Karacominakis v Big Country Developments Pty Ltd & Ors Big Country Developments Pty Ltd v Chadlace Pty Ltd & Ors J W Wall Investment Co Pty Ltd & Ors v Big Country Developments Pty Ltd & Ors Hollingsworth & Anor v Big Country Developments Pty Ltd & Ors [2000] NSWCA 313

Karacominakis v Big Country Developments Pty Ltd & Ors Big Country Developments Pty Ltd v Chadlace Pty Ltd & Ors J W Wall Investment Co Pty Ltd & Ors v Big Country Developments Pty Ltd & Ors Hollingsworth & Anor v Big Country Developments Pty Ltd & Ors [2000] NSWCA 313

Registration of a lease under the Real Property Act 1900 (NSW) confers indefeasibility and makes the covenants, including to pay rent, enforceable, even if a material alteration (here, entry of a mortgage as a prior encumbrance) had voided the instrument under Pigot's case; but guarantees are not enforceable if the registered lease materially differs from that guaranteed. Consequentially, Wall Investment and Mr Karacominakis are liable for unpaid rent and damages for repudiation; Chadlace and the Johnstons are contractually liable under the deed; the Walls and the Hollingsworths are not liable as guarantors or former assignees; claims for misleading conduct against Mr Karacominakis and...

Parties
Appellant in 40696/97, Fourth Respondent in 40702/97, Fifth Respondent in 40877/97: Nicholas Karacominakis; First Respondent in 40696/97, Appellant/first Cross Respondent in 40698/97, First Respondent in 40702/97 & First Respondent in 40877/97: Big Country Developments Pty Ltd; Second Cross Respondent in 40698/97: Peter Herman Hesky; Second Respondent in 40696/97, First Appellant in 40702/97, Second Respondent in 40877/97: J W Wall Investment Co Pty Ltd; Third Respondent in 40696/97, Second Appellant in 40702/97, Third Respondent in 40877/97: John William Wall; Fourth Respondent in 40696/97, Third Appellant in 40702/97, Fourth Respondent in 40877/97: Cecilia Ellen Wall; Fifth Respondent in 40696/97, Second Respondent in 40702/97, First Appellant in 40877/97: Jeffrey Hollingsworth; Sixth Respondent in 40696/97, Third Respondent in 40702/97, Second Appellant in 40877/97: Gillian Gai Hollingsworth; Seventh Respondent in 40696/97, First Respondent/cross Appellant in 40698/97, Fifth Respondent in 40702/97, Sixth Respondent in 40877/97: Chadlace Pty Ltd; Eighth Respondent in 40696/97, Second Respondent/cross Appellant in 40698/97, Sixth Respondent in 40702/97, Seventh Respondent in 40877/97: Glen Johnston; Ninth Respondent in 40696/97, Second Respondent/cross Appellant in 40698/97, Seventh Respondent in 40702/97, Eighth Respondent in 40877/97: Karen Schmitz
Jurisdiction
Australia
Judgment Date
17 November 2000
Procedural Posture
Civil Appeal / Court of Appeal Judgment
Outcome
Appeals and cross-appeals allowed in part and otherwise dismissed. Orders, declarations, and judgments varied as set out; new orders/judgments made for and against parties according to reasoning.
Legal Topics
Leasehold Interests, Guarantees in Leases, Repudiation and Damages, Assignment of Leases, Misleading Conduct (trade Practices/fair Trading), Contribution/indemnity Between Sureties
Property Law Contract Law Equity and Trusts Leasehold Interests Guarantees in Leases Repudiation and Damages Assignment of Leases Misleading Conduct (trade Practices/fair Trading) +1 more

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Parties

Nicholas Karacominakis

Appellant in 40696/97, Fourth Respondent in 40702/97, Fifth Respondent in 40877/97

Big Country Developments Pty Ltd

First Respondent in 40696/97, Appellant/first Cross Respondent in 40698/97, First Respondent in 40702/97 & First Respondent in 40877/97

Peter Herman Hesky

Second Cross Respondent in 40698/97

J W Wall Investment Co Pty Ltd

Second Respondent in 40696/97, First Appellant in 40702/97, Second Respondent in 40877/97

John William Wall

Third Respondent in 40696/97, Second Appellant in 40702/97, Third Respondent in 40877/97

Cecilia Ellen Wall

Fourth Respondent in 40696/97, Third Appellant in 40702/97, Fourth Respondent in 40877/97

Jeffrey Hollingsworth

Fifth Respondent in 40696/97, Second Respondent in 40702/97, First Appellant in 40877/97

Gillian Gai Hollingsworth

Sixth Respondent in 40696/97, Third Respondent in 40702/97, Second Appellant in 40877/97

Chadlace Pty Ltd

Seventh Respondent in 40696/97, First Respondent/cross Appellant in 40698/97, Fifth Respondent in 40702/97, Sixth Respondent in 40877/97

Glen Johnston

Eighth Respondent in 40696/97, Second Respondent/cross Appellant in 40698/97, Sixth Respondent in 40702/97, Seventh Respondent in 40877/97

Karen Schmitz

Ninth Respondent in 40696/97, Second Respondent/cross Appellant in 40698/97, Seventh Respondent in 40702/97, Eighth Respondent in 40877/97

Procedural Posture

Civil Appeal / Court of Appeal Judgment

Legal Issues

  1. 1 Whether registration of a lease cures a material alteration to the lease
  2. 2 Effectiveness of a guarantee after alteration/registration of lease
  3. 3 Liability of successive assignees for rent and damages after repudiation

Ratio Decidendi

Registration of a lease under the Real Property Act 1900 (NSW) confers indefeasibility and makes the covenants, including to pay rent, enforceable, even if a material alteration (here, entry of a mortgage as a prior encumbrance) had voided the instrument under Pigot's case; but guarantees are not enforceable if the registered lease materially differs from that guaranteed. Consequentially, Wall Investment and Mr Karacominakis are liable for unpaid rent and damages for repudiation; Chadlace and the Johnstons are contractually liable under the deed; the Walls and the Hollingsworths are not liable as guarantors or former assignees; claims for misleading conduct against Mr Karacominakis and...

Court Disposition

Appeals and cross-appeals allowed in part and otherwise dismissed. Orders, declarations, and judgments varied as set out; new orders/judgments made for and against parties according to reasoning.

Orders

  • Order 2(iv) (22 Sep 1997) set aside.
  • Judgment for Big Country against Walls ($517,311) set aside and judgments in favour of Walls substituted.