Handcock & ors v Salemon Enterprises Pty Ltd (in liquidation) & anor (No 2) [2009] NSWADT 72

Handcock & ors v Salemon Enterprises Pty Ltd (in liquidation) & anor (No 2) [2009] NSWADT 72

The Second Respondent as guarantor is liable for the quantified losses from the tenant's breach as proved (unpaid rent, signage reinstatement, partial cleaning/rectification), but only where specifically proved; speculative claims are disallowed. Personal costs order against the respondent's solicitor is justified as the strike-out motion lacked reasonable prospects of success within the meaning of s 348 Legal Profession Act 2004, and Tribunal has jurisdiction to make such an order in clear cases.

Jurisdiction
Australia
Judgment Date
03 April 2009
Procedural Posture
Tribunal Compensation Claim for Breach of Retail Lease / Final Decision on Liability, Quantum and Costs
Outcome
Application against First Respondent dismissed; judgment and costs against Second Respondent and his solicitor as set out in orders.
Legal Topics
['breach of Lease' 'compensation' 'guarantor Liability' 'legal Practitioner Personal Costs' 'costs Discretion in Tribunal' 'reasonable Prospects of Success']
['retail Leases' 'contract Law' 'costs'] ['breach of Lease' 'compensation' 'guarantor Liability' 'legal Practitioner Personal Costs' 'costs Discretion in Tribunal' 'reasonable Prospects of Success']

Case Brief

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Procedural Posture

Tribunal Compensation Claim for Breach of Retail Lease / Final Decision on Liability, Quantum and Costs

Legal Issues

  1. 1 ['Whether the Respondents breached the lease and are liable for rent, repairs, and cleaning costs' 'Whether the Second Respondent, as guarantor, is liable for sums due under the lease' 'Whether compensation for specific items claimed is allowable' "Whether applicants are entitled to their costs, including personal costs against the respondent's solicitor"]

Ratio Decidendi

The Second Respondent as guarantor is liable for the quantified losses from the tenant's breach as proved (unpaid rent, signage reinstatement, partial cleaning/rectification), but only where specifically proved; speculative claims are disallowed. Personal costs order against the respondent's solicitor is justified as the strike-out motion lacked reasonable prospects of success within the meaning of s 348 Legal Profession Act 2004, and Tribunal has jurisdiction to make such an order in clear cases.

Court Disposition

Application against First Respondent dismissed; judgment and costs against Second Respondent and his solicitor as set out in orders.

Orders

  • ['The Application against the First Respondent is dismissed.' 'The Second Respondent is to pay the sum of $14,137.46 to the Applicants.' "The Second Respondent is to pay the Applicants' costs of these proceedings upon a party/party basis as agreed or assessed, but not to include costs incurred by the Applicants in...