Fees argument flares up over Austral Hotel lease legal feud in Adelaide court

Debate has flared up in court over a $100,000 lease dispute of an iconic Adelaide pub, with one lawyer claiming the other was using a misleading argument.

Two lawyers have clashed in court over a bitter legal feud involving the owners of The Austral and its landlords over a $100,000 lease dispute, with one lawyer claiming the other was “engaging in sophistry”.

Owners Brettski and Ian Stewart have taken their landlord – Austral Properties – to court, claiming they sent them a notice of lease renewal, in the required period of time, but the landlord says they never received it.

As a result, they face being kicked out despite claiming to have invested more than $400,000 in renovations for the iconic Adelaide landmark.

On Thursday, counsel, for the Stewarts, said his clients were “seeking costs on an indemnity basis payable forthwith” – asking the court to make an order for payment for expenses incurred during the legal proceedings from the other party.

“I know that’s an unusual order to make on an interlocutory application but this is a particularly unusual application,” they said.

“Your Honour, I don’t extend my application to fixing an amount of money – that will be worked out – but I do seek an application that the costs be paid forthwith, and that they be on an indemnity basis.”

The Austral, on Rundle St, could be forced to close.

The Austral is a staple of the Adelaide pub scene.

Interlocutory orders are orders made by the court while a case is still going. Orders for costs to be paid forthwith are rare, with costs usually paid at the end of the dispute. Indemnity costs are a higher percentage of costs than standard court costs.

Auxiliary Judge Wayne Chivell said: “I’m not sure I can order they be paid forthwith if we don’t have an amount”.

Counsel, for Austral Properties, agreed – telling the court the proposed order was “not appropriate”.

“As my learned friend said, it’s very unusual in an interlocutory application for costs to be parted with forthwith,” they said.

“Your Honour, we would consent to costs on the standard scale.

“Now, to make an order other than a standard order, there has to be something that is extraordinary or takes it out of the usual course. Because a party makes an application, that is not determined, doesn’t make it out of the ordinary course.

“There was no letter saying to us ‘this is a completely outrageous application that is pursuant of indemnity costs’. There was no warning that indemnity costs would be asked for on any occasion.”

Counsel, for the Stewarts, replied – telling Judge Chivell his opposing counsel was “engaging in sophistry”.

“He says the application was ‘not determined’,” they said. “In my submission, there’s no requirement for there to be an amount if there’s going to be a forthwith order.”

The parties will return to court later this month.

Originally published as Fees argument flares up over Austral Hotel lease legal feud in Adelaide court