Zouk v Lyons Road Pty Limited (No 3)
[2011] NSWADT 252
•04 November 2011
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 143Category: 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 three month rent free period so that the applicant could obtain the relevant development consent and fit out the premises. During the fit-out period, the applicant found that the premises were contaminated with asbestos and also contained dampness due to water penetration. At the expiry of the three month rent free period, the applicant refused to pay rent until the problem in relation to the premises was rectified. The respondent threatened to terminate the lease and recover possession of the premises if the applicant continued to fail to pay the rent;
(b) on 28 June 2005, the Tribunal found that the respondent was not entitled to terminate the lease: see Zouk v Lyons Road Pty Ltd [2005] NSWADT 143. However, it would appear that the issues surrounding the alleged contamination of the premises remained unresolved until sometime around 8 September 2006. This was the date on which the applicant commenced trading from the premises. This was 94 weeks after the date provided in the lease. Consequently, the applicant's claim was for re-imbursement of expenses and damages in the form of loss of profit for the period during which she could not trade;
(c) the applicant's claim was heard on 10, 11, 12 and 13 May 2010. The only matter in issue at the hearing was the amount of loss and damage arising from the 94 week delay in the applicant being able to commence trading from the premises; and
(d) on 7 December 2010, in the principal decision, I found that the applicant's net loss of profit in the 94 week delay was $135,743.00: see at [57]. I also found, at [80], that the applicant was entitled to recover expenses in the amount of $5,019.62. Orders were subsequently made in accordance with these findings.
Relevant legislation and legal principles
The Tribunal has jurisdiction to make cost orders in regard to a retail lease claim and an unconscionable conduct claim: see section 77A of the Retail Leases Act 1994 (RL Act) and section 88 of the Administrative Decisions Tribunal Act 1997 (ADT Act).
Section 88 of the ADT Act provides as follows:
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.
(2) The Tribunal may:
(a) determine by whom and to what extent costs are to be paid, and
(b) order costs to be assessed on a basis set out in Division 11 of Part 3.2 of the Legal Profession Act 2004 or on any other basis.
(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) In this section, "costs" includes:
(a) costs of or incidental to proceedings in the Tribunal, and
(b) the costs of or incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application.
As can be seen from the terms of section 88 of the ADT Act it contains a general rule that each party to the proceedings is to bear its own costs of the proceedings and that an award of costs will only be made if the Tribunal is satisfied, having regard to the factors set out in subsection 88(1A), it is fair to make an award of costs: see AT v Commissioner of Police, NSW [2010] NSWCA 131, per Basten JA at [21] and [33]. In AT, at [21], Basten JA said the following in regard to the Tribunal's exercise of its discretion under subsection 88(1A):
21 .. [in] its term, s 88(1A) requires that the Tribunal (which includes for this purpose the Appeal Panel) be "satisfied" that the proposed award is "fair". That exercise involves, potentially, both findings of primary fact and the exercise of an evaluative judgment. ...
At [33] Basten JA stated the following after citing the general principle set out in subsection 88(1) that each party should bear its own costs:
33 ... [although] an order varying the general rule may be made "only if" the relevant criterion is satisfied in a particular way, there is a relatively low hurdle for an applicant seeking an order. The criterion of "fairness" will take into account the compensatory purpose of an award of costs, which will generally favour the successful party . The circumstances in which fairness may be identified are indicated by the specific attributes listed in sub-s (1A), but subject to the generality of paragraph (e), read in its context. Other considerations will no doubt include the nature of the jurisdiction of the Tribunal which is invoked and the objects identified in s 3(b)-(g) of the Tribunal Act . (emphasis added)
AT's appeal, to the Court of Appeal, arose from an application AT had made to the Tribunal seeking review of conduct by the respondent that AT alleged to have been in breach of an information protection principle under the Privacy and Personal Information Act 1998 (NSW). These were proceedings in the Tribunal's review jurisdiction (see section 38 of the ADT Act) and the respondent was a State agency. As a State agency, the respondent was required to act as a model litigant and at [32], Basten JA said that this was a relevant factor to be taken into account for the purpose of making an order under section 88 of the ADT Act.
The applicant in these proceedings brought his claim under the Tribunal's original jurisdiction (see section 37 of the ADT Act) and they are commercial in nature. The Tribunal has accepted that the general principles enunciated by Basten JA in AT equally apply to proceedings within the Tribunal's original jurisdiction: see Profilio v Coogee Bay Village Pty Ltd (No. 4) [2011] NSWADT 64 at [42]. Accordingly, it is accepted that the commercial nature of the proceeding may be a factor relevant to the circumstances in which fairness may be identified through the specific matters set out in subsection 88(1A) of the ADT Act.
