Peat v Burcul and anor [2008] NSWADT 47

Peat v Burcul and anor [2008] NSWADT 47

The Tribunal found that William and Susan Costello voluntarily took an assignment of the retail lease, were obliged to pay rent and outgoings, were significantly in default by May 2005, and abandoned the premises on or about 14 June 2005. Rasko took reasonable steps to clean and re-let the premises, but a tenant was not found until mid November 2005. The proven unpaid rent, outgoings and interest were recoverable under the lease. Special circumstances justified an award of costs because of the commercial nature of the lease, the abandonment with unpaid rent and disrepair, the defence of the proceedings, the institution and non-pursuit of the counter claim, and the expense to which Rasko...

Jurisdiction
Australia
Judgment Date
06 February 2008
Procedural Posture
Retail Leases Division Claim for Payment of Money and Costs / Principal Matter After Hearing; Related Matters 065089, 065117 and 065119 Dealt With by Final or Procedural Orders
Outcome
Rasko succeeded against Susan Joy Costello and William Costello in matter No. 065089 for $48,663.15 plus costs as agreed or assessed; the counter claim in matter No. 065117 was dismissed; matter No. 065119 was adjourned for directions.
Legal Topics
['unpaid Rent and Outgoings' 'interest Under Lease' 'assignment of Lease' 'abandonment of Premises' 'costs in Special Circumstances' 'counter Claim Dismissal' 'discontinuance' 'adjournment for Directions']
['retail Leases' 'costs' 'contractual Lease Obligations'] ['unpaid Rent and Outgoings' 'interest Under Lease' 'assignment of Lease' 'abandonment of Premises' 'costs in Special Circumstances' 'counter Claim Dismissal' 'discontinuance' 'adjournment for Directions']

Case Brief

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Procedural Posture

Retail Leases Division Claim for Payment of Money and Costs / Principal Matter After Hearing; Related Matters 065089, 065117 and 065119 Dealt With by Final or Procedural Orders

Legal Issues

  1. 1 ['Whether William and Susan Costello were liable to Rasko Holdings Pty Ltd for unpaid rent and outgoings after assignment of the retail lease and abandonment of the premises.' 'Whether Rasko Holdings Pty Ltd was entitled to interest on amounts payable under the lease.' 'Whether special circumstances existed for an award of costs in the Tribunal.' "What orders should be made in the related proceedings, including discontinuance against Daryl Martin Peat, dismissal of the counter claim, and adjournment of Peat's claim against Burcul."]

Ratio Decidendi

The Tribunal found that William and Susan Costello voluntarily took an assignment of the retail lease, were obliged to pay rent and outgoings, were significantly in default by May 2005, and abandoned the premises on or about 14 June 2005. Rasko took reasonable steps to clean and re-let the premises, but a tenant was not found until mid November 2005. The proven unpaid rent, outgoings and interest were recoverable under the lease. Special circumstances justified an award of costs because of the commercial nature of the lease, the abandonment with unpaid rent and disrepair, the defence of the proceedings, the institution and non-pursuit of the counter claim, and the expense to which Rasko...

Court Disposition

Rasko succeeded against Susan Joy Costello and William Costello in matter No. 065089 for $48,663.15 plus costs as agreed or assessed; the counter claim in matter No. 065117 was dismissed; matter No. 065119 was adjourned for directions.

Orders

  • ['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.' '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...