3JM Pty Ltd v Turnbull [2012] NSWDC 1

District Court New South Wales

Medium Neutral Citation: 3JM Pty Ltd v Turnbull [2012] NSWDC 1 Hearing dates: 6, 7, 8, and 9 September 2011 Decision date: 20 January 2012 Jurisdiction: Civil Before: Levy SC DCJ Decision: 1.Verdict and judgment for the second defendant; 2.The plaintiff is to pay the second defendant's costs on the ordinary basis unless otherwise ordered; 3.The exhibits may be returned; 4.Liberty to apply on 7 days notice if further orders are required. [Note: The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.] Catchwords: LEASES & GUARANTEES - claim by lessor against guarantor of lease - unpaid rent and outgoings of commercial premises and cost of clearing land after re-entry by the lessor for alleged breaches of the lease - whether ambiguity established requiring construction of lease - whether claims made out - whether claimed losses relevantly caused by breach of lease Legislation Cited: Civil Liability Act 2002, s 5D, s 5E Uniform Civil Procedure Rules 2005, Sch 7 cl 5(c) Cases Cited: Angel v Hawkesbury Council [2008] NSWCA 130 Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 33 Dashwood v Magniac [1891] 3 Ch 30 Masterton Homes Pty Limited v Palm Assets Pty Limited [2008] NSWSC 274 Peppers Hotel Management Pty Ltd v Hotel Capital Partners Ltd [2004] NSWCA 114 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd [2004] HCA 52; (2004) 219 CLR 165 Category: Principal judgment Parties: 3JM Pty Ltd (Plaintiff) Bros Bins Pty Ltd (First defendant - a deregistered company) Joshua Herschall Ernest Turnbull (Second defendant - guarantor) Representation: Mr CD Freeman (Plaintiff) (No appearance for first defendant) Mr J Turnbull in person Maurice Harrison & Associates (Plaintiff) (No appearance for first defendant) Mr J Turnbull in person File Number(s): 2010/328964