However, as pointed out by the Tribunal in Profilio this does not mean that where the case advanced by the unsuccessful party is weak, the successful party is automatically entitled to an award of costs under subsection 88(1A), in particular paragraph 88(1A)(c). In this regard the Tribunal in Profilio , at [42] and [43], cited with approval two decisions of the Victorian Civil and Administrative Tribunal in regard to the equivalent provision of the Victorian Civil and Administrative Tribunal Act 1998 (Vic) (i.e. section 109).
In the first of these decisions, Denis Corporation Pty Ltd v Casey CC (Red Dot) [208] VCAT 691, the Victorian Tribunal said at [14] to [16]:
14 The relative strength of the claims appear to refer to the strength of claims of one party compared to the strength of the claims of another. A difficult, doubtful or test case might be necessary to clarify the legal position of the parties. It is probably seldom that an order for costs would be made having regard to this consideration alone where there was a real issue to be tried and real justification for the claims made on either side. I take it that it is generally where there is a very weak case for one side, or none at all, that this consideration is likely to lead to an order for costs. I note that the wording says that the absence of a "tenable basis in law or fact" is a consideration included within the consideration of the relative strength of claims of the parties.
15 This certainly cannot mean that an unsuccessful party should be required to pay costs because, at the end of the case, that party's claim had been found to be untenable in fact or law to the extent that they were not upheld and were not successful. That would amount to "costs following the event". It would compromise the general rule created in s 109(1) [the Victorian equivalent to s 88(1) of the ADT Act].
16 As I have said, I did not think that the consideration indicates an order for costs where there are strong cases on either side, or perhaps even the balanced cases on either side.
At [49], in Profilio , the Tribunal also made reference to the possibility of a partial award of costs being justified where the case advanced by the successful party did not succeed on all grounds before it and a significant proportion of the parties' costs were incurred in the course of dealing with the ground or grounds that failed. In such circumstances, the Tribunal said that it may be said that the successful party was responsible for prolonging unreasonably the time taken to complete the proceedings within the meaning of paragraph 88(1)(A)(b) of the ADT Act.
At [51] to [57], in Profilio , the Tribunal dealt with the issue of a party having unreasonably rejected an offer to compromise the proceedings, which turns out to be more favourable to that party than the terms of the orders subsequently made by the Tribunal. In this regard the Tribunal cited the decision in De Costi Seafoods (Franchises) Pty Ltd v Broadway Shopping Centre Sydney Pty Ltd [2011] NSWADT 40, where the Tribunal, at [64] said:
The underlying proposition is that the unreasonable rejection by the losing party of an offer to bring the proceedings to an end without further costs being incurred should always be brought into consideration when determining a costs application. However, the specific principles that was stated and applied by the Court in Calderbank should not be applied mechanically to applications made to the Tribunal under section 88 of the ADT Act. They should operate by analogy only. The reason for this is simple. The line of authority stemming from Calderbank governs cost awards in jurisdiction where, prima facie, costs 'follow the event'. Under section 88, the starting point is that the parties pay their own costs, and the Tribunal should only make a costs order where it is 'fair' to do so.
I note that the policy underlying offers of compromise and Calderbank offers is a public and a private interest in encouraging offers of compromise so that litigation can be disposed of promptly and economically: see South Eastern Sydney Area Health Service v King [2006] NSWCA 2 at [83]. As a consequence, courts have accepted that an offeree's failure to accept an offer of compromise may warrant a departure from the ordinary rule that the successful party be awarded costs on a party-party basis and award the successful party costs on an indemnity basis from the time the offer was made. Accordingly, in proceedings before a court, offeree's who unreasonably refuse to accept an offer that was genuinely made and there was sufficient time for the offeree to consider the offer runs the risk of having an indemnity cost order made against him/her.
As I have mentioned, there is no general rule that costs follow the event in proceedings before the Tribunal. The general rule is that each party pays its own costs. However, an award of costs under subsection 88(1A) of the ADT Act is a departure from this general rule. That departure is based on the Tribunal being satisfied that it is 'fair' to make an award of costs having regard to the matters in subsection 88(1A). Each of the factors prescribed in subsection 88(1A) are matter where one party acts in a manner that causes another party to the proceedings to incur unnecessary costs. Consistent with the thrust of the factors in paragraphs 88(1A)(a) to (e) and the policy that underlies offers of compromise, the Tribunal has accepted that a party to proceedings who makes an offer of compromise to the other party to the proceedings and the other party unreasonably fails to accept the offer this is a matter which is relevant under paragraph 88(1A)(e). That is, an offer of compromise may warrant a departure from the general rule that each party pay its own costs.
