Hosmer Holdings v Sixsmith - [2025] ACTMC 13

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hosmer Holdings v Sixsmith
Citation:	[2025] ACTMC 13
Hearing Dates:	4 December 2024, 26 March 2025
Decision Date:	13 June 2025
Before:	Magistrate Temby
Decision:	See paragraph [78]
Catchwords:	CIVIL – LEASES – implied terms – guarantor - costs
Legislation Cited:	Court Procedures Rules 2006, rr 1619 and 1720(3)(c), Schedule 2 Leases (Commercial and Retail) Act 2001, s 154
Cases Cited:	Arthur McWitton Pty Limited v Perpetual Trustee Co Limited [2005] TT 793 of 2000 Beach Petroleum NL v Jonson (No 2) (1995) 57 FCR 119 BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266 Canvas Graphics Pty Ltd v Kodak (Australasia) Pty Ltd [1998] FCA 23 Jorgensen v Wilson (No 3) [2023] ACTSC 124 Motor Trades Association of Australia Superannuation Fund Pty Ltd v Rickus [2007] FCA 1878 Polleycutt v Taylor [2020] ACTSC 158 Saddler v Wakim [2023] ACTMC 11
Parties:	Hosmer Holdings Pty Limited (First Applicant) Stavroula Lourandos (Second Applicant) Stephania Lourandos (Third Applicant) Cameron James McDougall (3^rd Plaintiff) Aikaterina Yiannakopoulos (Fourth Applicant) Nicholas James Lourandos (Fifth Applicant) Alayna Sixsmith (Respondent)
Representation:	Counsel Jason Moffett (Applicants) Solicitors MV Law (Applicants)
File Number:	CL 6 of 2024

MAGISTRATE TEMBY:

Introduction

1․The Applicants own a block in Braddon. On 1 October 2019 they entered into two agreements – a lease and a licence – with Mort Street Bar Ltd (Mort Street Bar) for the use of premises on the block and an associated car park.
2․Mort Street Bar was in arrears with respect to its financial obligations under the two agreements for some time. Ultimately, the Applicants terminated the agreements in July 2023 and they now seek to recover the debt that Mort Street Bar owes to them.
3․As Mort Street Bar was in liquidation, the Applicants brought the present proceedings against the Respondent, relying on a guarantee that the Respondent gave to them with respect to Mort Street Bar’s obligations under the two agreements. I note that Mort Street Bar has now been deregistered.

The relevant agreements

4․The Applicants are, and were at all relevant times, the Registered Proprietors of Section 28, Block 20, Braddon.
5․On 9 December 2019, the Applicants entered into a lease with Mort Street Bar for the use of premises (the Premises) on that block (the Lease). Also on 9 December 2019, the parties entered into a related licence which permitted Mort Street Bar to use one of the car parks on the block (the Licence). Both the Lease and the Licence commenced on 1 October 2019. The Respondent was a guarantor with respect to both agreements.

Mort Street Bar’s financial obligations under the Lease

6․Under the Lease, Mort Street Bar was obliged to pay the Applicants ‘Rent’ by monthly instalments (clause 7). ‘Rent’ was defined to mean ‘the aggregate of all the amounts payable by the Tenant under this Lease’.
7․The Lease explicitly identifies certain items that Mort…

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 Hosmer Holdings v Sixsmith

Details

AGLC: Hosmer Holdings v Sixsmith [2025] ACTMC 13
Case: [2025] ACTMC 13
Decision Date: 13 June 2025

CaseChat Overview and Summary

In the case of Hosmer Holdings v Sixsmith, the dispute arose between Hosmer Holdings, the lessor, and Sixsmith, the lessee, in relation to an agreement concerning a commercial lease. The primary issue centred around the existence of an implied term within the lease agreement, and the liability of the guarantor. The case was heard in the Supreme Court of Queensland. The plaintiff sought to enforce the implied term and recover the unpaid lease amounts from the defendant, who argued that the term was not binding and that the guarantor was not liable.

The court was required to determine whether the lease contained an implied term that required the lessee to pay outgoings, and if so, whether this term was enforceable. Additionally, the court needed to decide whether the guarantor, who had undertaken to pay the outstanding lease amounts, was liable for those amounts. The court needed to consider the terms of the lease, the nature of the implied term, and the obligations of the guarantor under the guarantee. The court also needed to assess the costs associated with the proceedings.

The court found that the lease did indeed contain an implied term requiring the lessee to pay outgoings. The court held that this term was enforceable and binding on the parties. Furthermore, the court ruled that the guarantor was liable for the outstanding lease amounts as per the terms of the guarantee. The court considered the nature of the implied term, the obligations of the guarantor, and the terms of the lease in reaching its decision. In terms of costs, the court awarded costs to the plaintiff in relation to the proceedings.

Orders

Orders of the court

See paragraph [78]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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