Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354

Heatherway Pty Ltd v Dykes & Wildie [2006] NSWADT 354

Heatherway's claim for arrears under the guarantee was not statute-barred because proceedings had been commenced outside the Tribunal within the six-year limitation period under the Limitation Act; neither subsequent agreements nor alleged oral assurances nor the May 2000 agreement extinguished Dykes and Wildie's liability as guarantors under the lease up to 30 June 2000; unconscionable conduct claim fails as the criteria for such conduct under the RL Act were not met; appropriations of rent payments by Heatherway were validly applied to later arrears, not to the earliest debt.

Parties
Applicant / Cross Respondent: Heatherway Pty Ltd; First Respondent / First Cross Applicant: Peter James Dykes; Second Respondent / Second Cross Applicant: Paul Richard Wildie
Jurisdiction
Australia
Judgment Date
14 December 2006
Procedural Posture
Retail Tenancy Claim / Final Judgment
Outcome
Applicant's claim upheld; respondents found jointly and severally liable for arrears; cross-application dismissed.
Legal Topics
Guarantees, Retail Leases, Limitation Periods, Unconscionable Conduct
Commercial Law Property Law Guarantees Retail Leases Limitation Periods Unconscionable Conduct

Case Brief

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Parties

Heatherway Pty Ltd

Applicant / Cross Respondent

Peter James Dykes

First Respondent / First Cross Applicant

Paul Richard Wildie

Second Respondent / Second Cross Applicant

Procedural Posture

Retail Tenancy Claim / Final Judgment

Legal Issues

  1. 1 Whether liability of guarantors under a retail shop lease was extinguished by subsequent agreements or events
  2. 2 Whether the limitation period bars the lessor's claim against the guarantors
  3. 3 Whether lessor's conduct in enforcing the guarantee was unconscionable

Ratio Decidendi

Heatherway's claim for arrears under the guarantee was not statute-barred because proceedings had been commenced outside the Tribunal within the six-year limitation period under the Limitation Act; neither subsequent agreements nor alleged oral assurances nor the May 2000 agreement extinguished Dykes and Wildie's liability as guarantors under the lease up to 30 June 2000; unconscionable conduct claim fails as the criteria for such conduct under the RL Act were not met; appropriations of rent payments by Heatherway were validly applied to later arrears, not to the earliest debt.

Court Disposition

Applicant's claim upheld; respondents found jointly and severally liable for arrears; cross-application dismissed.

Orders

  • The Respondents/Cross Applicants are jointly and severally liable to pay to the Applicant/Cross Respondent the sum of $122,703
  • The application lodged by the Respondents/Cross Applicants is dismissed