In deciding whether a rejection of an offer of compromise amounts to circumstances in which the Tribunal is satisfied that it is 'fair' to make an award of costs, the Tribunal has adopted the same principle the courts have applied to awards of indemnity costs. As I have indicated, this principle being that an award for costs will not be made unless the party seeking costs establishes that it was unreasonable for the offeree not to accept the offer: see Herning v GWS Machinery Pty Ltd (No 2) NSWCA 375 at [4]. In this regard an applicant for indemnity costs must establish that (a) their offer was a genuine offer of compromise and (b) the offeree was provided with an appropriate opportunity to consider and deal with the offer (including relevant material).
Applicant's application for costs
The Applicant's case - In support of her application for costs, the applicant tendered into evidence a letter, dated 5 August 2008, from her solicitor to the respondent's solicitor. The letter was an offer to compromise the applicant's claim on the basis of the principles in Calderbank v Calderbank [1975] 2 All ER 33 and Messiter v Hutchinson (1987) 10 NSWLR 525. The letter set out the basis of the applicant's claim, namely that it was a claim arising from a breach of the terms of the lease agreement between the parties. The letter identified the terms of the lease that had been breached and went on to say that damages for breach of contract was the only available remedy to his client. The letter then set out the following lost profits, out-of-pocket expenses and other costs that had been incurred by the applicant:
1.Lost profit for 94 weeks at $1,989.51 per week $187,014.00
2.Express disbursements, reports and the like $ 23,427.16
3.Express disbursements re expert's
accountant's report $ 3,300.00
4.Legal costs and disbursements exclusive of
GST $ 50,000.00
Total $ 263,741.16
The applicant's offer of compromise was a sum of $95,000.00 for loss of profit, express disbursements of $25,000.00 and costs as agreed or assessed. The offer was open for 28 days and the letter expressly stated that if the offer was not accepted within this period the applicant's solicitor had received instructions to produce the letter on any issues of costs at a final hearing and that the applicant would rely on the offer as a basis to seek indemnity cost.
In oral submissions, Mr Evans, counsel for the applicant, contended that the litigation initiated by the applicant in 2005 was straight forward in that the applicant was unable to trade from the premises because of contamination and water penetration. He said once the applicant was able to commence trading from the premises, the only matter that remained in issue was the amount of damages that the applicant had suffered as a result of not being able to trade from the premises for a period of 94 weeks.
Mr Evans said that at no time did the respondent endeavour to settle the proceedings. Instead, the respondent took every point it possibly could which resulted in the proceedings becoming very protracted, causing the applicant to incur unnecessary costs. In this regard, Mr Evans referred to the respondent's unsuccessful attempt to join the Owners of the Strata Plan as a party to the proceedings: see Lyons Road Pty Ltd v Owners of Strata Plan No 38722 [2007] NSWADT 163. This application he said was at all times unmeritorious. Mr Evans also pointed to the fact that it was not until July 2009 that the respondent conceded liability in regard to the applicant's claim. The other matter raised by Mr Evans was the evidence of the respondent's expert, Dr Ferrier. This evidence he said raised a new and 'novel concept' of 'cannibalisation', which was not accepted by the Tribunal, but required the applicant to file and serve another expert report. He also asserted that the evidence of Dr Ferrier unnecessarily lengthened the hearing of the applicant's claim.
However, the applicant primarily relied on the August 2008 offer of compromise, which Mr Evans argued had been unreasonably rejected by the respondent. This, the applicant contended was sufficient for the Tribunal to be satisfied that it was fair to make an award for costs (on an indemnity basis) in favour of the applicant for the entire proceedings. I was informed that the applicant's costs were substantial, in the vicinity of $170,000 for legal costs and an additional $100,000 for disbursements.
The Respondent's case It was the respondent's contention that the proceedings were 'standard proceedings'. That is, they were proceedings where the only issue was about damages and the onus was on the applicant to prove her damages. In this regard, Mr Sirtes SC, counsel for the respondent, argued that the damages claimed by the applicant had been reduced to a not insubstantial sum. He also argued that Dr Ferrier had not introduced any novel forensic accounting principles and the fact that the Tribunal had not accepted his overall opinion was not indicative of the respondent having acted in such a way that was not fair and justified an award of costs. He argued that none of the criteria set out in subsection 88(1A) of the ADT Act applied to this application. The litigation he said had been hard fought but this of its own did not justify the making of a costs order under section 88 of the ADT Act.
