The 'No costs' nature of the retail leases
jurisdiction is often a significant consideration in deciding
whether or not to commence or defend claims in the Administrative
Recent changes to the Administrative Decisions TribunalAct 1997 (NSW) have altered this dynamic and made adverse
legal costs orders more likely.
Up until 31 December 2008, section 88 of the Act provided that
the Tribunal may award costs in relation to proceedings before it,
but only if it is satisfied that there are "special
circumstances" warranting an award of costs.
This changed significantly on 1 January 2009, section 88 being
amended to provide:
(1) Each party to proceedings before the Tribunal is to bear the
party's own costs in the proceedings, except as provided by
(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 unnecessarilydisadvantage the other party to the
proceedings by conduct such as:
failing to comply with an order or direction of the
Tribunal without reasonable excuse, or
failing to comply with this Act, the regulations, the rules
of the Tribunal or any relevant provisions of the enactment under
which the Tribunal has jurisdiction in relation to the proceedings,
asking for an adjournment as a result of a failure referred
to in subparagraph (i) or (ii), or
causing an adjournment, or
attempting to deceive another party or the Tribunal,
vexatiously conducting the proceedings;
(b) whether a party has been responsible for prolonging
unreasonably the time takento complete the
(c) the relative strength of claims made by each of the
parties, including whether aparty 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
Much ink was spilt by members of the ADT as to what comprised
'special circumstances warranting an award of
costs' under the old version of section 88. As those words
no longer appear in the Act and the new section 88 extends to
applications and proceedings commenced but not finally determined
before 1 January 2009, that bank of authority now seems
The new section 88 expands the circumstances in which a party
may be ordered to pay its opponent's legal costs. It also
enhances accessibility to the criteria to be applied by the
Tribunal, previously a mystery to the uninitiated.
However, in enabling the Tribunal to take into account
'any other matter that the Tribunal considers
relevant', the new subsection 88(1A)(e) leaves the door
wide open to complexity and uncertainty. This, in time, will give
rise to the development of a new bank of authority as to whether
the Tribunal should be satisfied that it is fair to order legal
costs. In the interim, we are left to speculate.
t (02) 9931 4940
t (03) 9612 8282
t (03) 9612 8247
The content of this article is intended to provide a general
guide to the subject matter. Specialist advice should be sought
about your specific circumstances.
To print this article, all you need is to be registered on Mondaq.com.
Click to Login as an existing user or Register so you can print this article.
The Council announced planning policies to encourage more inner suburban retirement village and aged care development.
Some comments from our readers… “The articles are extremely timely and highly applicable” “I often find critical information not available elsewhere” “As in-house counsel, Mondaq’s service is of great value”
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).