Calleja -v- Malli [2001] NSWADT 20

Calleja -v- Malli [2001] NSWADT 20

The respondent wrongly treated all Council-required works as the landlords' responsibility and, instead of negotiating with Council, obtaining quotations, seeking Tribunal assistance, resuming trade or paying rent, abandoned the business and failed to take steps to protect himself. The Council matters were capable of resolution and were mainly tenant fit-out and use matters, while the landlords' failure to take some mitigating steps meant no rental arrears order was appropriate. The tenant's default justified forfeiture and dismissal of his cross-application, but not an order for rent arrears.

Jurisdiction
Australia
Judgment Date
13 February 2001
Procedural Posture
Claim for Payment of Money; Claim for Relief Against Forfeiture; Claim for Surrender of Possession of Premises; Jurisdiction / Principal Matter
Outcome
Lease forfeited; applicants entitled to immediate possession of the shop and storeroom; respondent's application dismissed; respondent ordered to pay specified costs; no order for payment of rental arrears.
Legal Topics
['forfeiture of Lease' 'relief Against Forfeiture' 'retail Lease Jurisdiction' 'rent Arrears' 'council Food Premises Compliance' 'landlord and Tenant Repair Obligations' 'costs']
['retail Leases' 'property Law' 'tribunal Procedure'] ['forfeiture of Lease' 'relief Against Forfeiture' 'retail Lease Jurisdiction' 'rent Arrears' 'council Food Premises Compliance' 'landlord and Tenant Repair Obligations' 'costs']

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Procedural Posture

Claim for Payment of Money; Claim for Relief Against Forfeiture; Claim for Surrender of Possession of Premises; Jurisdiction / Principal Matter

Legal Issues

  1. 1 ["Whether the respondent tenant's lease should be forfeited and possession surrendered to the applicant landlords." 'Whether the respondent tenant was entitled to relief against forfeiture, damages for destruction of goodwill, or an extension of the lease term.' 'Whether responsibility for remedying the Botany Council food premises notice lay with the landlords or the tenant.' 'Whether the Tribunal had jurisdiction over rent attributable to the residential part of the premises.' 'Whether the Council order frustrated the lease.' 'Whether rental arrears and costs should be ordered.']

Ratio Decidendi

The respondent wrongly treated all Council-required works as the landlords' responsibility and, instead of negotiating with Council, obtaining quotations, seeking Tribunal assistance, resuming trade or paying rent, abandoned the business and failed to take steps to protect himself. The Council matters were capable of resolution and were mainly tenant fit-out and use matters, while the landlords' failure to take some mitigating steps meant no rental arrears order was appropriate. The tenant's default justified forfeiture and dismissal of his cross-application, but not an order for rent arrears.

Court Disposition

Lease forfeited; applicants entitled to immediate possession of the shop and storeroom; respondent's application dismissed; respondent ordered to pay specified costs; no order for payment of rental arrears.

Orders

  • ['The Lease be and is hereby forfeited, Applicants entitled to immediate possession of the shop and storeroom.' "The Respondent to pay Applicants' costs of attending at hearing on 6 October (but not the cost of preparing for that day's hearing) and the Applicants' subsequent costs of making written submissions- all...