AARON LYE V NORMA SWEENEY [2009] NSWSC 193

AARON LYE V NORMA SWEENEY [2009] NSWSC 193

The plaintiff had no arguable case against the respondent. The tenancy was not shown to be for a term of years or a tenancy at will under s 127, and the Associate Justice was correct to treat it as a common law periodic monthly tenancy. Rent was substantially in arrears, no rent had been paid or tendered to the respondent after 21 December 2007, and the respondent's re-entry by changing locks validly determined the tenancy; in any event, the plaintiff's sustained non-payment and non-tender of rent was repudiating conduct. Any lack of submissions on s 85 did not justify a further hearing because the result was legally correct and remittal would be futile.

Jurisdiction
Australia
Judgment Date
26 March 2009
Procedural Posture
Appeal by Notice of Motion From Dismissal of Proceedings Concerning Alleged Leasehold Interests / Appeal Against Judgment of Associate Justice Macready Delivered 5 September 2008
Outcome
Motion and appeal dismissed with costs.
Legal Topics
['periodic Monthly Tenancy' 'termination of Lease' 're Entry for Non Payment of Rent' 'strike Out Application' 'natural Justice' 'repudiation']
['property Law' 'landlord and Tenant' 'civil Procedure'] ['periodic Monthly Tenancy' 'termination of Lease' 're Entry for Non Payment of Rent' 'strike Out Application' 'natural Justice' 'repudiation']

Case Brief

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Procedural Posture

Appeal by Notice of Motion From Dismissal of Proceedings Concerning Alleged Leasehold Interests / Appeal Against Judgment of Associate Justice Macready Delivered 5 September 2008

Legal Issues

  1. 1 ["Whether the Associate Justice erred in holding that the second defendant had terminated the plaintiff's lease pursuant to s 85(1)(d) of the Conveyancing Act 1919." 'Whether the plaintiff was denied natural justice because s 85 of the Conveyancing Act 1919 was considered without submissions from counsel.' "Whether the plaintiff's occupation was a tenancy at will under s 127 of the Conveyancing Act 1919 or a common law periodic monthly tenancy." 'Whether sustained non-payment and non-tender of rent amounted to repudiating conduct entitling the respondent to terminate the tenancy.' 'Whether it would be futile to order a further hearing of the strike out application.']

Ratio Decidendi

The plaintiff had no arguable case against the respondent. The tenancy was not shown to be for a term of years or a tenancy at will under s 127, and the Associate Justice was correct to treat it as a common law periodic monthly tenancy. Rent was substantially in arrears, no rent had been paid or tendered to the respondent after 21 December 2007, and the respondent's re-entry by changing locks validly determined the tenancy; in any event, the plaintiff's sustained non-payment and non-tender of rent was repudiating conduct. Any lack of submissions on s 85 did not justify a further hearing because the result was legally correct and remittal would be futile.

Court Disposition

Motion and appeal dismissed with costs.

Orders

  • ["Mr Lye's motion appealing against the judgment of 5 September 2008 of Macready As. J is dismissed with costs."]