International Business College Pty Ltd v Alphacrucis College Ltd (previously known as 'Southern Cross College of the Assemblies of God in Australia Ltd') & anor [2009] NSWSC 1088

International Business College Pty Ltd v Alphacrucis College Ltd (previously known as 'Southern Cross College of the Assemblies of God in Australia Ltd') & anor [2009] NSWSC 1088

IBC was in arrears for rent due on 14 April 2009 and had not established any waiver, overpayment or additional cash payments, so Alphacrucis was entitled to terminate the lease on 28 April 2009 without a s 129 notice because the relevant default was non-payment of rent. In any event, IBC was again in default for more than 28 days in respect of rent due on 14 July 2009, so Alphacrucis was entitled to terminate and re-enter on 13 August 2009. The arrears payable were $55,164. Relief against forfeiture was refused because the rent had not been brought up-to-date, there was no evidence IBC could service the lease in future, there had been a second default and a failure to provide the bank...

Jurisdiction
Australia
Judgment Date
16 September 2009
Procedural Posture
Landlord and Tenant Proceedings Concerning Termination of Lease, Arrears, Possession and Relief Against Forfeiture / Final Hearing; Principal Ex Tempore Judgment
Outcome
Summons dismissed with costs. Judgment on the cross-claim for $55,164. Cross-claimant declared entitled to possession. Relief against forfeiture refused.
Legal Topics
['termination of Lease' 'rent Arrears' 'relief Against Forfeiture' 're Entry and Possession' 'conveyancing Act Notice' 'lease Default']
['landlord and Tenant' 'equity' 'property Law'] ['termination of Lease' 'rent Arrears' 'relief Against Forfeiture' 're Entry and Possession' 'conveyancing Act Notice' 'lease Default']

Case Brief

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Procedural Posture

Landlord and Tenant Proceedings Concerning Termination of Lease, Arrears, Possession and Relief Against Forfeiture / Final Hearing; Principal Ex Tempore Judgment

Legal Issues

  1. 1 ['Whether Alphacrucis was entitled to terminate the lease on 28 April 2009 for default in payment of rent' 'Whether Alphacrucis was entitled to terminate the lease on 13 August 2009 for default in payment of rent' 'The quantum of arrears due under the lease' 'Whether International Business College Pty Ltd was entitled to relief against forfeiture']

Ratio Decidendi

IBC was in arrears for rent due on 14 April 2009 and had not established any waiver, overpayment or additional cash payments, so Alphacrucis was entitled to terminate the lease on 28 April 2009 without a s 129 notice because the relevant default was non-payment of rent. In any event, IBC was again in default for more than 28 days in respect of rent due on 14 July 2009, so Alphacrucis was entitled to terminate and re-enter on 13 August 2009. The arrears payable were $55,164. Relief against forfeiture was refused because the rent had not been brought up-to-date, there was no evidence IBC could service the lease in future, there had been a second default and a failure to provide the bank...

Court Disposition

Summons dismissed with costs. Judgment on the cross-claim for $55,164. Cross-claimant declared entitled to possession. Relief against forfeiture refused.

Orders

  • ['The summons be dismissed.' 'The cross-defendant pay the cross-claimant the sum of $55,164.' 'The cross-claimant is entitled to possession of the premises known as Lancaster House, situate and known as 40 Hector Street, Chester Hill, in the State of New South Wales.' 'Liberty to apply for a Writ of Possession...