Rasko Holdings Pty Ltd v Peat - [2008] NSWADT 43

CITATION: Rasko Holdings Pty Ltd v Peat and ors [2008] NSWADT 43

DIVISION: Retail Leases Division

PARTIES:
APPLICANT
Rasko Holdings Pty Ltd
FIRST RESPONDENT
Daryl Martin Peat
SECOND RESPONDENT
Goislav Burcul
THIRD RESPONDENT
Wendy Burcul
FOURTH RESPONDENT
William Costello
FIFTH RESPONDENT
Susan Joy Costello

FILE NUMBER: 065089 (Related matters 065117, 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
A Zahra, barrister
FIRST RESPONDENT
J Gooley, barrister
SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS:
No appearance

ORDERS: 1. In matter No. 065089, the Tribunal notes that the application against Goislav 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 to discontinue the application as against Daryl Peat, the first Respondent, with no order as to costs.
3. In matter No. 065089, the Tribunal orders Susan and William Costello to pay to Rasko 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 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 particularized, 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 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…

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 43
Decision Date: 6 February 2008

CaseChat Overview and Summary

In the matter of Rasko Holdings Pty Ltd v Peat, the applicants sought various orders, including payment of money and costs. The Federal Circuit Court of Australia was tasked with deciding on these applications. The central legal issues the Court had to address were whether the applicants were entitled to the payment of money, the costs associated with the litigation, and the procedural steps moving forward.

The Court began by noting that Rasko's application against Goislav and Wendy Dawn Burcul had already been dismissed without any order for costs. It then proceeded to grant Rasko leave to discontinue its application against Daryl Peat, the first Respondent, again without ordering any costs. The Court ordered Susan and William Costello to pay Rasko a specified sum, including the principal amount and interest, along with the costs as agreed or assessed. Regarding the application in matter No. 065117, the Court dismissed it outright. Rasko's application for costs related to this matter was denied as the costs claimed in matter No. 065089 already included those from the counterclaim filed by the Costellos. Lastly, the Court adjourned matter No. 065119 at Peat's request, setting a future date for further directions to be determined by the Registry.

Orders

Orders of the court

1. In matter No. 065089, the Tribunal notes that the application against Goislav 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 to discontinue the application as against Daryl Peat, the first Respondent, with no order as to costs. 3. In matter No. 065089, the Tribunal orders Susan and William Costello to pay to Rasko 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 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 particularized, 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 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:	Rasko Holdings Pty Ltd v Peat and ors [2008] NSWADT 43
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Rasko Holdings Pty Ltd FIRST RESPONDENT Daryl Martin Peat SECOND RESPONDENT Goislav Burcul THIRD RESPONDENT Wendy Burcul FOURTH RESPONDENT William Costello FIFTH RESPONDENT Susan Joy Costello
FILE NUMBER:	065089 (Related matters 065117, 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 A Zahra, barrister FIRST RESPONDENT J Gooley, barrister SECOND, THIRD, FOURTH AND FIFTH RESPONDENTS: No appearance
ORDERS:	1. In matter No. 065089, the Tribunal notes that the application against Goislav 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 to discontinue the application as against Daryl Peat, the first Respondent, with no order as to costs. 3. In matter No. 065089, the Tribunal orders Susan and William Costello to pay to Rasko 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 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 particularized, 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 Peat, matter No. 065119 is adjourned for directions on a date to be fixed by the Registry.