Huang v Mac's Pty Ltd [2003] NSWADT 192

Huang v Mac's Pty Ltd [2003] NSWADT 192

The GIO policy in its 16 May 2003 form, naming the Lessee as insured and the Lessor as Interested Party, gave the Lessor enforceable protection under the general law and s.48 of the Insurance Contracts Act 1984 (Cth) and therefore complied with clauses 17.01-17.03 of the Lease. Although the Notices to Rectify and Notices of Termination were valid when issued because the policy had not then been corrected, the Lessee had remedied the breach, there was no evidence of prejudice to the Lessor, and relief against forfeiture should be granted. The Lessor's recoverable legal expenses under clause 7.02 were limited to costs relating to the insurance issue up to 16 May 2003.

Jurisdiction
Australia
Judgment Date
15 August 2003
Procedural Posture
Claim for Payment of Money; Claim for Relief Against Forfeiture; Claim for Surrender of Possession of Premises / Principal Matter
Outcome
Notices of Termination set aside; applications otherwise dismissed except the Lessee was ordered to pay $3000 inclusive of GST to the Lessor under clause 7.02 of the Lease; no order as to costs.
Legal Topics
['relief Against Forfeiture' 'lease Insurance Covenants' 'notices to Rectify and Terminate' 'third Party Rights Under Insurance Contracts' 'legal Expenses Under Lease']
['retail Leases' 'property Law' 'insurance Law' 'tribunal Procedure'] ['relief Against Forfeiture' 'lease Insurance Covenants' 'notices to Rectify and Terminate' 'third Party Rights Under Insurance Contracts' 'legal Expenses Under Lease']

Case Brief

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Procedural Posture

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

Legal Issues

  1. 1 ['Whether the Lessee complied with clauses 17.01-17.03 of the Lease requiring insurance in the joint names of the Landlord and Tenant.' 'Whether the Notices of Termination dated 12 May 2003 should be set aside and relief against forfeiture granted.' 'Whether the Lessor was entitled to legal expenses under clause 7.02 of the Lease.']

Ratio Decidendi

The GIO policy in its 16 May 2003 form, naming the Lessee as insured and the Lessor as Interested Party, gave the Lessor enforceable protection under the general law and s.48 of the Insurance Contracts Act 1984 (Cth) and therefore complied with clauses 17.01-17.03 of the Lease. Although the Notices to Rectify and Notices of Termination were valid when issued because the policy had not then been corrected, the Lessee had remedied the breach, there was no evidence of prejudice to the Lessor, and relief against forfeiture should be granted. The Lessor's recoverable legal expenses under clause 7.02 were limited to costs relating to the insurance issue up to 16 May 2003.

Court Disposition

Notices of Termination set aside; applications otherwise dismissed except the Lessee was ordered to pay $3000 inclusive of GST to the Lessor under clause 7.02 of the Lease; no order as to costs.

Orders

  • ['Application 035046: Notices of Termination dated 12 May 2003 from the Respondent to the Applicant be set aside.' 'Application 035046: Application otherwise dismissed.' 'Application 035046: No order as to Costs.' 'Application 035051: Respondent Lessee to pay Applicant $3000 (inclusive of GST) pursuant to cl 7.02 of...