Heriot Pty Ltd v Choe - [2021] NSWCATCD 160

Civil and Administrative Tribunal

New South Wales

Medium Neutral Citation: Heriot Pty Ltd v Choe [2021] NSWCATCD 160
Hearing dates: 7 and 28 August 2020
Date of orders: 10 February 2021 [amended 12 February 2021]
Decision date: 10 February 2021
Jurisdiction: Consumer and Commercial Division
Before: D Goldstein, Senior Member
Decision:
The decision issued on 10 February 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type)
1. Jeong Hwan Choe and Jian Ming Li are jointly and severably liable to Heriot Pty Ltd in the sum of $750,000.00 such amount to be paid immediately.
2. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.
3. The costs respondent will have 14 days after the date he or it receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
4. The cost applicant will have 14 days after the date it or he receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
5. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.
6. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

Catchwords:
LEASES AND TENANCIES — Retail leases — Guarantee — Mitigation

Legislation Cited:
Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)
Retail Leases Act 1994 (NSW)

Cases Cited:
Australian Securities and Investments Commission v Kobelt [2019] HCA 18
Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290

Texts Cited:
Nil

Category: Principal judgment
Parties: Heriot Pty Ltd (Applicant)
Jeong Hwan Choe (First Respondent)
Jian Ming Li (Second Respondent)
Representation:
Counsel:
Mr Boadle (Applicant)
Mr Munro (Second Respondent)
Solicitors:
Baron & Associates (Applicant)
Longton Legal (Second Respondent)

File Number(s): COM 19/55752
Publication restriction: Nil

REASONS FOR DECISION

These proceedings concern a lease that the applicant entered into with Sydney Korean BBQ Pty Ltd (the ‘lessee’) on 1 August 2018 in connection with premises on Campbell Parade, Bondi Beach. The first and second respondents are named as guarantors in the lease document.
The applicant seeks an order against the first and second respondents pursuant to the Retail Leases Act 1994 (the ‘Act’) in the sum of $1,520,161.97, plus costs. The jurisdictional limit of the Tribunal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Heriot Pty Ltd v Choe

Details

AGLC: Heriot Pty Ltd v Choe [2021] NSWCATCD 160
Case: [2021] NSWCATCD 160
Decision Date: 10 February 2021

CaseChat Overview and Summary

Heriot Pty Ltd pursued legal action against Jeong Hwan Choe and Jian Ming Li, seeking enforcement of a guarantee related to a retail lease. The case was heard and determined by the Civil and Administrative Tribunal of New South Wales. The primary dispute centred on the enforceability of the guarantee and the respective obligations of the guarantors under the guarantee, particularly in the context of mitigating losses following a default by the tenant.

The court was required to address several key legal issues. Firstly, whether the guarantors were indeed liable under the terms of the guarantee. Secondly, whether the tenant had taken reasonable steps to mitigate its losses, which could affect the amount recoverable from the guarantors. The court also needed to determine the appropriate amount owed by the guarantors and the procedural steps for any subsequent costs applications.

In its reasoning, the tribunal found that the guarantors were indeed liable under the terms of the guarantee. It concluded that the tenant had not taken sufficient steps to mitigate its losses, thus impacting the amount recoverable. The tribunal held Jeong Hwan Choe and Jian Ming Li jointly and severally liable for the sum of $750,000.00, to be paid immediately. The tribunal further outlined the procedural steps for any subsequent costs applications, including the timeframes for lodging and responding to such applications, and the potential for the application to be determined on the basis of written submissions without a hearing, subject to the parties’ consent.

Orders

Orders of the court

The decision issued on 10 February 2021 is amended pursuant to section 63 of the Civil and Administrative Tribunal Act 2013 and should read as follows: (amendments are shown in bold type)

1. Jeong Hwan Choe and Jian Ming Li are jointly and severably liable to Heriot Pty Ltd in the sum of $750,000.00 such amount to be paid immediately.

2. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application.

3. The costs respondent will have 14 days after the date he or it receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.

4. The cost applicant will have 14 days after the date it or he receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.

5. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing.

6. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.

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

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Medium Neutral Citation:	Heriot Pty Ltd v Choe [2021] NSWCATCD 160
Hearing dates:	7 and 28 August 2020
Date of orders:	10 February 2021 [amended 12 February 2021]
Decision date:	10 February 2021
Jurisdiction:	Consumer and Commercial Division
Before:	D Goldstein, Senior Member
Decision:	The decision issued on 10 February 2021 is amended pursuant to section 63 of the *Civil and Administrative Tribunal Act* 2013 and should read as follows: (amendments are shown in bold type) 1. Jeong Hwan Choe and Jian Ming Li are jointly and severably liable to Heriot Pty Ltd in the sum of $750,000.00 such amount to be paid immediately. 2. In the event that a party wishes to bring a costs application, the costs application must be lodged in the Tribunal and served on the costs respondent within 14 days of the date of the orders in these proceedings either attaching or referring to the documents relied upon in support of the application. 3. The costs respondent will have 14 days after the date he or it receives the application to lodge in the Tribunal and serve on the costs applicant his or its submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon. 4. The cost applicant will have 14 days after the date it or he receives the cost respondent’s submissions to lodge in the Tribunal and serve on the costs respondent its or his submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon. 5. The parties must state in their submissions whether or not they consent to the costs application being determined on the basis of the parties written submissions and attached documents, if any, without the need for a hearing. 6. Subject to the parties’ submissions, the Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Catchwords:	LEASES AND TENANCIES — Retail leases — Guarantee — Mitigation
Legislation Cited:	Conveyancing Act 1919 (NSW) Real Property Act 1900 (NSW) Retail Leases Act 1994 (NSW)
Cases Cited:	Australian Securities and Investments Commission v Kobelt [2019] HCA 18 Brown v Tavern Operator Pty Ltd [2018] NSWSC 1290
Texts Cited:	Nil
Category:	Principal judgment
Parties:	Heriot Pty Ltd (Applicant) Jeong Hwan Choe (First Respondent) Jian Ming Li (Second Respondent)
Representation:	Counsel: Mr Boadle (Applicant) Mr Munro (Second Respondent) Solicitors: Baron & Associates (Applicant) Longton Legal (Second Respondent)
File Number(s):	COM 19/55752
Publication restriction:	Nil