Kindful (Australia) Pty Limited v. Country Villa Holdings Pty Limited (No 2) [2006] NSWADT 357

Kindful (Australia) Pty Limited v. Country Villa Holdings Pty Limited (No 2) [2006] NSWADT 357

The Tribunal has jurisdiction to make orders binding the guarantor under the Retail Leases Act, and the Guarantor, Mr Cam Chuen Chu, is liable pursuant to the unlimited guarantee provided. Special circumstances exist, including absence of basis for the proceedings against the Lessor and that the Lessor had no authority to rectify the faults complained of, justifying a costs order against the Lessee and Guarantor.

Jurisdiction
Australia
Judgment Date
20 December 2006
Procedural Posture
Retail Tenancy Claim / Costs Application / Post Judgment, Determination of Guarantor Liability and Costs
Outcome
Orders made in favour of the Lessor. Judgment for Lessor for $400,000 against the Guarantor. Costs awarded in favour of the Lessor against Lessee and Guarantor.
Legal Topics
['retail Leases' 'guarantor Liability' 'costs Orders' 'dispute Resolution in Retail Leases']
['property Law' 'commercial Law'] ['retail Leases' 'guarantor Liability' 'costs Orders' 'dispute Resolution in Retail Leases']

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Procedural Posture

Retail Tenancy Claim / Costs Application / Post Judgment, Determination of Guarantor Liability and Costs

Legal Issues

  1. 1 ['Whether the Tribunal has jurisdiction over and may order against a guarantor under a retail shop lease' 'Liability of the guarantor for lessee’s obligations' "Whether 'special circumstances' existed to justify an order for costs against the lessee and guarantor"]

Ratio Decidendi

The Tribunal has jurisdiction to make orders binding the guarantor under the Retail Leases Act, and the Guarantor, Mr Cam Chuen Chu, is liable pursuant to the unlimited guarantee provided. Special circumstances exist, including absence of basis for the proceedings against the Lessor and that the Lessor had no authority to rectify the faults complained of, justifying a costs order against the Lessee and Guarantor.

Court Disposition

Orders made in favour of the Lessor. Judgment for Lessor for $400,000 against the Guarantor. Costs awarded in favour of the Lessor against Lessee and Guarantor.

Orders

  • ['The First Applicant/Second Respondent/Lessee and the Third Respondent/Guarantor pay the costs of the First Respondent/Second Applicant/Lessor in both proceedings numbered 055066 and 055104, such costs to include the costs of the First Respondent/Second Applicant as Defendant in Supreme Court, Equity Division,...