Dubois v Down [2003] QSC 317

State Reporting Bureau Jaco3} ^ sc 317 Queensland Government Department of Justice and Attorney-General Transcript of Proceedings Copyright in this transcript is vested in the Crown. Copies thereof must not be made or sold without the written authority of the Director, State Reporting Bureau. SUPREME COURT OF QUEENSLAND CIVIL JURISDICTION CHESTERMAN J No 2176 of 2003 PHILIP JAMES DUBOIS and ROGER HUGH LANGDON DOWN BRISBANE ..DATE 27/08/2003 JUDGMENT REVISED COPIES ISSUED State Reporting Bureau Date: 4 September, 2003 Plaintiff Defendant WARNING: The publication of information or details likely to lead to the identification of persons in some proceedings is a criminal offence. This is so particularly in relation to the identification of children who are involved in criminal proceedings or proceedings for their protection under the Child Protection Act 1999, and complainants in criminal sexual offences, but is not limited to those categories. You may wish to seek legal advice before giving others access to the details of any person named in these proceedings. 1 1th Floor, The Law Courts, George Street, Brisbane, Q. 4000 Telephone: (07) 3247 4360 Fax: (07) 3247 5532 -- 1 of 5 -- 27082003 T12/13 AMF8 M/T 2/2003 (Chesterman J) HIS HONOUR: The applicant is the owner of a property 1 described in paragraph 1 of the statements of claim. It was a property from which a medical practice was conducted. The premises were leased to the defendants in action 5191 of 2003. Those defendants assigned the lease to a company associated 10 with the defendant in this action, 2176 of 2003 in about April in 2001. The assignee of the lease was a company called Debendo Pty Ltd. The defendant in this action, Dr Down is said to have been a guarantor of the lease obligations undertaken by Debendo pursuant to the deed of assignment. Dr Down or those associated with him conducted a medical practice from the premises until 9 December 2002 when it vacated the premises and repudiated the lease. 30 The repudiation was accepted and the lease then came to an end. The plaintiff claims from the defendant, pursuant to the guarantee, rent payable up to the 9th of December 2002 and damages in respect of lost rent from that date to the present 4( and into the future. No other tenant has been found for the premises. Only one point is taken by the defendant in opposition to the claim against him. It is said that he is not bound by the guarantee. There is a document called, "Guarantee to Lease". It is in form a contract. It is signed by the defendant and is addressed to the plaintiff. The consideration recited in the guarantee is: 5 2 JUDGMENT -- 2 of 5 -- 27082003 T12/13 AMF8 M/T 2/2003 (Chesterman J) "In consideration of you agreeing at the request of Roger Hugh Langdon Down, guarantor, to grant to Debendo Pty Ltd the lease the guarantor agrees with the lessor." And there followed a number of terms. The essential one is paragraph 18 by which Dr Down agreed to indemnify the plaintiff against any loss or damage he suffered by reason of a breach by Debendo of the terms of the assigned lease. It should be noted that the paragraphs in the guarantee to lease are numbered 16 to 25. That is because it was really an attachment to another document, a deed of consent and assignment to lease made between the plaintiff, the company, Lamistar Pty Ltd, which was the original lessee, Debendo, the assignee of the lease, and the defendant Dr Down the guarantor of the assignee. That document contains a number of clauses which are numbered 1 to 15, so the first clause of the guarantee follows on from the last clause of the deed of consent and assignment to lease . Now that document is clearly a deed, it is described as such. The execution page recites that the document was signed sealed and delivered by the defendant and his signature was witnessed by someone not a party to the document. It is therefore binding as a deed despite the absence of consideration. 1 10 20 30 40 50 3 JUDGMENT 80 -- 3 of 5 -- 27082003 T12/13 AMF8 M/T 2/2003 (Chesterman J) I should make clear that the point taken is that the consideration expressed in the guarantee to lease is illusory because what was being provided was an assignment of the lease from Dr Dubois to Lamistar and not a lease from Dr Dubois to Debendo as the guarantee suggests. 1 Whether or not that clause should be read as meaning that Debendo was taking an assignment of a lease to Limistar rather than taking a lease itself direct from the lessor I think can be put to one side because clause 15 of the deed of consent and assignment provides: "The guarantor will guarantee the assignee's obligations under the lease in terms of the attached guarantee of lease ." The guarantor is identified as the defendant. The assignee is 3 identified as Debendo Pty Ltd and the attached guarantee of lease is clearly the document which follows and the numbers of the terms of which follow sequentially. The end result is that by deed the defendant guaranteed Debendo ' s obligations under the lease in terms of the guarantee which as I mentioned obliges it to indemnify the plaintiff against loss by reason of Debendo ’s breaches of the lease. I am satisfied that the plaintiff has proved its entitlement to relief under the guarantee. sJ The defendant admits that it owes the plaintiff, in the event the judgment be given as it has been, the sum of $14,296.50. There will be judgment for that amount and a further judgment 1 0 .0 ■0 4 JUDGMENT 6C -- 4 of 5 -- 27082003 T12/13 AMF8 M/T 2/2003 (Chesterman J) for damages to be assessed for additional amounts as the plaintiff can prove. I will make a further order that the defendant pay the plaintiff's costs of and incidental to the application and action to be assessed on standard basis. 1 10 20 30 40 50 5 JUDGMENT 60 -- 5 of 5 --