Pinaki Holdings Pty Limited v HSDCTLVMB Pty Limited & Anor; Pinaki Holdings Pty Limited v David John Byrne & Anor [2019] NSWDC 855

District Court New South Wales

Medium Neutral Citation: Pinaki Holdings Pty Limited v HSDCTLVMB Pty Limited & Anor; Pinaki Holdings Pty Limited v David John Byrne & Anor [2019] NSWDC 855 Hearing dates: 25-29 November 2019, 2-6 December 2019 Date of orders: 06 December 2019 Decision date: 06 December 2019 Jurisdiction: Civil Before: Neilson DCJ Decision: See [137], [138] Catchwords: LANDLORD AND TENANT. Tenant vacates property and ceases to pay rent 13 months before end of term of lease. Rent for whole 13 months recoverable.

GUARANTEE. LIABILITY OF GUARANTORS. Former directors of tenant had given unlimited guarantee for tenant's liabilities. Whether liability of guarantors affected by a change of position brought about by tenant's dealings with a third party.

INTEREST. Whether stipulated interest rate of 12% per annum in lease was a penalty.

CONTRACT. SALE OF BUSINESS AND CERTAIN ASSETS OF BUSINESS. Tenant agrees to sell business and certain assets of business to a third party ('TP'). What assets sold. Whether parties to contract of sale could vary its terms.

EQUITY. EQUITABLE ASSIGNMENT. Whether an equitable assignment of tenant's lease to TP. TP enters into possession of demised premises. Whether TP equitable assignee or weekly tenant.

COMPANY LAW. Whether TP or its director liable to landlord. Whether weekly tenancy between landlord and company, or landlord and director personally.

TRESPASS TO LAND. Removal of certain fittings from demised property by TP.

DAMAGES. MITIGATION. Whether landlord failed to mitigate its losses.