Forte-Senes Hotels Pty Ltd v Austcorp No 473 Pty Ltd & Ors [2004] NSWCA 31

Forte-Senes Hotels Pty Ltd v Austcorp No 473 Pty Ltd & Ors [2004] NSWCA 31

The conduct of Forte-Senes Hotels Pty Ltd and Austcorp did not demonstrate an unequivocal agreement to terminate the lease by surrender according to the applicable legal principles, nor did the deletion of the guarantee clause discharge the guarantors upon assignment. Therefore, surrender by operation of law and discharge of the guarantors were not established.

Jurisdiction
Australia
Judgment Date
25 February 2004
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal allowed
Legal Topics
['leases' 'surrender by Operation of Law' 'assignment' 'guarantee Liability']
['property Law'] ['leases' 'surrender by Operation of Law' 'assignment' 'guarantee Liability']

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

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 ['Whether the lease had been terminated by surrender by operation of law prior to the end of May 2001' 'Whether the lease had been assigned prior to the end of May 2001 and by the terms of their guarantee the guarantors had thereby been discharged']

Ratio Decidendi

The conduct of Forte-Senes Hotels Pty Ltd and Austcorp did not demonstrate an unequivocal agreement to terminate the lease by surrender according to the applicable legal principles, nor did the deletion of the guarantee clause discharge the guarantors upon assignment. Therefore, surrender by operation of law and discharge of the guarantors were not established.

Court Disposition

Appeal allowed

Orders

  • ['Appeal allowed' "Judgments and orders for costs made below set aside, and in lieu thereof: (i) On the plaintiff's claim, judgment for the plaintiff for $118,634.51 to take effect on 20 December 2002; (ii) Cross-claim dismissed; (iii) Defendants/cross-claimant pay the plaintiff/cross-defendant's costs of the claim...