NSW Caselaw
Reported Decision : (2004) NSW ConvR 56-095
New South Wales Court of Appeal
CITATION : Forte-Senes Hotels Pty Ltd v Austcorp No 473 Pty Ltd & Ors [2004] NSWCA 31 HEARING DATE(S) : 11 February 2004 JUDGMENT DATE : 25 February 2004
JUDGMENT OF : Meagher JA at 1; Giles JA at 2; at 33 DECISION : (1) Appeal allowed; (2) Judgments and orders for costs made below set aside, and in lieu thereof: (i) On the plaintiff's claim, judgment for the plaintiff for $118,634.51 to take effect on 20 December 2002; (ii) Cross-claim dismissed; and (iii) Defendants/cross-claimant pay the plaintiff/cross-defendant's costs of the claim and cross-claim; (3) Respondents pay the appellant's costs of the appeal and have a certificate under the Suitors Fund Act if otherwise qualified.
CATCHWORDS : Lease - intention to assign - lessee goes out of possession and proposed assignee goes into possession - lessor to arrange assignment - does not do so - proposed assignee gives up possession - lessee does not take up possession - lessor places premises with agent for reletting - whether lease surrendered by operation of law because lessor decided to take up new relationship of lessor and lessee with proposed assignee - lessee unaware of this and still contemplated assignment - whether lease surrendered by operation of law when lessee did not take up possession and premises placed with agent - no surrender in either circumstances - guarantee in lease - deletion of a sub-clause in guarantee - whether regard could be had to the deletion - whether deletion showed guarantors not to be liable in the event of an assignment of the lease - no as to both. Chan v Cresdon Pty Ltd (1989) 168 CLR 242; CASES CITED : 193 Crown Street Pty Ltd v Hoare (1969) 1 NSWR 193; Konica Business Machines Australia Pty Ltd v Tizine Pty Ltd (1992) 26 NSWLR 687; NZI Capital Corporation v Child (1991) 23 NSWLR 481. Forte-Senes Hotels Pty Ltd - Appellant PARTIES : Austcorp No 473 Pty Ltd - First Respondent Peter George - Second Respondent Alan Edward Andrew Dobson - Third Respondent FILE NUMBER(S) : CA 40070/03 COUNSEL : M Einfeld QC & P Strasser - Appellant P Hallen SC - Respondents SOLICITORS : Milne Berry & Berger - Appellant Uther Webster - Respondents
We try to embed the page this law was scraped from. If the site blocks framing, you still get the link and a local excerpt.
Last checked with source on —
Checking whether the official page can be embedded…
Plain-English simplify of this law: a short summary, key points, and both sides of the argument. Generated on first view via Replicate, then cached. Vote on what helps your study.
No study brief is cached for this law yet. Sign up to generate a plain-English brief.
Sign up to generate