Rucom Pty Ltd and Anor v Multiplex & Ors

Rucom Pty Ltd and Anor v Multiplex & Ors - [2009] NSWSC 1308 - NSWSC 2009 case summary — Zoe

[5]

Alramon Pty Ltd v. Jonamill Pty Ltd (No 2) [2009] NSWADT302 Armstrong Jones Management Pty Limited v. Saies-Bond & Associates Pty Limited (No 2) [2007] NSWADT 58 Auelua v. Ministry of Transport [2009] NSWADT 134 Auto Panel Beaters & Radiators Pty Ltd (in liq) v. Barclays Services Pty Ltd (No 2) [2009] NSWSC 1308 AWFM Management Pty Limited v. Red Roll Pty Limited [2009] NSWADTAP Barsoum v. Glebe Administration Board (No. 2) [2002] NSWADT 174 Building Professionals Board v. Ball (No 2) [2009] NSWADTAP 8 BE v. University of Technology, Sydney (GD) [2009] NSWADTAP 22 Bayne v. Blake (No 3) (2009) CLR 366 Buzrio Pty Ltd v. Consumer, Trader and Tenancy Tribunal (No 3) [2009] NSWSC 1132 Colleja v. Malli [2001] NSWADT 20 Colgate Palmolive Co v. Cussons Pty Ltd (1993) 46 FCR 225 Corrigan & Gibson v. Watson [2009] NSWADT 110 Cripps v. G & M Dawson Pty Ltd [2006] NSWCA 81 Denovan v. Tynan [2009] NSWADT 159 Gizah Pty Limited v. AXA Trustees Limited (No. 2) [2001] NSWADT 164 GN & Anor v. Public Guardian & anor [2009] NSWADTAP 6 Haralovic & Carr v. Law Society of NSW (No 2) [2007] NSWADT 97 CASES CITED: Kyriacou v. Chief Commissioner of State Revenue [2009] NSWADT 175 Law Society of NSW v. Jayawardena [2008] NSWADT 187 Law Society of NSW v. Martin [2008] NSWADT 305 Liverpool City Council v. Estephen [2009] NSWCA 161 Ludon Investments No 7 Pty Ltd v. Barton [2009] NSWSC 1179 McGuirk v. Vice-Chancellor University of NSW (No 3) [2009] NSWADTAP 46 Nawi No. 3 Pty Ltd & Ors v. ING Management Ltd [2005] NSWADT 235 NSW Bar Association v. Archer (No.5) [2005] NSWADT 72 O'Neill v. Henry (No 2) [2009] NSWADT 294 Oshlack v. Richmond River Council [1998] 193CLR 72 Peng v. Chief Commissioner of State Revenue [2009] NSWADT 295 Potier v. Department of Corrective Services [2009] NSWADT 143 Profilio v. Coogee Bay Village Pty Ltd (No 2) [2009] NSWADT 319 Riskalla v. Consulate General of Portugal in Sydney [2009] NSWIRComm 209 Spuds Surf Chatswood Pty Limited v. P T Limited [2007] NSWADT 130 Salon Today Pty Limited v. MMIR Pty Limited [2009] NSWADT 71 Tennent v. Moukhlina (No 2) (costs) [2009] NSWADTAP Trust Company of Australia Ltd v. Craig & Ors [2005] NSWADT 65 Tuffy v. Vaughan (No 2) [2009] NSWADT 242 White ACT (in liq) v. G B White [2004] NSWSC 303 White ACT (in liq) v. G B White [2004] NSWSC 303 at [11]; and at [95]

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3 That Application for Urgent Interim Order came on for hearing before me on 26 March 2009. The Applicants were represented by Mr King, solicitor, the First Respondent also represented by Mr King (by way of mention only), the Second and Third Respondents by Mr Beaumont of counsel and the Fourth Respondent by Ms Fisher, solicitor. I dealt with the application ex tempore. I noted that "at some point of time there were negotiations between the parties relating to the arrears and a Deed was entered into". I then made detailed reference to that Deed. Counsel for the Second and Third Respondents relied upon AWFM Management Pty Limited v. Red Roll Pty Limited [2009] NSWADTAP 3, asserting that in reliance thereof any representations that may have been made to the Applicants by the First Respondent did not flow through to the Second and Third Respondents as assignees. I observed that the Deed in its terms had expired and, importantly, I said, "The difficulties today confronting the Applicant are considerable. One might well ask, and no doubt it will be asked, why it is that the Applicant waited so long to come to this Tribunal". I then referred to a demand by the Second and Third Respondents of arrears of $122,111.36; a consequent threat "to terminate the lease by re-entry"; and then I took the view that in "matters like this on an urgent interim basis the Tribunal tries to act in a way that seeks to preserve the rights of the parties even if only on a temporary basis" consistent with the principles that I had previously set out in Spuds Surf Chatswood Pty Limited v. P T Limited [2007] NSWADT 130 at [60ff]. I formed the view that "a temporary injunction should be granted and the matter brought back in 14 days"; that such "would not unduly prejudice the Second and Third Respondents"; that such would preserve the lease for the time being of the First Applicant and would permit the Applicants to consider the material … and the submissions carefully framed" by counsel for the Second and Third Respondents.

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14 Section 88 is in the following terms: "88(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 of 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 facto 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 and incidental to the proceedings giving rise to the application, as well as the costs of or incidental to the application."

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55 Although decided under the former s.88 I briefly refer to NSW Bar Association v. Archer (No.5) [2005] NSWADT 72 where the Tribunal had no difficulty at all in making an order that the Bar Association pay the costs of a person to whom a summons/ subpoena was issued in circumstances where the terms of that summons were oppressive and "required the production of numerous documents that were irrelevant to the proceedings" (at [16]) and that was held to constitute "special circumstances warranting an award of costs". It seems to me that commencing proceedings, or (indeed) maintaining those proceedings when the prospects of success were, at all times, minimal or non-existent, would not only constitute "special circumstances" but would fall clearly within s.88 as it came into operation on 1 January 2009. In addition, I would refer to Haralovic & Carr v. Law Society of NSW (No 2) [2007] NSWADT 97 where that Tribunal made this observation at [30]: "A recognised category of "special circumstances" - see eg Trust Company of Australia Ltd v. Craig & Ors [2005] NSWADT 65 at [44-45] and Nawi No. 3 Pty Ltd & Ors v. ING Management Ltd [2005] NSWADT 235 at [23] - is where a party, having commenced a proceeding in the Tribunal, withdraws it without good reason before the commencement of the hearing. This is not an "ordinary" circumstance, and the fact that the other party or parties have been put to significant expense in conducting preparations that turn out to be unnecessary has been held sufficient to "warrant" a costs order". In GN & Anor v. Public Guardian & anor [2009] NSWADTAP 6, that Appeal Panel made this observation at [27]: "In our view, section 88(1), stating the normal requirement that the parties to proceedings before the Tribunal will bear their own costs, is consistent with the objects stated in section 3. The Tribunal's discretion to award costs is the exception to the general position, and this may only be exercised where it is fair to do so having regard to the matters referred to in paragraphs (a) to (e) of section 88(1A)". See also Kyriacou v. Chief Commissioner of State Revenue [2009] NSWADT 175 at [38].

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Judgment (79 paragraphs)

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Cases Cited (7)