LEWY and ORS v MOSS NOMINEES PTY LTD [1996] NSWCA 325

LEWY and ORS v MOSS NOMINEES PTY LTD [1996] NSWCA 325

The wide language of the lease clauses entitled Moss Nominees to recover loss of bargain damages from the lessee and from the guarantors, as the guarantee was absolute and continuing, and the lessee's covenant to compensate was not limited by the lease's termination. 'Repudiation' in the relevant clauses meant accepted repudiation. The trial judge's findings were supported and the appeal failed.

Parties
Appellant Guarantor: Lewy; Respondent Lessor: Moss Nominees Pty Ltd; Lessee: Bojote Pty Ltd
Jurisdiction
Australia
Judgment Date
10 October 1996
Procedural Posture
Appeal / Decision of the New South Wales Court of Appeal on Appeal From the Supreme Court (o'keefe CJ in Comm D)
Outcome
Appeal dismissed with costs.
Legal Topics
Commercial Lease, Guarantee Liability, Repudiation and Termination, Damages for Loss of Bargain
Landlord and Tenant Contract Law Commercial Lease Guarantee Liability Repudiation and Termination Damages for Loss of Bargain

Case Brief

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Parties

Lewy

Appellant Guarantor

Moss Nominees Pty Ltd

Respondent Lessor

Bojote Pty Ltd

Lessee

Procedural Posture

Appeal / Decision of the New South Wales Court of Appeal on Appeal From the Supreme Court (o'keefe CJ in Comm D)

Legal Issues

  1. 1 Whether the lease and guarantee clauses entitled the lessor to recover damages for loss of bargain from the guarantors for the lessee's breach/repudiation
  2. 2 Whether 'repudiation' in the damages clause means 'accepted repudiation' or includes mere repudiatory conduct

Ratio Decidendi

The wide language of the lease clauses entitled Moss Nominees to recover loss of bargain damages from the lessee and from the guarantors, as the guarantee was absolute and continuing, and the lessee's covenant to compensate was not limited by the lease's termination. 'Repudiation' in the relevant clauses meant accepted repudiation. The trial judge's findings were supported and the appeal failed.

Court Disposition

Appeal dismissed with costs.

Orders

  • Appeal dismissed
  • Appellants to pay the respondent's costs