BATISTE & ORS v LENIN [2002] NSWCA 316

BATISTE & ORS v LENIN [2002] NSWCA 316

The appeal failed because the lease, read in its factual context and in light of its express terms including Articles 3.12, 11.02, 16.06, 20.02 and 28, imposed no obligation on the lessor to restore or repair the premises; without such an obligation Hazaran had no right to recoup refurbishment expenditure from rent. The trial judge's findings of extensive and continuing breaches, including non-payment of rent and outgoings and failure to comply with fire-related obligations, supported the conclusion that Hazaran repudiated the lease, and that repudiation was accepted by the lessor's cross-claim. The refusal of relief against forfeiture did not miscarry because payment of arrears was not...

Jurisdiction
Australia
Judgment Date
27 September 2002
Procedural Posture
Appeal From Judgment for Possession and Refusal of Relief Against Forfeiture of Lease / Court of Appeal Judgment
Outcome
Appeal dismissed with costs.
Legal Topics
['construction of Lease' 'arrears of Rent' 'relief Against Forfeiture' 'repudiation of Lease' 'recoupment and Set Off' 'right of Re Entry' 'conveyancing Act 1919 (nsw), S129' 'amendment of Statement of Claim']
['property Law' 'leases' 'contract Law' 'equity'] ['construction of Lease' 'arrears of Rent' 'relief Against Forfeiture' 'repudiation of Lease' 'recoupment and Set Off' 'right of Re Entry' 'conveyancing Act 1919 (nsw), S129' 'amendment of Statement of Claim']

Case Brief

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Procedural Posture

Appeal From Judgment for Possession and Refusal of Relief Against Forfeiture of Lease / Court of Appeal Judgment

Legal Issues

  1. 1 ['Whether the lessor was under an express or implied obligation to restore or repair the leased premises.' 'Whether the lessee was entitled to recoup expenditure on refurbishment or restoration from rent allegedly owed to the lessor.' 'Whether the lessee had repudiated the lease by breaches including non-payment of rent and failure to comply with fire orders.' 'Whether relief against forfeiture should have been granted despite arrears, non-rent breaches and the absence of notices under s129 of the Conveyancing Act 1919 (NSW).' 'Whether the trial judge erred by refusing a late amendment to the statement of claim.' 'Whether leave should be granted to add a further ground of appeal that the fire stair covenant was breached once and for all only.']

Ratio Decidendi

The appeal failed because the lease, read in its factual context and in light of its express terms including Articles 3.12, 11.02, 16.06, 20.02 and 28, imposed no obligation on the lessor to restore or repair the premises; without such an obligation Hazaran had no right to recoup refurbishment expenditure from rent. The trial judge's findings of extensive and continuing breaches, including non-payment of rent and outgoings and failure to comply with fire-related obligations, supported the conclusion that Hazaran repudiated the lease, and that repudiation was accepted by the lessor's cross-claim. The refusal of relief against forfeiture did not miscarry because payment of arrears was not...

Court Disposition

Appeal dismissed with costs.

Orders

  • ['Appeal dismissed with costs.']