Consideration - These proceedings have been very protracted. However, I am not able to find that the respondent's conduct alone has contributed to the delays in having this application listed for hearing. While the proceedings commenced in 2005, the issues concerning contamination of and water penetration to the premises were not resolved until September 2006. This was the date on which the applicant commenced trading from the premises. While the premises were by then fit for the use intended by the parties at the time they entered the lease, there was clearly an issue as to who was ultimately liable for the contamination and water penetration. It was on this basis that the respondent commenced proceedings, in the Tribunal, against the Owners of Strata Plan No 38722: see Lyons Road Pty Ltd at [7]. These proceedings were commenced in 2007 not that long after the applicant had commenced trading. In my view it cannot be said that the respondent's claim against the Owners of Strata Plan No 38722 was unmeritorious. That claim was not determined on its merits. It was determined on the basis of the Tribunal having no jurisdiction to hear and determine that claim. Having regard to the reasons for decision in Lyons Road Pty Ltd , it cannot be said that the issue of jurisdiction was unarguable.
While the decision of the Tribunal in regard to these proceedings was published in July 2007, it would appear that the applicant's claim progressed very slowly for more than a year. However, no complaint has been made by either party in regard to this period.
There is no question that the amount the Tribunal ordered the respondent to pay to the applicant exceeds the amount contained in the applicant's August 2008 offer of compromise. However, as I have indicated, this fact alone is not sufficient to be satisfied that it is 'fair' to make an award of costs in favour of the applicant, let alone an award of costs on an indemnity basis.
I accept that the overall amount and the terms of the applicant's offer was a genuine offer of compromise in that the amount for which the applicant offered to settle her claim as compared to the orders ultimately made by the Tribunal was real and not trivial or contemptuous.
I also accept that the time given to the respondent to consider the offer was reasonable. However, the applicant has not persuaded me that it was unreasonable for the respondent to refuse the offer she had made. While I agree the applicant set out clearly the basis of her claim, I have not been provided with any material, other than that contained in the letter, from which the respondent could have verified the amounts that were claimed. This is particularly so in regard to the alleged loss of profit for the 94 weeks the applicant had been unable to trade. In this regard I note that the affidavit of the applicant's expert accountant, Mr Draybi was not filed and served until after the expiry the applicant's offer (i.e. 28 days after 5 August 2008).
It was not until 26 September 2008, that the applicant filed and served the affidavit of Mr Draybi. Mr Draybi assessed the applicant's loss of profit for the 94 week period as being $173,900.00. His assessment was based on the actual sales and costs of the applicant's business that was operated from the Lyons road shop in the years ended 30 June 2007 and 30 June 2008. Attached to Mr Draybi's affidavit were the relevant trading and profit and loss statements for the years in question. Had this material been provided to the respondent at the time the August 2008 offer was made, I may have come to a different conclusion.
While I am not persuaded that the applicant's offer of compromise is a sufficient basis on which to be satisfied that it is fair to make an award of costs in favour of the applicant, I am persuaded that from July 2009, when liability was no longer an issue between the parties that the applicant's claim was a very strong one. There was no dispute about the period during which the applicant had been unable to trade and the applicant was able to point to a history of trading from the premises. I accept that the manner in which the applicant had structured her business, which traded, or had traded from more than one leased shop was not straight forward. Of particular significance was the applicant's business that traded from premises at Strathfield Plaza: see at [9] to [12] and [45] of the principal decision. Nevertheless, Mr Draybi's calculations were ultimately accepted as being the basis on which the applicant's loss of profit was to be made. Where the experts differed was in regard to the adjustments that needed to be made.
The respondent's expert report of Dr Ferrier was filed on 5 February 2010. In that report, Dr Ferrier calculated the loss of profits suffered by the applicant as being $42,000.00. The most substantial adjustment made by Dr Ferrier was in regard to the 'avoided Strathfield Profit Reduction': see at [20] and [45] to [48] of the principal decision. It was the evidence of Dr Ferrier that, on the basis of the significant drop in the sales figures for the Strathfield shops during the last quarter of 2006 that an adjustment had to be made to the sales of the Lyons Road shop for this period. The essence of Dr Ferrier's evidence was that during this period customers who would have purchased clothing from the applicant's business at Strathfield Plaza had purchased them from the Lyons Road shop. He explained this concept as 'cannibalisation' of customers from an existing shop to the newly opened shop. At the hearing Dr Ferrier remained of the view that an adjustment of $72,000 should be made in regard to that which was attributable to the avoided Strathfield Profit Reduction. At [52] of the principal decision I did not accept that this concept was applicable to applicant's claim.
