Lituma Pty Limited v Jafari (No 2) [2005] NSWADTAP 60

Appeal Panel - Internal

CITATION: Lituma Pty Limited v Jafari (No 2) [2005] NSWADTAP 60 APPELLANT PARTIES: Lituma Pty Limited RESPONDENT Zahra Jafari FILE NUMBER: 059021 HEARING DATES: Decided on the papers SUBMISSIONS CLOSED: 09/15/2005 DATE OF DECISION: 11/17/2005

Lituma Pty Ltd v Jafari [2005] NSWADT 64 DECISION UNDER APPEAL: BEFORE: Chesterman M - ADCJ (Deputy President); Donald BG - Judicial Member; Weule B - Non Judicial Member CATCHWORDS: costs MATTER FOR DECISION: Costs FILE NUMBER UNDER APPEAL: 055016, 055024 DATE OF DECISION UNDER APPEAL: 03/24/2005 LEGISLATION CITED : Administrative Decisions Tribunal Act 1997 Retail Leases Act 1994 CASES CITED: Lituma Pty Ltd v Jafari [2005] NSWADT 64 Lituma Pty Ltd v Jafari (RLD) [2005] NSWADTAP 37 APPELLANT REPRESENTATION: A Monzo, barrister RESPONDENT F Amirbeaggi, solicitor ORDERS: Respondnet's application for costs of the appeal dismissed

REASONS FOR DECISION The grounds of the Respondent's application for costs 1 This appeal raised a difficult question of interpretation of a Deed of Release entered into between a lessor of retail shop premises, the initial lessee and an assignee of the lease. The lease was governed by the Retail Leases Act 1994. 2 In the appeal, the Appellant lessor, Lituma Pty Ltd, challenged rulings made by the Tribunal, constituted by Ms S Higgins, Judicial Member, by way of determination of preliminary issues. The Tribunal's decision, delivered on 24 March 2005 (Lituma Pty Ltd v Jafari [2005] NSWADT 64), had been in favour of the Respondent assignee, Mrs Zahra Jafari. 3 Our decision, delivered on 21 July 2005 (Lituma Pty Ltd v Jafari (RLD) [2005] NSWADTAP 37), was that the appeal should be dismissed and, subject to one variation of substance, the orders made by the Tribunal should stand. 4 We ordered also as follows. Unless an application with supporting submissions was filed in the Tribunal within 28 days, there would be no order on the costs of the appeal. If any such application was filed, the opposing party's submissions were to be filed within a further 28 days. In the absence of any request for a hearing, the matter would be determined 'on the papers', under s 76 of the Administrative Decisions Tribunal Act 1997 ('the ADT Act'). 5 On 18 August 2005, the Respondent filed an application, with supporting submissions, for the costs of the appeal. 6 In these submissions, it was pointed out that the evidence tendered and submissions made by the Respondent in the appeal did not differ substantially, if at all, from those put before the Tribunal at first instance. 7 The only ground advanced in support of the application for costs was that, 'as a consequence of' the Appellant's failure in the appeal, the Respondent was 'entitled to look to' the Appellant for payment of her costs of the appeal. Our decision 8 As was argued by the Appellant in its submissions in reply, this claim by the Respondent for her costs took no account of the terms of s 88 of the ADT Act. Section 77A of the Retail Leases Act 1994 makes this section applicable in retail tenancy proceedings conducted in the Tribunal. Under s 88(1) of the ADT Act, the Tribunal may only award costs if 'it is satisfied that there are special circumstances warranting an award of costs'. 9 The Respondent's submissions did not identify any aspects of the appeal proceedings that might constitute 'special circumstances'. It was apparently assumed that in such proceedings costs would simply 'follow the event'. 10 As the Appellant pointed out in its submissions in reply, a recognised category of 'special circumstances' is where an unsuccessful appeal is found to have lacked any real prospect of success and therefore to have been unmeritorious. But this was not the situation here. As we have said at [1] above, the appeal raised a difficult question of interpretation. At various points in our judgment on the appeal (see Lituma Pty Ltd v Jafari (RLD) [2005] NSWADTAP 37 at [34], [51] and [79]), we indicated that the arguments raised by the Appellant were clearly meritorious. 11 In these circumstances, we have no hesitation in dismissing the Respondent's application for the costs of the appeal.