Heriot Pty Ltd v Choe [2021] NSWCATCD 160

Heriot Pty Ltd v Choe [2021] NSWCATCD 160

The Tribunal held that the guarantor's defences failed. The lease commenced on 1 August 2018, the lessee defaulted in paying rent, and the respondents guaranteed the lessee's obligations. The alleged utilities representations were not established in the terms alleged and were not relied upon; the Lessor's Disclosure Statement did not justify rescission or avoidance; the 18 October 2018 termination notice was ineffective; the Conveyancing Act provisions did not render the registered lease void or invalid; no utilities covenant was implied; the guarantee was binding because the attesting witness was present and, in any event, the guarantee was supported by valuable consideration; no...

Jurisdiction
Australia
Judgment Date
10 February 2021
Procedural Posture
Retail Lease Claim Under the Retail Leases Act 1994 (nsw) / Principal Judgment After Hearing; Amended Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013
Outcome
Application allowed to the Tribunal's jurisdictional limit; first and second respondents held jointly and severably liable to the applicant for $750,000.00.
Legal Topics
['retail Lease Guarantee' 'mitigation of Loss' 'misleading and Deceptive Conduct' 'lessor Disclosure Statement' 'termination Under S11(2) of the Retail Leases Act 1994 (nsw)' 'unconscionable Conduct' 'undue Influence' 'validity of Lease' 'attestation of Guarantee']
['leases and Tenancies' 'retail Leases' 'guarantees'] ['retail Lease Guarantee' 'mitigation of Loss' 'misleading and Deceptive Conduct' 'lessor Disclosure Statement' 'termination Under S11(2) of the Retail Leases Act 1994 (nsw)' 'unconscionable Conduct' 'undue Influence' 'validity of Lease' 'attestation of Guarantee']

Case Brief

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Procedural Posture

Retail Lease Claim Under the Retail Leases Act 1994 (nsw) / Principal Judgment After Hearing; Amended Pursuant to Section 63 of the Civil and Administrative Tribunal Act 2013

Legal Issues

  1. 1 ['Whether the second respondent was liable under the guarantee in the lease.' "Whether alleged utilities representations or the Lessor's Disclosure Statement established misleading and deceptive conduct warranting rescission or avoidance of the guarantee." 'Whether the lessee validly terminated the lease by notice under s11(2) of the Retail Leases Act 1994 (NSW).' 'Whether the lease was invalid because it did not contain a deposited plan of subdivision, subdivision certificate or survey.' 'Whether provision of active metered gas and electricity connections was an implied covenant of the lease.' "Whether the guarantee was unenforceable because the guarantor's signature was not attested in his presence." 'Whether the lessor engaged in unconscionable conduct or the guarantor signed under undue influence of the first respondent.' 'Whether the lessor failed to mitigate its loss after re-entry and termination.' "Whether the lessor proved loss and damage at least to the Tribunal's jurisdictional limit."]

Ratio Decidendi

The Tribunal held that the guarantor's defences failed. The lease commenced on 1 August 2018, the lessee defaulted in paying rent, and the respondents guaranteed the lessee's obligations. The alleged utilities representations were not established in the terms alleged and were not relied upon; the Lessor's Disclosure Statement did not justify rescission or avoidance; the 18 October 2018 termination notice was ineffective; the Conveyancing Act provisions did not render the registered lease void or invalid; no utilities covenant was implied; the guarantee was binding because the attesting witness was present and, in any event, the guarantee was supported by valuable consideration; no...

Court Disposition

Application allowed to the Tribunal's jurisdictional limit; first and second respondents held jointly and severably liable to the applicant for $750,000.00.

Orders

  • ['The decision issued on 10 February 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013.' 'Jeong Hwan Choe and Jian Ming Li are jointly and severably liable to Heriot Pty Ltd in the sum of $750,000.00 such amount to be paid immediately.' 'In the event that a party wishes to...