Wilkinson v S & S Gikas Pty Ltd [2006] NSWSC 1314

Wilkinson v S & S Gikas Pty Ltd [2006] NSWSC 1314

Relief against forfeiture is granted because, although the plaintiffs’ ability to pay future rent is in doubt, they have some resources and the rental is not large compared to their equity. Payment of arrears, legal costs, and locksmith costs is required, but the costs of the security guard are not to be made a condition since such costs were not caused by the plaintiffs' breach in a manner relevant to equitable relief. Payment of costs of proceedings is not a precondition, but plaintiffs are ordered to pay defendant’s costs.

Parties
First Plaintiff: John Paul Wilkinson; Second Plaintiff: Karen Therese Wilkinson; Defendant: S & S Gikas Pty Limited
Jurisdiction
Australia
Judgment Date
29 November 2006
Procedural Posture
Application for Relief Against Forfeiture / Final Hearing and Judgment
Outcome
Relief against forfeiture granted, subject to conditions.
Legal Topics
Relief Against Forfeiture, Termination of Tenancy, Equitable Remedies, Terms for Granting Relief
Equity Landlord and Tenant Relief Against Forfeiture Termination of Tenancy Equitable Remedies Terms for Granting Relief

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Parties

John Paul Wilkinson

First Plaintiff

Karen Therese Wilkinson

Second Plaintiff

S & S Gikas Pty Limited

Defendant

Procedural Posture

Application for Relief Against Forfeiture / Final Hearing and Judgment

Legal Issues

  1. 1 Whether relief against forfeiture of lease should be granted to the plaintiffs
  2. 2 What terms or conditions (including payment of arrears, legal expenses, costs of re-entry, and security guard costs) should be imposed for relief against forfeiture
  3. 3 Whether payment of the costs of the present proceedings ought to be a precondition for relief

Ratio Decidendi

Relief against forfeiture is granted because, although the plaintiffs’ ability to pay future rent is in doubt, they have some resources and the rental is not large compared to their equity. Payment of arrears, legal costs, and locksmith costs is required, but the costs of the security guard are not to be made a condition since such costs were not caused by the plaintiffs' breach in a manner relevant to equitable relief. Payment of costs of proceedings is not a precondition, but plaintiffs are ordered to pay defendant’s costs.

Court Disposition

Relief against forfeiture granted, subject to conditions.

Orders

  • Plaintiffs to pay $3,185 to defendant’s solicitor within 24 hours (legal expenses, locksmith fee, security guard attendance for two hours)
  • Plaintiffs to pay $5,815 into court within fourteen days as security for any additional costs or amounts as determined