CITATION: BATISTE & ORS v LENIN [2002] NSWCA 316 FILE NUMBER(S): CA 40335/02 HEARING DATE(S): 5 September 2002 JUDGMENT DATE:
27 September 2002PARTIES :
Donna Batiste - First Appellant
Hazaran Pty Ltd - Second Appellant
Chrystalis Holdings Pty Ltd - Third Appellant
Michael Petrovic Lenin - RespondentJUDGMENT OF: Sheller JA at 1; Giles JA at 75; Santow JA at 76
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT
FILE NUMBER(S) :3548/01 LOWER COURT
JUDICIAL OFFICER :Bryson J
COUNSEL: L J Aitken/J M Baxter - Appellants
M Walton SC/A S Bell/D Villa - RespondentSOLICITORS: Horowitz Bilinski - Appellants
Phillips Fox - RespondentCATCHWORDS: LEASES - construction of terms of lease - arrears of rent - failure to satisfy covenants/ conditions of lease - "rent free period" - obligation to restore and repair - relief against forfeiture - repudiation of lease - Conveyancing Act 1919 (NSW), s129 - set-off - recoupment - right of re-entry - amendment of statement of claim - application to add further ground of appeal LEGISLATION CITED: Fair Trading Act 1987 (NSW)
Conveyancing Act 1919 (NSW)CASES CITED: Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] 1 QB 137
Lee-Parker v Izzet [1971] 1 WLR 1688
The Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17
Shevill v The Builders Licensing Board (1982) 149 CLR 620
Ross T Smyth & Co Ltd v T D Bailey, Son & Co [1940] 3 All ER 60
Carr v J A Berriman Pty Ltd (1953) 89 CLR 327
Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26
Shiloh Spinners Ltd v Harding [1973] AC 691
Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 97145
Gill v Lewis [1956] 2 QB 1
Langley v Foster (1909) 10 SR (NSW) 54
Greville v Parker [1910] AC 335
Hayes v Gunbola Pty Ltd (1986) 4 BPR 97263
Dalla Costa v Beydoun (1990) 5 BPR 11379
Tutita Pty Ltd v Ryleaco Pty Ltd (1989) 4 BPR 97311
Jacob v Down [1900] 2 Ch 156
Stephens v Junior Army and Navy Stores, Ltd [1914] 2 Ch 516DECISION: Appeal dismissed with costs
CA 40335/02
ED 3548/01SHELLER JA
GILES JA
SANTOW JA
BATISTE & ORS v LENIN
The appeal was from a decision of Bryson J on 12 April 2002 which gave judgment for the defendant lessor for possession of the whole of the land known as the Great Northern Hotel, Newcastle (the Hotel). From this decision the three plaintiffs appealed claiming principally that the second plaintiff should be relieved against forfeiture of the lease upon terms.
On 15 November 1996 a lease of the Hotel was entered into between the defendant (the lessor) and the second plaintiff (the lessee) for a term of six years with an option to renew for a period…
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- AGLC
- Batiste v Lenin [2002] NSWCA 316
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- [2002] NSWCA 316
- Decision Date
CaseChat Overview and Summary
The parties to this appeal were Batiste (the appellant) and Lenin (the respondent). The dispute concerned the construction of a lease agreement, specifically relating to arrears of rent, the appellant's alleged failure to satisfy covenants and conditions of the lease, and the respondent's claim for relief against forfeiture. The appeal was heard in the Court of Appeal of New South Wales.
The primary legal issues before the Court of Appeal were whether the appellant had repudiated the lease by failing to satisfy its obligations, whether the respondent was entitled to exercise a right of re-entry, and whether the appellant was entitled to relief against forfeiture under section 129 of the *Conveyancing Act 1919* (NSW). Ancillary issues included the interpretation of a "rent free period" within the lease, the appellant's obligation to restore and repair the premises, and the availability of set-off or recoupment for certain expenses.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that the appellant's conduct, particularly its failure to pay rent and address repair obligations, constituted a repudiation of the lease. The "rent free period" was interpreted in a manner that did not excuse the appellant's ongoing rent obligations. The Court found that the appellant had not satisfied the conditions precedent for relief against forfeiture, as it had not demonstrated a willingness or ability to remedy its breaches. The respondent's right of re-entry was therefore upheld. The appeal was dismissed with costs.
The primary legal issues before the Court of Appeal were whether the appellant had repudiated the lease by failing to satisfy its obligations, whether the respondent was entitled to exercise a right of re-entry, and whether the appellant was entitled to relief against forfeiture under section 129 of the *Conveyancing Act 1919* (NSW). Ancillary issues included the interpretation of a "rent free period" within the lease, the appellant's obligation to restore and repair the premises, and the availability of set-off or recoupment for certain expenses.
The Court of Appeal dismissed the appeal, upholding the primary judge's findings. The Court reasoned that the appellant's conduct, particularly its failure to pay rent and address repair obligations, constituted a repudiation of the lease. The "rent free period" was interpreted in a manner that did not excuse the appellant's ongoing rent obligations. The Court found that the appellant had not satisfied the conditions precedent for relief against forfeiture, as it had not demonstrated a willingness or ability to remedy its breaches. The respondent's right of re-entry was therefore upheld. The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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