Dykes and Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 26

Dykes and Wildie v Heatherway Pty Ltd (RLD) [2007] NSWADTAP 26

The May 2000 agreement did not extinguish or reduce the appellants' liability as guarantors under the 1998 lease because it was not sufficiently specific, appellants were not parties, and its terms did not cover the arrears accrued prior to 1 July 2000; accordingly, the guarantee remained in force until that date. Interest was only properly awarded for two years due to the respondent’s delay in prosecuting proceedings.

Parties
First Appellant: Peter James Dykes; Second Appellant: Paul Richard Wildie; Respondent: Heatherway Pty Ltd
Jurisdiction
Australia
Judgment Date
22 May 2007
Procedural Posture
Appeal / Appeal Panel Decision
Outcome
Appeal allowed in part
Legal Topics
Retail Leases, Guarantor Liability, Interest on Judgment, Contract Interpretation
Commercial Law Property Law Retail Leases Guarantor Liability Interest on Judgment Contract Interpretation

Case Brief

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Parties

Peter James Dykes

First Appellant

Paul Richard Wildie

Second Appellant

Heatherway Pty Ltd

Respondent

Procedural Posture

Appeal / Appeal Panel Decision

Legal Issues

  1. 1 Whether the May 2000 agreement extinguished the appellants' liability as guarantors under the 1998 lease
  2. 2 Whether interest should be awarded for the entire period of delay in prosecuting the claim

Ratio Decidendi

The May 2000 agreement did not extinguish or reduce the appellants' liability as guarantors under the 1998 lease because it was not sufficiently specific, appellants were not parties, and its terms did not cover the arrears accrued prior to 1 July 2000; accordingly, the guarantee remained in force until that date. Interest was only properly awarded for two years due to the respondent’s delay in prosecuting proceedings.

Court Disposition

Appeal allowed in part

Orders

  • In substitution for Order 1 of the Tribunal's orders, the Respondents/Cross Applicants are jointly and severally liable to pay to the Applicant/Cross Respondent the sum of $101,261.50