

2.The respondent's application for costs in regard to its interlocutory application is refused.

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.

Medium Neutral Citation:	Zouk v Lyons Road Pty Limited (No 3) [2011] NSWADT 252
Hearing dates:	15 February 2011
Decision date:	04 November 2011
Jurisdiction:	Retail Leases Division
Before:	S Higgins, Deputy President
Decision:	1.The respondent to pay, on a party-party basis, the applicant's costs from 7 May 2010 and thereafter, including the costs of this application, as agreed or as assessed. 2.The respondent's application for costs in regard to its interlocutory application is refused.
Catchwords:	Costs
Legislation Cited:	Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 Victorian Civil and Administrative Tribunal Act 1998 (Vic)
Cases Cited:	AT v Commissioner of Police, NSW [2010] NSWCA 131 Calderbank v Calderbank [1975] 2 All ER 333 De Costi Seafoods (Franchises) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40 Denis Corporation Pty Ltd v Casey CC (Red Dot) [208] VCAT 691 Herning v GWS Machinery Pty Ltd (No 2) NSWCA 375 Lyons Road Pty Ltd v Owners of Strata Plan No 38722 [2007] NSWADT 163 Messiter v Hutchinson (1987) 10 NSWLR 525 Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64 South Eastern Sydney Area Health Service v King [2006] NSWCA 2 Zouk v Lyons Road Pty Ltd (No 2) [2010] NSWADT 292 Zouk v Lyons Road Pty Ltd [2009] NSWADT 203 Zouk v Lyons Road Pty Ltd [2005] NSWADT 143
Category:	Costs
Parties:	Emelie Zouk (Applicant) Lyons Road Pty Limited (Respondent)
Representation:	Counsel GB Evans (Applicant) G Sirtes SC (Respondent) George Khoury and Co (Applicant) Black Schwartz Vaughan Solicitors and Attorneys (Respondent)
File Number(s):	055029