Rose v Batson Holdings Pty Ltd & Anor [2004] NSWADT 268

Rose v Batson Holdings Pty Ltd & Anor [2004] NSWADT 268

Section 129 notice was validly served and specified actual breaches, including failure to pay outgoings and parting with possession; Batson Holdings parted with possession in favour of Laundy Investments without landlord's consent, contrary to the lease, and failed to remedy after notice. The breach was serious and wilful, conduct was not excusable, and relief against forfeiture was not warranted. Applicant was entitled to terminate and recover possession.

Parties
Applicant: John Emmanuel Rose; First Respondent: Batson Holdings Pty Limited; Second Respondent: Laundy Investments Pty Limited
Jurisdiction
Australia
Judgment Date
16 December 2004
Procedural Posture
Retail Lease Dispute / Principal Matter—application for Declaration and Orders Re Lease Termination and Possession
Outcome
Application upheld for declaration, possession, further relief adjourned, liberty to apply, and costs reserved.
Legal Topics
Termination of Lease, Forfeiture, Relief Against Forfeiture, Breach of Covenant, Validity of Notice, Possession, Assignment and Parting With Possession
Property Law Retail Leasing Equity Termination of Lease Forfeiture Relief Against Forfeiture Breach of Covenant Validity of Notice +2 more

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Parties

John Emmanuel Rose

Applicant

Batson Holdings Pty Limited

First Respondent

Laundy Investments Pty Limited

Second Respondent

Procedural Posture

Retail Lease Dispute / Principal Matter—application for Declaration and Orders Re Lease Termination and Possession

Legal Issues

  1. 1 Whether section 129 notice under Conveyancing Act 1919 was valid
  2. 2 Whether Batson Holdings breached covenants in the lease
  3. 3 Whether Batson Holdings parted with possession in breach of the lease

Ratio Decidendi

Section 129 notice was validly served and specified actual breaches, including failure to pay outgoings and parting with possession; Batson Holdings parted with possession in favour of Laundy Investments without landlord's consent, contrary to the lease, and failed to remedy after notice. The breach was serious and wilful, conduct was not excusable, and relief against forfeiture was not warranted. Applicant was entitled to terminate and recover possession.

Court Disposition

Application upheld for declaration, possession, further relief adjourned, liberty to apply, and costs reserved.

Orders

  • Declaration pursuant to Retail Leases Act 1994 s72(1)(f)(iii) that applicant is entitled to terminate Lease registered 0542508 between applicant as lessor and first respondent as lessee for premises at Ground Floor, 724 Darling Street Rozelle, Lot 2 in Strata Plan 69876, forthwith;
  • Order that second respondent forthwith give up vacant possession of premises to applicant;