Sabri v Selby [2004] NSWADT 252

Sabri v Selby [2004] NSWADT 252

Mr Sabri was more than 14 days in arrears as at 17 November 2003, the 17 November 2003 Termination Notice complied with cl.30(c) of the lease and was personally served, and there was no waiver of the right to forfeit. However, all outstanding rent had been paid, rent had since been paid when due, no unlawful gambling use was proved, and the other conduct relied on by the landlord was not sufficiently serious to make relief inequitable. Relief against forfeiture was therefore granted, but relief from payment of rent was refused because the landlord's agents acted as quickly as they could and delay in repairing the wall was due to Mr Sabri's conduct.

Jurisdiction
Australia
Judgment Date
04 November 2004
Procedural Posture
Claim for Declaration of Rights, Obligations and Liabilities Under a Lease; Claim for Relief Against Forfeiture; Claim for Relief From Payment of Money; Costs / Principal Matter
Outcome
Application granted in part. Mr Sabri was granted relief against forfeiture and the lease term was extended; relief from payment of rent and costs were refused.
Legal Topics
['relief Against Forfeiture' 'termination of Lease' 'non Payment of Rent' 'waiver' 'retail Lease Minimum Term' 'rent Abatement' 'costs']
['retail Leases' 'property Law' 'equity' 'administrative Law'] ['relief Against Forfeiture' 'termination of Lease' 'non Payment of Rent' 'waiver' 'retail Lease Minimum Term' 'rent Abatement' 'costs']

Case Brief

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Procedural Posture

Claim for Declaration of Rights, Obligations and Liabilities Under a Lease; Claim for Relief Against Forfeiture; Claim for Relief From Payment of Money; Costs / Principal Matter

Legal Issues

  1. 1 ['As at 17 November 2003, was Mr Sabri in arrears in rent for a period in excess of 14 days?' 'Was the Notice of Termination dated 17 November 2003 a valid notice and was it served on Mr Sabri?' "Was the conduct of Mr Akbulut and Mr Lam such that Mr Selby's right to forfeit the lease was waived?" 'If the lease was validly terminated, did the circumstances warrant relief against forfeiture?' 'If relief against forfeiture was granted, was Mr Sabri entitled to an order that he was not liable for rent during the period he was locked out?']

Ratio Decidendi

Mr Sabri was more than 14 days in arrears as at 17 November 2003, the 17 November 2003 Termination Notice complied with cl.30(c) of the lease and was personally served, and there was no waiver of the right to forfeit. However, all outstanding rent had been paid, rent had since been paid when due, no unlawful gambling use was proved, and the other conduct relied on by the landlord was not sufficiently serious to make relief inequitable. Relief against forfeiture was therefore granted, but relief from payment of rent was refused because the landlord's agents acted as quickly as they could and delay in repairing the wall was due to Mr Sabri's conduct.

Court Disposition

Application granted in part. Mr Sabri was granted relief against forfeiture and the lease term was extended; relief from payment of rent and costs were refused.

Orders

  • ['Mr Sabri be granted relief against forfeiture.' 'The term of the lease is extended to 20 March 2006 with an option to renew for one year.']