While I made an adjustment of $10,000 in regard to the 'avoided Strathfield Profit Reduction' I did not base that on the evidence of Dr Ferrier: see at [55] of the principal decision.
On the whole I accepted the evidence of the applicant's expert, Mr Parslow, a chartered accountant. The applicant filed and served Mr Parslow's report in response to Dr Ferrier's report. Mr Parslow in his report calculated the applicant's loss of profit for the 94 weeks to be approximately $138,000: see at [17] of the principal decision.
While Mr Parslow and Dr Ferrier both made some adjustments during the course of the hearing to their conclusions as set out in their respective reports, the essential and most significant difference related to the avoided Strathfield Profit Reduction. Mr Parslow at all times expressed the opinion it was not relevant. Mr Draybi was also of the view that this was not a relevant factor in regard to the applicant's claim. As I have indicated, I agreed with this view.
A substantial amount of the hearing centred on this issue, which in my view was a distraction from that which was largely incontestable. I accept that there were legitimate adjustments raised in the report of Dr Ferrier, however they were of minor significance. As I have said, in my view the applicant's claim was strong. It was based on actual sales and while there were areas, which were contestable, they did not include the issue of 'cannibalisation' as raised by the respondent's expert. As this was central to the respondent's case and it took up a large portion of the hearing, I am satisfied that it is fair to make an award of costs in favour of the applicant in regard to the hearing of her application. However, I am not satisfied that an order for indemnity costs is justified.
I note that pre-trial directions were heard on 7 May 2010. In my view the appropriate order would be for the respondent to pay the applicants costs from this date and thereafter, including the costs of this application.
Respondent's application for costs
In its written submissions, the respondent contended that it is fair to award it its costs in regard to its interlocutory applicant for production of documents by the applicant. This application was heard on 6 July 2009. As I have indicated, the Tribunal published its decision in regard to this issue on 31 July 2009 and the orders it made included an order that the costs of the interlocutory hearing was reserved and were to be determined at the conclusion of the proceedings: see the interlocutory decision at [19].
At [4] of the interlocutory decision the Tribunal states that the respondent had made numerous requests for documents in late 2008 and early 2009. At [6], the Tribunal notes that 4 days prior to the hearing of the interlocutory application the applicant agreed to provide the documents requested, subject to the applicant's costs in locating and copying the documents were met. That agreement however did not include providing documents that pre-dated the 2004 financial year or documents relating to shops operated by the applicant, at Birkenhead, after 20 November 2004.
It is the respondent's contention that 'the Applicants' intransigent refusal to supply documents that were plainly relevant to the dispute (and which their main expert relied upon in his report' forced them to bring the interlocutory application. That is, they were forced to incur costs to which the applicant ultimately 'capitulated' and as a consequence it was fair to make an award for costs in the respondent's favour in regard to the interlocutory proceedings, even if this is no more than the cost of the half-day hearing.
The applicant contended that there was no basis on which to make a cost order. In her written submissions the applicant contended the respondent's request for documents 'oscillated in scope' and as noted in the decision of the Tribunal, at [15], the respondent had sought documents that went back well before the date on which she had entered the lease, namely from the year ending 30 June 2001. These documents the Tribunal held, at [14], were not relevant to the applicant's claim.
The applicant contended that she had also succeeded in the interlocutory application. That is, she succeeded in narrowing the scope of the documents and also in obtaining an order that her costs in producing the requested documents be costs in the cause.
In my view, having regard to the decision of the Tribunal, there were a number of issues for determination. As I understand the orders made by the Tribunal the orders that were made were largely a reflection of what the applicant had agreed to provide. The only additional orders were in regard to the Birkenhead shops for the relevant period. That is the claims of both parties were successful in some respects. On this basis I am not satisfied that the circumstances surrounding this interlocutory application are such that it is fair to make an award of costs in favour of the respondent.
Conclusion and orders
For the reasons set out above the appropriate orders are as follows:
(a) 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.
(b) the respondents application for costs in regard to its interlocutory application is refused.
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Decision last updated: 04 November 2011
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