Padstow Corporation Pty Ltd v Fleming (No 3) [2013] NSWSC 24

Supreme Court New South Wales

Medium Neutral Citation: Padstow Corporation Pty Ltd v Fleming (No 3) [2013] NSWSC 24 Hearing dates: 19 November 2012 Decision date: 30 January 2013 Jurisdiction: Equity Division - Revenue List Before: Gzell J Decision: Guarantee unlimited. Damages to be calculated on basis no GST. Entitled to diminution in value of land at sale plus loss of rent to date of sale. Small discount for possibility of non-removal as guarantor Catchwords: GUARANTEE AND INDEMNITY - Actions against surety - damages - whether limited to amount of bond for three month's rent - whether calculated on basis no GST on court awards - whether entitled to diminution in value of land on sale plus loss of rent to end of lease - damages for breach of agreement to remove a guarantor - amount paid to settle action on guarantee less discount for possibility that might not have been removed Cases Cited: Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15; (1987) 162 CLR 549 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 Padstow Corporation Pty Ltd v Fleming (No 2) [2011] NSWSC 1572 Texts Cited: M Y Bearman and DJ McInerney, CGT, GST on Judgments and Settlements (2008) Victorian Tax Bar GST Ruling GSTR 2001/4 Category: Separate question Parties: Padstow Corporation Pty Ltd (Plaintiff) Thomas John Fleming (Second Defendant) Harold O'Brien (Third Defendant) Thomas Maurice Fleming (First Defendant) Alan Sher (Third Cross-Claimant) Robert Minter (Cross-Defendant to Fourth Cross-Claim) Representation: Counsel: J Sleight (Plaintiff) L Thomas (First Defendant) Solicitors: Neville and Hourn Legal (Plaintiff) Addisons Lawyers (First Defendant) Cordato Partners (Second Defendant) File Number(s): SC 2008/279166