Garfile Pty Ltd (ACN 057 990 075) (Receiver and Manager Appointed) v Illuminati Corporation Pty Ltd (ACN 137 331 769) (In Liquidation) [2013] NSWDC 109

Garfile Pty Ltd (ACN 057 990 075) (Receiver and Manager Appointed) v Illuminati Corporation Pty Ltd (ACN 137 331 769) (In Liquidation) [2013] NSWDC 109

The court was satisfied that the second defendant knew the proceedings were listed for hearing and that it was appropriate to proceed in her absence. The plaintiff proved that the Lease was executed with the second defendant as Guarantor, that the Lessee breached the Lease by failing to pay rent and outgoings and abandoning the premises, and that the second defendant failed to pay under the Guarantee and Indemnity. The Guarantee and Indemnity continued despite termination of the Lease, and the plaintiff proved its recoverable loss, legal costs and interest totalling $347,547.87.

Jurisdiction
Australia
Judgment Date
18 July 2013
Procedural Posture
Civil Proceedings for Damages Under a Guarantee and Indemnity in a Commercial Lease / Hearing on All Issues of Liability and Quantum Against the Second Defendant, Conducted in Her Absence
Outcome
Judgment for the plaintiff against the second defendant in the sum of $347,547.87.
Legal Topics
['proceeding in Absence of a Party' 'repudiatory Breach of Commercial Lease' 'guarantor Liability' 'recovery of Rent, Outgoings, Legal Costs and Interest']
['civil Procedure' 'contract Law' 'leases' 'guarantees and Indemnities'] ['proceeding in Absence of a Party' 'repudiatory Breach of Commercial Lease' 'guarantor Liability' 'recovery of Rent, Outgoings, Legal Costs and Interest']

Case Brief

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Procedural Posture

Civil Proceedings for Damages Under a Guarantee and Indemnity in a Commercial Lease / Hearing on All Issues of Liability and Quantum Against the Second Defendant, Conducted in Her Absence

Legal Issues

  1. 1 ['Whether the hearing should proceed in the absence of the second defendant after she failed to appear.' 'Whether the second defendant was liable under the Guarantee and Indemnity in the Lease.' 'Whether the plaintiff proved the amounts claimed for lost rent, outgoings, legal costs and interest.']

Ratio Decidendi

The court was satisfied that the second defendant knew the proceedings were listed for hearing and that it was appropriate to proceed in her absence. The plaintiff proved that the Lease was executed with the second defendant as Guarantor, that the Lessee breached the Lease by failing to pay rent and outgoings and abandoning the premises, and that the second defendant failed to pay under the Guarantee and Indemnity. The Guarantee and Indemnity continued despite termination of the Lease, and the plaintiff proved its recoverable loss, legal costs and interest totalling $347,547.87.

Court Disposition

Judgment for the plaintiff against the second defendant in the sum of $347,547.87.

Orders

  • ['Second defendant, Natalie Sabbah, called three times outside Court 13D at 10:05am - no appearance.' 'Second defendant, Natalie Sabbah, called three times a second time outside Court 13D at 10:32am - no appearance.' 'Grant leave to the plaintiff to file in court an affidavit of Robert Michael Brennan sworn 16 July...