CITATION: Costello and anor v Rasko Holdings Pty Ltd [2008] NSWADT 46 DIVISION: Retail Leases Division PARTIES: APPLICANTS
RESPONDENT
William Costello and Susan Joy Costello
Rasko Holdings Pty LtdFILE NUMBER: 065117 (Related matters 065089,065119) HEARING DATES: 3 December 2007 SUBMISSIONS CLOSED: 3 December 2007
DATE OF DECISION:
6 February 2008BEFORE: Olsson E SC - Deputy President; Harrison B - Non Judicial Member; Griffiths G - Non Judicial Member CATCHWORDS: Claim for payment of money - Costs MATTER FOR DECISION: Principal matter LEGISLATION CITED: Retail Leases Act 1994 CASES CITED: Charteris v General Manager, Leichhardt Municipal Council [2001] NSWADTAP 12
Gizah Pty Ltd v AXA Trustees Ltd (No 2) [2001] NSWADT 164
Stefopoulos v Manikas (No 3) [2004] NSWADT 172
Wood and Anor v Bergman (No2) [2003] NSWADT 175REPRESENTATION: APPLICANT
RESPONDENT
No appearance
A Zahra, barristerORDERS: 1. In matter No. 065089, the Tribunal notes that the application against Goislav Burcul and Wendy Dawn Burcul had previously been dismissed with no order as to costs.
2. In matter No. 065089, the Tribunal gives leave to Rasko Holdings Pty Ltd to discontinue the application as against Daryl Martin Peat, with no order as to costs.
3. In matter No. 065089, the Tribunal orders Susan Joy Costello and William Costello to pay to Rasko Holdings Pty Ltd the sum of $48,663.15, (being $38,891.30 plus $9,771.85) plus costs as agreed or assessed.
4. In matter No. 065117, the application is dismissed. Rasko Holdings Pty Ltd made an application for costs in respect of this matter. The costs which were claimed (and which have been allowed) in matter No. 065089 were particularised, inter alia, in the affidavit of Michael Doropoulos sworn on 28 November 2007 and plainly include costs arising from the counter claim filed by the Costello’s. In those circumstances, the Tribunal declines to make any further order as to costs.
5. In accordance with the application made by Daryl Martin Peat, matter No. 065119 is adjourned for directions on a date to be fixed by the Registry.
REASONS FOR DECISION
Background
There are three sets of related proceedings before the Tribunal:
1 Proceeding number 065089 is an application by Rasko Holdings Pty Limited (“Rasko”) against Daryl Martin Peat (“Peat”), Goislav Burcul and Wendy Burcul (“Burcul”) and William and Susan Costello (“Costello”). This claim is for unpaid rent and outgoings, interest and legal costs and expenses in respect of a retail lease over property at 60 The Esplanade, Terrigal (“the premises”). The proceedings between Rasko and Burcul were withdrawn or dismissed before the matter came to the Tribunal for determination. At the hearing of the matter the Tribunal was told by counsel for Rasko that it had settled proceedings between it and Peat and sought an order that the proceedings formally be discontinued with no order as to costs.
2 Proceeding number 065117 is a counter claim brought by William and Susan Costello against Rasko. The claim was for damages in the amount of $139,128.50 plus interest and costs. The claim…
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- Case
- [2008] NSWADT 46
- Decision Date
CaseChat Overview and Summary
The Tribunal considered the evidence presented, including the affidavit of Michael Doropoulos, and examined the costs claimed by Rasko Holdings Pty Ltd. The Tribunal noted that the application against Goislav Burcul and Wendy Dawn Burcul had already been dismissed with no order as to costs. Additionally, it allowed Rasko Holdings Pty Ltd to discontinue the application against Daryl Martin Peat without any costs order. In respect of the primary claim, the Tribunal found the Costellos liable to pay Rasko Holdings Pty Ltd the sum of $48,663.15 plus costs. The Tribunal declined to make any further order regarding costs in relation to the ancillary matter, considering the costs claimed in the primary matter already encompassed those from the counterclaim. The ancillary matter was dismissed, and the application for costs related to this dismissal was not proceeded with.
The final orders of the Tribunal included the dismissal of the application against the Burculs and the granting of leave to Rasko Holdings Pty Ltd to discontinue the application against Peat, both without costs. The Tribunal ordered Susan Joy Costello and William Costello to pay Rasko Holdings Pty Ltd the specified sum plus costs. The ancillary application was dismissed, and no further costs were ordered. Additionally, matter No. 065119 was adjourned for directions as per the application by Daryl Martin Peat.
Orders
Orders of the court
1. In matter No. 065089, the Tribunal notes that the application against Goislav Burcul and Wendy Dawn Burcul had previously been dismissed with no order as to costs. 2. In matter No. 065089, the Tribunal gives leave to Rasko Holdings Pty Ltd to discontinue the application as against Daryl Martin Peat, with no order as to costs. 3. In matter No. 065089, the Tribunal orders Susan Joy Costello and William Costello to pay to Rasko Holdings Pty Ltd the sum of $48,663.15, (being $38,891.30 plus $9,771.85) plus costs as agreed or assessed. 4. In matter No. 065117, the application is dismissed. Rasko Holdings Pty Ltd made an application for costs in respect of this matter. The costs which were claimed (and which have been allowed) in matter No. 065089 were particularised, inter alia, in the affidavit of Michael Doropoulos sworn on 28 November 2007 and plainly include costs arising from the counter claim filed by the Costello's. In those circumstances, the Tribunal declines to make any further order as to costs. 5. In accordance with the application made by Daryl Martin Peat, matter No. 065119 is adjourned for directions on a date to be fixed by the Registry.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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