Handcock & ors v Salemon Enterprises Pty Ltd (in Liq) [2008] NSWADT 316

Handcock & ors v Salemon Enterprises Pty Ltd (in Liq) [2008] NSWADT 316

The Tribunal has jurisdiction to hear and determine the proceedings against the guarantor. The terms of the lease (clauses 13.2, 13.3, and 13.4) allow the applicant to proceed directly against the guarantor for moneys due, without first having to recover from the tenant or obtain adjudication of the debt in liquidation. The liquidation of the tenant company does not extinguish the applicant's claim against the guarantor nor does it preclude the Tribunal from determining the guarantor’s liability.

Jurisdiction
Australia
Judgment Date
28 November 2008
Procedural Posture
Notice of Motion (strike Out/dismissal) / Interlocutory Decision—jurisdiction and Dismissal Application
Outcome
Notice of Motion dismissed
Legal Topics
['guarantor Liability' 'lease Obligations' 'liquidation' 'jurisdiction of Tribunal']
['commercial Law' 'property Law' 'guarantees'] ['guarantor Liability' 'lease Obligations' 'liquidation' 'jurisdiction of Tribunal']

Case Brief

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Procedural Posture

Notice of Motion (strike Out/dismissal) / Interlocutory Decision—jurisdiction and Dismissal Application

Legal Issues

  1. 1 ['Whether the Tribunal has jurisdiction to hear and determine the proceedings against the guarantor after transfer from the Local Court' 'Does the liquidation of the tenant company prevent recovery against the guarantor under the lease guarantee?' 'Whether the lease terms allow the creditor (landlord) to proceed directly against the guarantor without first exhausting remedies against the tenant']

Ratio Decidendi

The Tribunal has jurisdiction to hear and determine the proceedings against the guarantor. The terms of the lease (clauses 13.2, 13.3, and 13.4) allow the applicant to proceed directly against the guarantor for moneys due, without first having to recover from the tenant or obtain adjudication of the debt in liquidation. The liquidation of the tenant company does not extinguish the applicant's claim against the guarantor nor does it preclude the Tribunal from determining the guarantor’s liability.

Court Disposition

Notice of Motion dismissed

Orders

  • ['The Notice of Motion filed by the Second Respondent 14 July 2008 is dismissed.' 'The costs of the Applicant in relation to that Notice of Motion are reserved.' 'It is declared that the Tribunal has jurisdiction to hear and determine the proceedings instituted in the Penrith Local Court No. 1074 of 2007 and...