Gumland v Duffy [2006] NSWSC 10

New South Wales Supreme Court

CITATION : Gumland v Duffy [2006] NSWSC 10

HEARING DATE(S) : 21, 22 July 2005; 19, 20, 21 September 2005

JUDGMENT DATE : 21 February 2006

JURISDICTION : Equity Divison

JUDGMENT OF : Associate Justice Macready at 1

CATCHWORDS : Contract - construction of terms of contract and its variation to determine amount of rent payable. - Penalties. Held that clauses merely provided for payments of past monies due and thus not a penalty. - Discharge. Did various breaches give a right to terminate? Whether such breaches were waived. - Damages. Whether a claim for damages for loss of bargain in respect of a lease arose. - Landlord and Tenant. Construction of use and occupation covenants. - Termination of Tenancy. Whether there was a surrender of sub-lease and creation of new tenancy as a result of sub-tenant deciding to pay half the holding over rent. - Guarantee and indemnity. Discharge of surety. Failure to include a term required by the principal contract to be included in a guaranteed sub-lease discharged surety. Held that it did. - Indemnities. Whether indemnity responded to situation where the need for indemnity arose from a breach of contract by the person entitled to the benefit of the guarantee. Held that it did not. - Construction of term of operation of guarantee.

PARTIES : Gumland Property Holding Pty Limited v Duffy Bros Fruit Markets (Campbelltown) Pty Limited and 2 Ors

FILE NUMBER(S) : SC 50066/2005

J. West QC and NJ Kidd for plaintiff COUNSEL : D. Cassidy QC and R. Keller for 1st defendant G. Turner for 2nd and 3rd defendants

PricewaterhouseCoopers Legal for plaintiff SOLICITORS : Davis Legal for 1st defendant Curwood & Partners for 2nd and 3rd defendants