Aussie Bananas Pty Limited v Garage 88 Sydney Pty Limited; Garage 88 Sydney Pty Limited v Aussie Bananas Pty Limited [2022] NSWDC 510

Aussie Bananas Pty Limited v Garage 88 Sydney Pty Limited; Garage 88 Sydney Pty Limited v Aussie Bananas Pty Limited [2022] NSWDC 510

The evidence established the unpaid rent and interest, the relevant set-off, the lessee's liability for cleaning damages and the allowable painting damages, and the guarantor's obligation to indemnify the lessee for the amount owing. The contractual costs provisions entitled the plaintiff to indemnity costs. Because the cross-claimants did not appear and adduced no evidence, the cross-claim was dismissed under r 29.7(4), with entry of that order delayed for two weeks.

Jurisdiction
Australia
Judgment Date
24 March 2022
Procedural Posture
Civil Proceedings Concerning a Lease Claim for Unpaid Rent, Interest, Cleaning and Painting, With a Cross Claim / Hearing Where the Defendants and Cross Claimants Did Not Appear; Judgment Entered for the Plaintiff and Cross Claim Dismissed
Outcome
Judgment for the plaintiff against the first and second defendants in the sum of $108,130.76; defendants ordered to pay indemnity costs; cross-claim dismissed with entry of the dismissal order delayed for two weeks.
Legal Topics
['recovery of Rent and Outgoings' 'interest' 'cleaning and Painting Obligations Under Lease' 'judgment When Defendant Is Absent' 'dismissal When Plaintiff or Cross Claimant Is Absent' 'indemnity Costs']
['leases and Tenancies' 'civil Procedure'] ['recovery of Rent and Outgoings' 'interest' 'cleaning and Painting Obligations Under Lease' 'judgment When Defendant Is Absent' 'dismissal When Plaintiff or Cross Claimant Is Absent' 'indemnity Costs']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Civil Proceedings Concerning a Lease Claim for Unpaid Rent, Interest, Cleaning and Painting, With a Cross Claim / Hearing Where the Defendants and Cross Claimants Did Not Appear; Judgment Entered for the Plaintiff and Cross Claim Dismissed

Legal Issues

  1. 1 ['Whether judgment could be entered against the absent defendants under r 29.7(3) of the Uniform Civil Procedure Rules 2005 for the unpaid rent, interest and other amounts claimed.' 'Whether the plaintiff proved damages for cleaning and painting arising from breach of lease obligations.' 'Whether the second defendant was liable as guarantor for the amount owing by the first defendant.' 'Whether the plaintiff was entitled to indemnity costs under the lease.' "Whether the defendants' cross-claim should be dismissed because the cross-claimants did not appear and adduced no evidence."]

Ratio Decidendi

The evidence established the unpaid rent and interest, the relevant set-off, the lessee's liability for cleaning damages and the allowable painting damages, and the guarantor's obligation to indemnify the lessee for the amount owing. The contractual costs provisions entitled the plaintiff to indemnity costs. Because the cross-claimants did not appear and adduced no evidence, the cross-claim was dismissed under r 29.7(4), with entry of that order delayed for two weeks.

Court Disposition

Judgment for the plaintiff against the first and second defendants in the sum of $108,130.76; defendants ordered to pay indemnity costs; cross-claim dismissed with entry of the dismissal order delayed for two weeks.

Orders

  • ['Judgment for the plaintiff against the first and second defendants in the sum of $108,130.76.' "Defendants to pay the plaintiff's costs of the proceedings, including the costs of the cross-claim, on an indemnity basis." 'Cross-claim dismissed.' 'Order 3 hereof not to be entered for 2 weeks.' "Direct the plaintiff...