Solomon v Dr Singh

[2004] NSWADT 264

CITATION:	Solomon & Ors v Dr Singh & Anor [2004] NSWADT 264
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT Isaac Solomon, Sarah Cooper and Elizabeth Oxman RESPONDENT Dr Raghubir Singh and Dr Suman Sood
FILE NUMBER:	035094
HEARING DATES:	25/10/2004
SUBMISSIONS CLOSED:	10/25/2004
DATE OF DECISION:	11/18/2004
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Jurisdiction
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Electronic Industries Ltd v David Jones Pty Ltd (1954) 91 CLR 288 Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1956) 98 CLR 93 Walker v Bowry (1925) 35 CLR 48
REPRESENTATION:	APPLICANT S Bell, counsel RESPONDENT M Watts, counsel
ORDERS:	1.Dr Singh’s application is dismissed; 2.Matter set down for further directions at 10.30 am on 2 December 2004

1 This is an application by the first respondent, Dr Singh, seeking orders that the substantive application of the applicants, Mr Solomon, Ms Cooper and Ms Oxman, be dismissed. The basis of the application is the fact that the applicants entered into a deed of release with the second respondent, Dr Sood, on or about 9 June 2004.

2 In light of Dr Singh’s application, which would dispose of the proceedings if his application were successful, this application was set down for hearing on 25 October 2004 as a preliminary matter for determination.

3 The applicants are owners of premises known as Shop T12 at the Eagle Vale Market Place shopping centre (“the premises”). Dr Sing and Dr Sood were former directors of Maxicare Family Clinics Pty Limited (“Maxicare”) and SS Medical Pty Limited (“SS Medical”) who were the joint lessee of these premises from 4 May 1998 to about 31 July 2002. Dr Sing and Dr Sood were guarantors for the obligations of Maxicare and SS Medical under the lease.

4 Maxicare and SS Medical became lessees of the premises pursuant to a Deed of transfer. The original lessee being Maxicare, who had executed a lease on or about 5 September 2000 with Woolworths Properties Pty Limited, the then owner of the premises. This original lease was registered (Registered Lease no.0937276) and provided that the lease commenced on 5 September 1995 and was to end on 4 September 2000 (“the registered lease”).

The Registered lease

5 Clause 27 of the registered lease made provision for a guarantee and indemnity.

6 The guarantor was defined in clause 1.1 to mean “the person named in Item 16”. The persons named in Item 16 were Dr Singh, Dr S. Magad, Dr H. Gobran and Dr S. Francis.

7 Clause 27 of the registered lease, so far as is relevant, provides as follows:

“ 27. GUARANTEE AND INDEMNITY

27.1 The Guarantor agrees to guarantee the following to the Landlord:

(a) the payment of all monies agreed to be paid by the Tenant to the landlord in this or in any extension or renewal of this lease; and

(b) the timely performance and observance of all obligations of the Tenant contained or implied in this…