Frank and Ena Busic, Ivan and Veselka Milicevic v Dolly Tokoregi and the Estate of the late Roger Franchi [2018] NSWCATCD 41

Frank and Ena Busic, Ivan and Veselka Milicevic v Dolly Tokoregi and the Estate of the late Roger Franchi [2018] NSWCATCD 41

The Tribunal found that clause 13.1 of the Lease required the guarantor to execute the lease in their personal capacity to be liable as guarantor. The first respondent only signed the lease in her capacity as director, not as guarantor. Therefore, the guarantee did not bind her personally, and she was not liable for the lessee's obligations under the lease.

Parties
Applicant: Frank and Ena Busic; Applicant: Ivan and Veselka Milicevic; Respondent: Dolly Tokoragi; Respondent: Estate of the late Roger Franchi
Jurisdiction
Australia
Judgment Date
13 August 2018
Procedural Posture
Civil / Final Decision
Outcome
application dismissed
Legal Topics
Guarantee, Personal Liability of Guarantor, Execution of Lease, Construction of Guarantee Clauses
Contract Law Commercial Leases Guarantee Personal Liability of Guarantor Execution of Lease Construction of Guarantee Clauses

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Parties

Frank and Ena Busic

Applicant

Ivan and Veselka Milicevic

Applicant

Dolly Tokoragi

Respondent

Estate of the late Roger Franchi

Respondent

Procedural Posture

Civil / Final Decision

Legal Issues

  1. 1 Whether Dolly Tokoragi is liable as guarantor under the lease for New Design Centres Pty Ltd's obligations
  2. 2 Whether execution of the lease by Dolly Tokoragi as a director binds her in her personal capacity as guarantor under clause 13.1
  3. 3 Whether a defect in execution invalidates liability under the guarantee

Ratio Decidendi

The Tribunal found that clause 13.1 of the Lease required the guarantor to execute the lease in their personal capacity to be liable as guarantor. The first respondent only signed the lease in her capacity as director, not as guarantor. Therefore, the guarantee did not bind her personally, and she was not liable for the lessee's obligations under the lease.

Court Disposition

application dismissed

Orders

  • Application is dismissed.