Home Ideas Centre Sydney Pty Ltd v Alem Pty Ltd [2010] NSWSC 695

Home Ideas Centre Sydney Pty Ltd v Alem Pty Ltd [2010] NSWSC 695

The Defendant validly terminated the lease either on 31 May 2010 for failure to pay outgoings under clause 12(a)(ii), or on 1 June 2010 for failure to comply with the demand served on 24 May 2010. The $264,000 was repayable because it was rent conditionally deferred as a loan and the condition for non-repayment was not fulfilled after valid termination for breach. Relief against forfeiture was granted because the Plaintiff paid the arrears, procured security including a bank guarantee and parent company guarantee, and thereby put the Defendant back in the same position as before forfeiture, although the Plaintiff had to pay the Defendant's costs on an indemnity basis.

Jurisdiction
Australia
Judgment Date
01 June 2010
Procedural Posture
Commercial Lease Proceedings Seeking a Declaration That Termination Was Invalid And, Alternatively, Relief Against Forfeiture / Principal Judgment After Expedited Final Hearing
Outcome
Relief against forfeiture granted on terms; plaintiff to pay defendant's costs on indemnity basis.
Legal Topics
['construction of Lease Default Clauses' 'relief Against Forfeiture' 'termination and Re Entry' 'rent and Outgoings Arrears' 'indemnity Costs']
['leases' 'equity' 'costs'] ['construction of Lease Default Clauses' 'relief Against Forfeiture' 'termination and Re Entry' 'rent and Outgoings Arrears' 'indemnity Costs']

Case Brief

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Procedural Posture

Commercial Lease Proceedings Seeking a Declaration That Termination Was Invalid And, Alternatively, Relief Against Forfeiture / Principal Judgment After Expedited Final Hearing

Legal Issues

  1. 1 ['Whether the Defendant had validly terminated the lease by giving a notice required by clause 12(a)(i) or (ii) of the lease' 'If the lease had been validly terminated, whether relief against forfeiture should be granted' 'Whether the sum of $264,000 was payable to the Defendant under the terms of the letter dated 25 March 2009']

Ratio Decidendi

The Defendant validly terminated the lease either on 31 May 2010 for failure to pay outgoings under clause 12(a)(ii), or on 1 June 2010 for failure to comply with the demand served on 24 May 2010. The $264,000 was repayable because it was rent conditionally deferred as a loan and the condition for non-repayment was not fulfilled after valid termination for breach. Relief against forfeiture was granted because the Plaintiff paid the arrears, procured security including a bank guarantee and parent company guarantee, and thereby put the Defendant back in the same position as before forfeiture, although the Plaintiff had to pay the Defendant's costs on an indemnity basis.

Court Disposition

Relief against forfeiture granted on terms; plaintiff to pay defendant's costs on indemnity basis.

Orders

  • ['Relief against forfeiture granted in accordance with agreed Short Minutes of Order.' "Plaintiff ordered to pay the Defendant's costs of the proceedings on the indemnity basis."]