Chung -v- Nichibi International Pty Limited & ors [2002] NSWADT 72

Chung -v- Nichibi International Pty Limited & ors [2002] NSWADT 72

Nichibi International Pty Limited and David Wei Shao were liable for the agreed arrears to 30 June 2001 and for rent during the relevant holding over periods, with interest only from 30 June onwards; Takashi Sato was not liable as guarantor because the document did not establish liability as his or her deed and no consideration was otherwise shown. Enforcement was stayed because the related matter number 015078 remained on foot and evidence of payment of stamp duty was required.

Jurisdiction
Australia
Judgment Date
06 May 2002
Procedural Posture
Claim for Payment of Money Costs Interest; Retail Leases Division / Principal Matter; Ex Parte Hearing
Outcome
Application allowed in part against the Respondent company and David Wei Shao; application against Takashi Sato dismissed; enforcement stayed; no order for costs.
Legal Topics
['outstanding Rent' 'holding Over' 'guarantor Liability' 'interest' 'costs' 'stay of Enforcement']
['retail Leases' 'commercial Tenancy' 'debt Recovery'] ['outstanding Rent' 'holding Over' 'guarantor Liability' 'interest' 'costs' 'stay of Enforcement']

Case Brief

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Procedural Posture

Claim for Payment of Money Costs Interest; Retail Leases Division / Principal Matter; Ex Parte Hearing

Legal Issues

  1. 1 ['Whether the respondent company was liable for outstanding rent and rent during holding over under the lease arrangements.' 'Whether David Wei Shao was bound personally as guarantor or by the 16 July 2001 agreement.' 'Whether Takashi Sato was liable as guarantor.' 'Whether interest was payable on the arrears and from what date.' 'Whether costs should be ordered.' 'Whether enforcement should be stayed pending the related matter number 015078 and evidence of payment of stamp duty.']

Ratio Decidendi

Nichibi International Pty Limited and David Wei Shao were liable for the agreed arrears to 30 June 2001 and for rent during the relevant holding over periods, with interest only from 30 June onwards; Takashi Sato was not liable as guarantor because the document did not establish liability as his or her deed and no consideration was otherwise shown. Enforcement was stayed because the related matter number 015078 remained on foot and evidence of payment of stamp duty was required.

Court Disposition

Application allowed in part against the Respondent company and David Wei Shao; application against Takashi Sato dismissed; enforcement stayed; no order for costs.

Orders

  • ['The Respondent is to pay the Applicant (pursuant to Section 72 (i) (a) by way of debt, the sum of $53,521.36.' 'Pursuant to Section 72 A (i) interest at the rate of 9.5% on the sum of $5,230.68 for 28 days and on the amount of $11,955.84 plus $5,230.68, ($17186.52) making the total interest $834.38 up to the date...