Irresistable Frocks v Sparbac and Roche [2003] NSWADT 241

Irresistable Frocks v Sparbac and Roche [2003] NSWADT 241

Irresistible was not obliged under the Lease to remove the fitout or pay Roche the cost of removal. On the balance of probabilities, no demand to remove the fitout was made before 30 June 2002, and in any event a requirement under clause 19.1 was a communication in connection with the Lease that had to be in writing under clause 24.1(b). Clause 19.7 did not establish that Roche owned the fitout or that Irresistible's sale of it was conversion. Because no breach by Irresistible justified a call on the guarantee, Sparbac and Roche were liable to repay the amount obtained. Roche's conduct in procuring the call on the guarantee without notice, despite uncertain entitlement to compensation and...

Jurisdiction
Australia
Judgment Date
10 November 2003
Procedural Posture
Claim for Payment of Money Unconscionability / Principal Matter
Outcome
Irresistible succeeded on the principal application; each respondent was held liable to pay the principal sum and interest. Roche's cross application was dismissed. Costs submissions were to be filed if costs were not agreed.
Legal Topics
['retail Shop Lease' 'bank Guarantee' "removal of Lessee's Fitout" 'assignment of Guarantee' 'unconscionable Conduct by Lessor' 'cross Application for Damages or Conversion']
['retail Leases' 'contract Law' 'unconscionable Conduct'] ['retail Shop Lease' 'bank Guarantee' "removal of Lessee's Fitout" 'assignment of Guarantee' 'unconscionable Conduct by Lessor' 'cross Application for Damages or Conversion']

Case Brief

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Procedural Posture

Claim for Payment of Money Unconscionability / Principal Matter

Legal Issues

  1. 1 ['Whether Irresistible was bound by an express or implied term of the Lease to remove the fitout or pay Roche the cost of removing it.' 'Whether Roche or Sparbac was entitled to call on the bank guarantee for the cost of removal of the fitout or alleged conversion of the fitout.' 'Whether an oral requirement to remove the fitout satisfied the notice requirements of the Lease.' "Whether Roche's conduct in procuring the call on the guarantee was unconscionable within the meaning of s 62B of the Retail Leases Act 1994." "Whether Roche's cross application for damages, retention of the guarantee amount, declarations, or costs should be granted."]

Ratio Decidendi

Irresistible was not obliged under the Lease to remove the fitout or pay Roche the cost of removal. On the balance of probabilities, no demand to remove the fitout was made before 30 June 2002, and in any event a requirement under clause 19.1 was a communication in connection with the Lease that had to be in writing under clause 24.1(b). Clause 19.7 did not establish that Roche owned the fitout or that Irresistible's sale of it was conversion. Because no breach by Irresistible justified a call on the guarantee, Sparbac and Roche were liable to repay the amount obtained. Roche's conduct in procuring the call on the guarantee without notice, despite uncertain entitlement to compensation and...

Court Disposition

Irresistible succeeded on the principal application; each respondent was held liable to pay the principal sum and interest. Roche's cross application was dismissed. Costs submissions were to be filed if costs were not agreed.

Orders

  • ['Each Respondent is liable to pay to the Applicant the sum of $21,818.63, comprising a principal sum of $20,085.25 and interest totalling $1,733.38.' "The Second Respondent's cross application is dismissed." 'In the absence of agreement on the matter, each party is to file written submissions on the matter of costs...