Appeal Panel - Internal CITATION: Rowinadon Pty Ltd v Ward (No 2) (RLD) [2010] NSWADTAP 2 APPELLANT Rowinadon Pty Ltd PARTIES: RESPONDENT Geoffrey Roy Ward and Kathleen Teresa Ward t/as Robbo's Spare Parts FILE NUMBER: 089074 HEARING DATES: On the papers SUBMISSIONS CLOSED: 21 December 2009 DATE OF DECISION: 20 January 2010 BEFORE: Chesterman M - Deputy President; Rickards K - Judicial Member; Tyler T - Non-Judicial Member CATCHWORDS: Costs –appeal proceedings – retail shop lease DECISION UNDER APPEAL: Rowinadon Pty Ltd v G R Ward & K T Ward t/as Robbo's Spare Parts, Unreported, Administrative Decisions Tribunal, 19 September 2008 FILE NUMBER UNDER APPEAL: 085156 DATE OF DECISION UNDER APPEAL: 03/13/2009 Administrative Decisions Tribunal Act 1997 LEGISLATION CITED : Administrative Decisions Tribunal Amendment Act 2008 Retail Leases Act 1994 CASES CITED: Rowinadon Pty Ltd v G R Ward & K T Ward t/as Robbo's Spare Parts, Unreported, Administrative Decisions Tribunal, 19 September 2008 Rowinadon Pty Ltd v Ward & Anor t/as Robbo's Spare Parts (RLD) [2009] NSWADTAP 14 APPELLANT Rowinadon Pty Ltd REPRESENTATION: RESPONDENT Geoffrey Roy Ward and Kathleen Teresa Ward t/as Robbo's Spare Parts ORDERS: The Respondents' application for the costs of the appeal is dismissed. REASONS FOR DECISION The circumstances of this application for costs 1 This decision relates to the costs of an appeal in which we gave a decision on 13 March 2009 (Rowinadon Pty Ltd v Ward & Anor t/as Robbo's Spare Parts (RLD) [2009] NSWADTAP 14). 2 In that decision, we affirmed the principal order made in a decision of the Retail Leases Division (Rowinadon Pty Ltd v G R Ward & K T Ward t/as Robbo's Spare Parts, Unreported, Administrative Decisions Tribunal, 19 September 2008), exercising the Tribunal's jurisdiction under the Retail Leases Act 1994. That order was in favour of the initial Respondents (and the Respondents in the appeal), Geoffrey Roy Ward and Kathleen Teresa Ward, trading as Robbo's Spare Parts. But we overturned the Tribunal's order that the Applicant (now the Appellant), Rowinadon Pty Ltd, should pay the Respondents' costs. 3 In the concluding paragraphs of our decision (paragraphs [63] to [65]), we gave consideration to the costs of the appeal (in those paragraphs, as in this judgment, we refer to the Administrative Decisions Tribunal Act 1997 as 'the ADT Act'):- 63 Both parties applied for the costs of this appeal. Because the hearing of the appeal took place after 1 January 2009, these costs must be determined in accordance with a new version of section 88 of the ADT Act, inserted by the Administrative Decisions Tribunal Amendment Act 2008. The applicability of the new version to the costs of this appeal appears to us to follow from transitional provisions to be found in Part 11 of Schedule 5 of the ADT Act, as amended (see in particular subparagraph (2)(i) of clause 43). 64 In this new version (see subsections (1) and (1A) of section 88), the prima facie position is that each party should pay its own costs. But costs may be awarded if a criterion of fairness, replacing the former requirement of 'special circumstances warranting an award of costs', is satisfied. 65 Having regard particularly to the foregoing reasons, there is no obvious ground why any award relating to the costs of the appeal should be made. But there may be circumstances of which we are not aware. We accordingly direct as follows:- There will be no order for the costs of this appeal unless a party files and serves an application for costs, with supporting submissions, within 21 days. In such event, the other party is to file and serve submissions in response within a further 21 days. The question of costs will then be determined 'on the papers', pursuant to section 76 of the Administrative Decisions Tribunal Act 1997. 4 On 27 March 2009, before the expiry of the 21-day limit stipulated in this direction, the Respondents, through their solicitors, filed an application for the costs of the appeal, in which supporting submissions were included. They did not, however, serve a copy of this application on the Appellant's solicitors. 5 On 18 August 2009, the Registrar of the Tribunal wrote to the Respondents' solicitors, with copy to the Appellant's solicitors, stating that it was 'unclear' whether the costs application had been served and asking for confirmation that it had been served. 6 The costs application was served on the Appellant's solicitors on 19 October 2009. 7 The Appellants' solicitors filed and served submissions opposing the application on 21 December 2009. 8 In letters to the solicitors for both parties dated 22 December 2009, the Registrar confirmed receipt of these submissions and stated that the costs application would now be decided 'on the papers'. 9 The submissions supporting the costs application referred to the criterion of 'fairness' set out in section 88(1A) of the ADT Act. (This section of the ADT Act is applicable to these proceedings by virtue of section 77A of the Retail Leases Act 1994.) They maintained that it would be 'fair' to award costs to the Respondents because the Appellant had been 'responsible for prolonging unreasonably the time taken to complete the proceedings'. Under section 88(1A)(b), conduct of this nature is specifically identified as a factor that may warrant a finding that it would be 'fair' to award costs. 10 No other reason for concluding that it would be 'fair' to award costs was advanced in the Respondents' costs application. Our decision 11 We reject this costs application for two reasons, both of which were argued in the submissions opposing the application. 12 The first is that the Respondents' solicitors did not serve the application until more than six months after the time stipulated in our direction regarding the costs of the appeal. That direction required explicitly that the application should not only be filed, but should also be served, within 21 days of our decision. In the absence of any explanation for this failure to comply with the direction, it would prima facie be unjust to permit the application to proceed after such a lengthy delay in notifying the opposing party both of its existence and of its contents. 13 Secondly, the Respondents have failed to substantiate the only ground put forward in their application. There was no evidence suggesting that either party unduly prolonged appeal proceedings. The delay to which the Respondents referred in their submissions occurred before the appeal proceedings commenced. It was an aspect of the case that fell to be taken into account in dealing with the costs of the proceedings at first instance. In overturning the Tribunal's decision on this question of costs, we did indeed refer to this matter (see our judgment at [58 – 59]). But it is of no relevance to the costs of the appeal. We accordingly dismiss the Respondents' application for the costs of the appeal. 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