711 Hogben Pty Ltd v Tadros [2021] NSWSC 1463

711 Hogben Pty Ltd v Tadros [2021] NSWSC 1463

The prospects of the lessees' proposed claim for relief against forfeiture are not so untenable as to warrant refusal of leave to amend. Although authorities suggest that exclusion clauses in leases can preclude equitable set-off, the circumstances—especially potential unconscionability—require factual evaluation best undertaken at trial. Leave to amend is therefore granted.

Jurisdiction
Australia
Judgment Date
15 November 2021
Procedural Posture
Civil Application (procedural Ruling) / Application for Leave to Amend Cross Claim
Outcome
Leave to amend cross-claim granted.
Legal Topics
['relief Against Forfeiture' 'cross Claims' 'set Off Clauses in Leases' 'unconscionability' 'amendment of Pleadings']
['equity' 'civil Procedure'] ['relief Against Forfeiture' 'cross Claims' 'set Off Clauses in Leases' 'unconscionability' 'amendment of Pleadings']

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Procedural Posture

Civil Application (procedural Ruling) / Application for Leave to Amend Cross Claim

Legal Issues

  1. 1 ['Whether leave to amend the cross-claim should be granted to include a claim for relief against forfeiture' 'Whether a clause in the lease excluding set-off precludes equitable relief against forfeiture based on set-off of damages against unpaid rent' 'Whether allegations of unconscionability by the lessor may allow relief against forfeiture despite the set-off exclusion']

Ratio Decidendi

The prospects of the lessees' proposed claim for relief against forfeiture are not so untenable as to warrant refusal of leave to amend. Although authorities suggest that exclusion clauses in leases can preclude equitable set-off, the circumstances—especially potential unconscionability—require factual evaluation best undertaken at trial. Leave to amend is therefore granted.

Court Disposition

Leave to amend cross-claim granted.

Orders

  • ['Leave granted to the defendants/cross-claimants to amend their Commercial List Cross-Claim List Statement as proposed.' "Lessees (defendants) to pay the lessor's costs thrown away by the amendment; otherwise, costs of application are costs in the cause." 'Matter stood over for directions on 19 November 2021 before...