O'Brien v Rushworth [2011] NSWADT 115

O'Brien v Rushworth [2011] NSWADT 115

Relief against forfeiture was appropriate because the alleged unpaid outgoing was a relatively small amount, the lessee had in fact paid the same amount to Coffs Harbour City Council although it was credited to a different outgoing, and there was no rent or outgoing actually unpaid in respect of the premises when the lockout occurred. The lockout was therefore premature, the lessee had been unable to operate the business during the lockout period, and no rent arrears should be ordered for that period. Re-entry was granted subject to payment of agreed fees, restoration of the removed wall section, and payment of rent in advance from re-entry and thereafter under the lease.

Jurisdiction
Australia
Judgment Date
25 May 2011
Procedural Posture
Retail Lease Dispute Involving an Application for Relief Against Forfeiture and a Cross Application for Compensation / Principal Judgment After Hearing
Outcome
The lessee was granted relief against forfeiture and immediate re-entry into possession of the premises, subject to conditions; the lessors' claims for rent during the lockout period and for cleaning, restoration, lawn and garden maintenance were not allowed; costs were reserved for submissions, failing which each...
Legal Topics
['relief Against Forfeiture' 'compensation' 'lockout' 'rent and Outgoings' 're Entry Into Possession']
['retail Leases' 'property Law'] ['relief Against Forfeiture' 'compensation' 'lockout' 'rent and Outgoings' 're Entry Into Possession']

Case Brief

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Procedural Posture

Retail Lease Dispute Involving an Application for Relief Against Forfeiture and a Cross Application for Compensation / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the lessee should be granted relief against forfeiture and immediate re-entry into possession of the premises after being locked out for alleged non-payment of outgoings.' 'Whether the lessee should be relieved from paying rent during the period from the lockout until possession was returned.' 'Whether the lessors were entitled to compensation for unpaid rent, outgoings, repairs and rectification costs, cleaning and gardening costs, lockout charges and a foregone mediation fee.' 'Whether the lessee should bear the cost of restoring the portion of the gallery wall she removed.']

Ratio Decidendi

Relief against forfeiture was appropriate because the alleged unpaid outgoing was a relatively small amount, the lessee had in fact paid the same amount to Coffs Harbour City Council although it was credited to a different outgoing, and there was no rent or outgoing actually unpaid in respect of the premises when the lockout occurred. The lockout was therefore premature, the lessee had been unable to operate the business during the lockout period, and no rent arrears should be ordered for that period. Re-entry was granted subject to payment of agreed fees, restoration of the removed wall section, and payment of rent in advance from re-entry and thereafter under the lease.

Court Disposition

The lessee was granted relief against forfeiture and immediate re-entry into possession of the premises, subject to conditions; the lessors' claims for rent during the lockout period and for cleaning, restoration, lawn and garden maintenance were not allowed; costs were reserved for submissions, failing which each...

Orders

  • ['The Applicant is permitted immediate re-entry into possession of the premises located at 30 Nana Street, Nana Glen NSW subject to the conditions as contained within order 5 below.' 'The Respondents are to immediately provide to the Applicant all keys to enable access to all parts of the premises.' 'The portion of...