Markham Real Estate Partners (KSW) Pty Ltd v Misan

The case of Markham Real Estate Partners (KSW) Pty Ltd v Misan involved a dispute between a landlord and a tenant regarding the unlawful re-entry into possession of a retail tenancy. The matter was heard by the Supreme Court of Queensland. The central issue was whether the landlord had unlawfully re-entered the property, and if so, whether this affected the enforceability of a guarantee and indemnity agreement under a sub-lease.

The court considered several legal questions, including whether the tenant had repudiated the lease, whether the changing of locks constituted re-entry and taking possession, and whether the administrator of the tenant company had given written consent to the landlord exercising property rights under the Corporations Act. The court found that the landlord lawfully terminated the lease due to the tenant's repudiation and fundamental breach, and that the changing of locks did not constitute an unlawful re-entry.

In addressing the guarantee and indemnity, the court examined whether it was discharged by the alleged unlawful re-entry or by the splitting of debts upon the assignment of the lease and guarantee. The court held that the landlord was entitled to recover unpaid rent, loss of bargain damages, and other losses under the terms of the guarantee and indemnity in the sub-lease. The court found that the guarantee and indemnity were not discharged by the landlord's lawful termination of the lease.

The court ordered that the guarantor was liable for the amounts claimed by the landlord under the guarantee and indemnity, including unpaid rent, loss of bargain damages, and other losses. The court further directed that the guarantor pay the landlord's costs of the proceeding.