Costello v Rasko Holdings Pty Ltd - [2008] NSWADT 46

CITATION: Costello and anor v Rasko Holdings Pty Ltd [2008] NSWADT 46

DIVISION: Retail Leases Division

PARTIES:
APPLICANTS
William Costello and Susan Joy Costello
RESPONDENT
Rasko Holdings Pty Ltd

FILE NUMBER: 065117 (Related matters 065089,065119)

HEARING DATES: 3 December 2007

SUBMISSIONS CLOSED: 3 December 2007

DATE OF DECISION:
6 February 2008

BEFORE: 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 175

REPRESENTATION:
APPLICANT
No appearance
RESPONDENT
A Zahra, barrister

ORDERS: 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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NSWADT 46
Decision Date: 6 February 2008

CaseChat Overview and Summary

In the matter of Costello v Rasko Holdings Pty Ltd, the dispute primarily concerned claims for payment of money and associated costs. Rasko Holdings Pty Ltd sought recovery of a sum from Susan Joy Costello and William Costello. The case was heard by the Tribunal, which was tasked with determining the liability of the Costellos and the allocation of costs. The legal issues at the heart of the case involved the validity of Rasko Holdings Pty Ltd's claim for the specified amount, the appropriateness of costs claimed by Rasko Holdings Pty Ltd, and the procedural steps necessary for the resolution of the ancillary matters.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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CITATION:	Costello and anor v Rasko Holdings Pty Ltd [2008] NSWADT 46
DIVISION:	Retail Leases Division
PARTIES:	APPLICANTS William Costello and Susan Joy Costello RESPONDENT Rasko Holdings Pty Ltd
FILE NUMBER:	065117 (Related matters 065089,065119)
HEARING DATES:	3 December 2007
SUBMISSIONS CLOSED:	3 December 2007
DATE OF DECISION:	6 February 2008
BEFORE:	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 175
REPRESENTATION:	APPLICANT No appearance RESPONDENT A Zahra, barrister
ORDERS:	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.