Pel Air Aviation Pty Limited v Rossi & Anor [2007] NSWSC 1056

New South Wales Supreme Court

CITATION : Pel Air Aviation Pty Limited v Rossi & Anor [2007] NSWSC 1056 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 19/09/2007

JUDGMENT DATE : 27 September 2007

JUDGMENT OF : Associate Justice Malpass

DECISION : The appeal and the cross-appeal both fail. The Summons is dismissed. The plaintiff is to pay the costs of the Summons. The Cross-Summons is dismissed. The defendants are to pay the costs of the Cross-Summons.

CATCHWORDS : One proceedings - two separate claims - two judgments - bond moneys and credit - no set-off on cross-claim - costs decision - no error in point of law or mixed question of law and fact

CASES CITED : Browne v Dunn (1893) 6 R 67

Pel Air Aviation Pty Limited (Pl) PARTIES : Robert Rossi (1st Def) Anthony Rossi (2nd Def)

FILE NUMBER(S) : SC 15214/06

COUNSEL : Mr R. Scruby (Pl) Ms N. Obrart (Def's)

SOLICITORS : David Hand, Solicitor (Pl) C P White & Hetherington (Def's)

LOWER COURT JURISDICTION : Local Court

LOWER COURT FILE NUMBER(S) : 1357/05

LOWER COURT JUDICIAL OFFICER : Dillon LCM

LOWER COURT DATE OF DECISION : 24/04/2006, 28/09/2006

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

ASSOCIATE JUSTICE MALPASS

27 SEPTEMBER 2007

15214/06 Pel Air Aviation Pty Limited v Rossi & Anor

JUDGMENT 1 HIS HONOUR: By lease dated 8 November 2002, Robert Rossi (RR) leased premises known as Unit 3, 26 Kent Road, Mascot to Pel Air Aviation (Pel Air). 2 By lease dated 30 November 2002, Anthony Rossi (AR) leased premises known as Unit 4, 26 Kent Road, Mascot to Pel Air. 3 Pel Air provided a bond in relation to both Units. It was held by the real estate agent acting for the lessors (Mr Taylor) in an interest bearing account. The bond had been provided as security for the performance by Pel Air of its obligations under the leases. 4 Pel Air vacated Unit 3 on or about 27 October 2004. It vacated Unit 4 on or about 12 January 2005. 5 Disputes arose concerning unpaid rent, outgoings, repair and rectification costs (these repair and rectification costs came to be generally referred to as rectification costs). Mr Taylor purported to apply the bond moneys (then in the amount of $18,185.22) in reduction of what was alleged to be due in respect of Unit 3. 6 There seems to have been some confusion in what was done by RR and AR in respect of the bond moneys. Initially, it had been asserted that they had been applied in respect of rectification costs. It later emerged (in evidence adduced in the Local Court) that the purported application related both to rectification costs and other claims in respect of Unit 3. 7 RR and AR brought one proceeding in the Local Court. What was claimed came to be presented in an amended form. It was separated into two claims. Ultimately, the amount claimed in respect of Unit 3 was as follows:- "$9402.31 for rent and outgoings on Unit 3 $10,812.80 for repairs and rectification on Unit 3 less: $18,185.22 (the amount of the bond) Total: $2,029.89" (this calculation was made on the basis that a credit had been allowed in the sum of the bond moneys)