Kyriacou v Manakis [2006] NSWSC 804

Kyriacou v Manakis [2006] NSWSC 804

The plaintiffs' application for relief against forfeiture must fail at this stage because they have not undertaken to pay the outstanding rent, interest, and costs. However, there is a serious question as to their entitlement to remove tenants' fixtures, and the balance of convenience supports granting an interlocutory injunction (upon the usual undertaking as to damages) restraining the defendants from re-letting or granting an agreement for lease to a new tenant where that lease would include the items in dispute as part of the premises. Damages would not be an adequate remedy for plaintiffs due to the special value of the fixtures to their business.

Jurisdiction
Australia
Judgment Date
28 July 2006
Procedural Posture
Equity Proceedings (application for Interlocutory Injunction) / Interlocutory Application
Outcome
Interlocutory injunction granted in part; plaintiffs not granted relief against forfeiture at this stage; parties to bring in short minute of order; costs of application will be costs in the proceedings.
Legal Topics
['relief Against Forfeiture' 'termination of Lease' "tenant's Fixtures" 'injunctive Relief']
['landlord & Tenant' 'equity'] ['relief Against Forfeiture' 'termination of Lease' "tenant's Fixtures" 'injunctive Relief']

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Procedural Posture

Equity Proceedings (application for Interlocutory Injunction) / Interlocutory Application

Legal Issues

  1. 1 ['Whether plaintiffs are entitled to interlocutory injunction restraining defendants from dealing with fixtures and fittings and from re-letting premises with existing fixtures and fittings' 'Whether plaintiffs are entitled to relief against forfeiture despite not undertaking to pay all outstanding rent and related amounts' "Whether plaintiffs retain a right to remove tenants' fixtures after forfeiture"]

Ratio Decidendi

The plaintiffs' application for relief against forfeiture must fail at this stage because they have not undertaken to pay the outstanding rent, interest, and costs. However, there is a serious question as to their entitlement to remove tenants' fixtures, and the balance of convenience supports granting an interlocutory injunction (upon the usual undertaking as to damages) restraining the defendants from re-letting or granting an agreement for lease to a new tenant where that lease would include the items in dispute as part of the premises. Damages would not be an adequate remedy for plaintiffs due to the special value of the fixtures to their business.

Court Disposition

Interlocutory injunction granted in part; plaintiffs not granted relief against forfeiture at this stage; parties to bring in short minute of order; costs of application will be costs in the proceedings.

Orders

  • ['Direct the legal representatives of the parties to bring in a short minute of order in accordance with these reasons.' 'Costs of this application will be costs in the proceedings.']