Constantine v Sanders [2007] NSWSC 250

Constantine v Sanders [2007] NSWSC 250

The plaintiff's notice of motion was properly entertained and constituted an unequivocal act indicating the plaintiff's intention to terminate the lease and enforce possession, but relief against forfeiture should nevertheless be granted. Although the defendant had an unsatisfactory history of late rent payment and breached the 11 December 2006 agreement, the plaintiff did not act unreasonably in seeking to lift the stay. However, the defendant's defaults were not a deliberate disregard of his obligations, and evidence of a regular future monthly income from his established software business made it likely that he could pay rent when due. The Court therefore refused to lift the stay and...

Jurisdiction
Australia
Judgment Date
23 March 2007
Procedural Posture
Common Law Division Proceedings Concerning Possession of Leased Premises and Relief Against Forfeiture / Two Notices of Motion: Plaintiff's Motion to Lift the Stay of the Writ of Execution and Defendant's Motion for Relief Against Forfeiture
Outcome
Plaintiff's motion to lift the stay was refused; defendant was granted relief against forfeiture subject to conditions.
Legal Topics
['relief Against Forfeiture' 'commercial Lease Arrears' 'writ of Possession' 'stay of Execution' 'payment of Rent' 'costs of Proceedings']
['property Law' 'leases' 'civil Procedure' 'costs'] ['relief Against Forfeiture' 'commercial Lease Arrears' 'writ of Possession' 'stay of Execution' 'payment of Rent' 'costs of Proceedings']

Case Brief

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Procedural Posture

Common Law Division Proceedings Concerning Possession of Leased Premises and Relief Against Forfeiture / Two Notices of Motion: Plaintiff's Motion to Lift the Stay of the Writ of Execution and Defendant's Motion for Relief Against Forfeiture

Legal Issues

  1. 1 ['Whether the stay of the writ of possession should be lifted.' 'Whether the defendant should be granted relief against forfeiture.' "Whether the plaintiff's notice of motion constituted an unequivocal act conveying an intention to terminate the lease and enforce the right to possession." 'What conditions, including payment of arrears, interest and costs, should attach to any relief against forfeiture.' 'Whether costs should be ordered on an indemnity basis.']

Ratio Decidendi

The plaintiff's notice of motion was properly entertained and constituted an unequivocal act indicating the plaintiff's intention to terminate the lease and enforce possession, but relief against forfeiture should nevertheless be granted. Although the defendant had an unsatisfactory history of late rent payment and breached the 11 December 2006 agreement, the plaintiff did not act unreasonably in seeking to lift the stay. However, the defendant's defaults were not a deliberate disregard of his obligations, and evidence of a regular future monthly income from his established software business made it likely that he could pay rent when due. The Court therefore refused to lift the stay and...

Court Disposition

Plaintiff's motion to lift the stay was refused; defendant was granted relief against forfeiture subject to conditions.

Orders

  • ["The orders sought in paras 1 and 2 of the plaintiff's notice of motion filed 12 February 2007 are refused." "On the defendant's notice of motion, order that the defendant be granted relief against forfeiture subject to the following conditions:" "That the defendant pay to the plaintiff's solicitors within seven...