93 GSP Pty Ltd v Advent 8 Pty Limited [2013] NSWDC 135

93 GSP Pty Ltd v Advent 8 Pty Limited [2013] NSWDC 135

The landlord's letter of 16 January 2012 did not effectively terminate the lease by notice, and the landlord had waived reliance on some earlier or non-rent defaults, including the December rent default and the bank guarantee default. However, the tenant failed to pay the January 2012 rent, that default was not waived and was unaffected by s 129 of the Conveyancing Act 1919, so the landlord validly terminated the lease by re-entry under clause 10.1. The plaintiff proved recoverable loss based on the difference between the old rent and the new lease rent and the second defendant did not prove a failure to mitigate, so the guarantor was liable for damages and interest. Because proceedings...

Jurisdiction
Australia
Judgment Date
14 May 2013
Procedural Posture
Civil Lease Dispute Concerning Unpaid Rent, Termination by Re Entry, Guarantor Liability, and Tenant Cross Claim for Trespass and Conversion / Principal Ex Tempore Judgment After Hearing
Outcome
Judgment for the plaintiff against the second defendant; cross-claim dismissed with no order as to costs.
Legal Topics
['unpaid Rent' 'termination by Re Entry' 'waiver of Forfeiture' 'tenant in Liquidation' 'guarantee and Indemnity' 'mitigation of Loss' 'costs']
['property Law' 'leases' 'contract Law' 'corporations Law' 'civil Procedure'] ['unpaid Rent' 'termination by Re Entry' 'waiver of Forfeiture' 'tenant in Liquidation' 'guarantee and Indemnity' 'mitigation of Loss' 'costs']

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Procedural Posture

Civil Lease Dispute Concerning Unpaid Rent, Termination by Re Entry, Guarantor Liability, and Tenant Cross Claim for Trespass and Conversion / Principal Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ["Whether the landlord's termination of the lease by re-entry was lawful." 'Whether the landlord waived its right to terminate the lease for non-payment of rent.' 'Whether s 129 of the Conveyancing Act 1919 affected the enforceability of any right of re-entry or forfeiture.' 'Whether the landlord mitigated its loss and what damages were recoverable.' 'What costs orders should be made, including whether indemnity costs were available against the guarantor.']

Ratio Decidendi

The landlord's letter of 16 January 2012 did not effectively terminate the lease by notice, and the landlord had waived reliance on some earlier or non-rent defaults, including the December rent default and the bank guarantee default. However, the tenant failed to pay the January 2012 rent, that default was not waived and was unaffected by s 129 of the Conveyancing Act 1919, so the landlord validly terminated the lease by re-entry under clause 10.1. The plaintiff proved recoverable loss based on the difference between the old rent and the new lease rent and the second defendant did not prove a failure to mitigate, so the guarantor was liable for damages and interest. Because proceedings...

Court Disposition

Judgment for the plaintiff against the second defendant; cross-claim dismissed with no order as to costs.

Orders

  • ['Judgment for the plaintiff against the second defendant in the sum of $142,555.34 inclusive of interest.' "Order the second defendant pay the plaintiff's costs of its claim, those costs not to include the costs of the preparation and sending of the Notice of Termination of Lease dated 16 January 2012."...