Cihan v Border Hotels No 2; Border Hotels No 2 v Cihan [2015] NSWSC 297

Cihan v Border Hotels No 2; Border Hotels No 2 v Cihan [2015] NSWSC 297

Border Hotels failed to comply with the condition of the interlocutory injunction (payment of $10,000 per week), and absent a satisfactory explanation or substantial discretionary reason, was not entitled to continued interlocutory protection. Equitable relief cannot be extended to a party who has failed to do equity by not fulfilling agreed conditions.

Jurisdiction
Australia
Judgment Date
18 March 2015
Procedural Posture
Interlocutory Application / Interlocutory Hearing
Outcome
Existing interlocutory injunction discharged; new interlocutory relief restraining removal of fixtures and fittings granted, no order for possession.
Legal Topics
['interlocutory Injunctions' 'retail Leases' 'contract Variation' 'enforcement of Court Orders']
['equity' 'civil Procedure'] ['interlocutory Injunctions' 'retail Leases' 'contract Variation' 'enforcement of Court Orders']

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Procedural Posture

Interlocutory Application / Interlocutory Hearing

Legal Issues

  1. 1 ['Whether the interlocutory injunction granted by NCAT should be discharged due to non-compliance by Border Hotels No 2 Pty Ltd with the condition of payment.' 'Whether Border Hotels could obtain further equitable relief notwithstanding its admitted failure to do equity.' 'Whether oral variation of written contract was effective in the context of a retail lease.']

Ratio Decidendi

Border Hotels failed to comply with the condition of the interlocutory injunction (payment of $10,000 per week), and absent a satisfactory explanation or substantial discretionary reason, was not entitled to continued interlocutory protection. Equitable relief cannot be extended to a party who has failed to do equity by not fulfilling agreed conditions.

Court Disposition

Existing interlocutory injunction discharged; new interlocutory relief restraining removal of fixtures and fittings granted, no order for possession.

Orders

  • ['Existing interlocutory orders (procedural directions of NCAT) are discharged.' 'Border Hotels No 2 Pty Ltd is restrained from removing fixtures, fittings or equipment that are the property of Mehmet Cihan as Trustee for Cihan Family Trust from the premises.' 'No order made requiring delivery up of possession...