Frank and Ena Busic, Ivan and Veselka Milicevic v Dolly Tokoregi and the Estate of the late Roger Franchi [2018] NSWCATCD 41

Civil and Administrative Tribunal New South Wales Medium Neutral Citation: Frank and Ena Busic, Ivan and Veselka Milicevic v Dolly Tokoregi and the Estate of the late Roger Franchi [2018] NSWCATCD 41 Hearing dates: 27 March 2018 Date of orders: 13 August 2018 Decision date: 13 August 2018 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: Application is dismissed Catchwords: Guarantee under Law Society Commercial Lease Clause 13 Cases Cited: Ankar Pty Ltd v National Westminister Finance (Australia) Pty Ltd (1987) HCA 15 Bofinger v Kingsway Group Ltd [2009] HCA 44 Brambles Holdings Ltd v Bathurst City Council [2001] NSW CA 61 Meriton Properties Pty Ltd v DCM Leases-5 Pty Ltd [2009] NSW ADT 121 Plant v Meriton Properties Pty Ltd (2009) NSW AD TAP 62 Zang v BM Sydney Building Materials Pty Ltd (2016) NSWCA166 [47] Category: Principal judgment Parties: Frank and Ena Busic and Ivan and Veselka Milicevic (applicants) Dolly Tokoragi (respondent) Estate of the late Roger Franchi (second respondent) Representation: Mark Marando (applicants) Gells Lawyers (first respondent) File Number(s): COM 16/44117 Publication restriction: Nil

REASONS FOR DECISION 1. Frank and Ena Busic and Ivan and Veleska Milicevic (the applicants) own the premises at XXX XXX Road, Drummoyne (the premises). The applicants granted a lease to New Design Centres Pty Ltd (New Design) for a term of five years is commencing on 1 April 2013 and ending on 31 March 2018 (the Lease). 2. New Design which sells kitchens and kitchen fit outs went into liquidation on 17 August 2016. Dolly Tokoragi (first respondent) and her late husband Roger Franchi were the directors of New Design and were equal shareholders. 3. The applicants seek to enforce, against the first respondent the obligations that the applicants claimed were assumed by the first respondent as a guarantor under the Lease (the Guarantee).