Abigroup Ltd v Sandtara Pty Ltd

Case [2002] NSWCA 45


CITATION: Abigroup Limited v Sandtara Pty Limited [2002] NSWCA 45
FILE NUMBER(S): CA 40209/01
HEARING DATE(S): 14 February 2002
JUDGMENT DATE:
1 March 2002

PARTIES :


Abigroup Limited (Appellant) v Sandtara Pty Limited (Respondent)
JUDGMENT OF: Stein JA at 1; Giles JA at 26; Young CJ in Eq at 31
LOWER COURT JURISDICTION : District Court
LOWER COURT
FILE NUMBER(S) :
DC 6477/1998
LOWER COURT
JUDICIAL OFFICER :
Patten DCJ
COUNSEL: J N West QC/A J Ogborne (Appellant)
M L D Einfeld QC/F P Donohoe (Respondent)
SOLICITORS: Clayton Utz (Appellant)
Verekers (Respondent)
CATCHWORDS: COMMERCIAL LEASE - contract of guarantee - tenant went into liquidation - action by landlord against guarantor - orders for costs made - whether respondent entitled to recover costs pursuant to contractual indemnity provision - Supreme Court Act 1970 (NSW), s 76 - Supreme Court Rules (NSW), Pt 52 r 8 - res judicata - anshun estoppel - abuse of process - construction of the terms of contract - cross-appeal - interest on costs - D
LEGISLATION CITED: Supreme Court Act 1970 (NSW), s 76
Supreme Court Rules (NSW), Pt 52 r 8
District Court Act 1973 (NSW), s 83A
CASES CITED:
AGC (Advances) Ltd v West (1984) 5 NSWLR 301
Barnett v Eccles Corporation [1900] 2 QB 423
Born v Turner [1900] 2 Ch 211
Drinkwater v Caddyrack Pty Ltd (Unreported, Supreme Court of New South Wales, 25 September 1999)
Elders Executors and Trustees & Executor Co Ltd v Eagle Star Nominees Ltd (1986) 4 BPR 9205
Gomba Holdings Ltd v Minories Finance [1993] Ch 171
GPI Leisure Corp Ltd v Yuill (Unreported, 6 August 1997)
Great Western Railway Co v Fisher [1905] 1 Ch 316
Hotham v The East India Company (1787) 1 Term Rep 638; 99 ER 1295
In Re Shanahan (1941) 58 WN (NSW) 132
Jones v Barkley (1781) 2 Dougl 684; 99 ER 434
Kyrwood v Drinkwater [2000] NSWCA 126
Leda Holdings Pty Ltd v Oraka Pty Ltd [1999] FCA 444
Mackay v Dick (1991) 6 App Cas 251
Maher v Network Finance Ltd (1986) 4 NSWLR 694
Mahoney v Lindsay (1980) 55 ALJR 118
Mansfield v Robinson [1928] 2 KB 353
Peter Turnbull & Co Pty Ltd v Mundus Trading Co (Australasia) Pty Ltd (1954) 90 CLR 235
Port of Melbourne Authority v Anshun Pty Ltd (1981) 147 CLR 589
Re Elders Trustee and Executor Co Ltd and EG Reeves Pty Ltd (Unreported, Federal Court of Australia, Gummow J, 12 March 1988)
Sandtara Pty Ltd v Abigroup Limited (Unreported, Supreme Court of New South Wales, Brownie J, 4 September 1992)
Shercliff v Engadine Acceptance Corp Pty Ltd (No 2) (1982) 3 BPR 9207
The Ikarian Reefer (No 2) [1999] 2 LI Rep 621
The Mildenhall Bell Case (1469) YB 9 Ed iV (Easter Term 4A)
DECISION: Appeal and Cross-Appeal dismissed with costs






                          CA 40209/01
                          DC 6477/98
                          STEIN JA
                          GILES JA
                          YOUNG CJ in EQ
                          Friday, 1 March 2002

ABIGROUP LIMITED v SANDTARA PTY LIMITED


The respondent (Sandtara) was the lessor to…

Continue reading Abigroup Ltd v Sandtara Pty Ltd

Sign in free to access the full text

Details
AGLC
Abigroup Ltd v Sandtara Pty Ltd [2002] NSWCA 45
Case
[2002] NSWCA 45
Decision Date

CaseChat Overview and Summary

Abigroup Ltd (the appellant) and Sandtara Pty Ltd (the respondent) were involved in a dispute arising from a commercial lease and a related contract of guarantee. The tenant under the lease had gone into liquidation, leading the landlord (presumably Abigroup) to pursue the guarantor (presumably Sandtara) for outstanding amounts. The Supreme Court of New South Wales had made orders for costs, and the central issue on appeal concerned whether the respondent was entitled to recover those costs pursuant to a contractual indemnity provision.

The court was required to determine several legal issues. These included the proper construction of the terms of the contract of guarantee, particularly the indemnity provision relating to costs. The court also had to consider whether principles of *res judicata* or *Anshun* estoppel applied to prevent the respondent from relying on the indemnity provision, and whether the respondent's claim constituted an abuse of process. The appeal also involved a cross-appeal, and the court needed to determine issues relating to interest on costs.

The court's reasoning focused on the interpretation of the indemnity clause within the contract of guarantee. It was held that the clause was sufficiently broad to encompass the costs incurred by the respondent in the proceedings. The court found that the respondent was entitled to recover its costs pursuant to this contractual indemnity. Furthermore, the court determined that neither *res judicata* nor *Anshun* estoppel operated to bar the respondent's claim, nor was the claim an abuse of process. The appeal and cross-appeal were dismissed.

Orders

Orders of the court

Appeal and Cross-Appeal dismissed with costs

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.