Constantine v Sanders - [2007] NSWSC 250

CITATION: Constantine v Sanders [2007] NSWSC 250

HEARING DATE(S): 26, 28 February, 16, 19 March 2007

JUDGMENT DATE :
23 March 2007

JURISDICTION: Common Law Division

JUDGMENT OF: Studdert J

DECISION: (1) The orders sought in paras 1 and 2 of the plaintiff's notice of motion filed 12 February 2007 are refused. (2) On the defendant's notice of motion, order that the defendant be granted relief against forfeiture subject to the following conditions: (a) that the defendant pay to the plaintiff's solicitors within seven days the sum of $16,568.90 for unpaid rent and interest calculated up to 19 March 2007; (b) that the defendant pay the plaintiff's costs of the proceedings before me within twenty-one days of such costs being agreed, or in default of agreement within twenty-one days of their assessment and the issue of a certificate; (c) that the defendant pay the plaintiff's costs the subject of the agreement noted by the court on 11 December 2006 within twenty-one days of the determination of the amount pursuant to the procedure for their determination expressed in para 2 of that agreement.

LEGISLATION CITED: Administrative Decisions Tribunal Act
Retail Leases Act
Uniform Civil Procedure Rules

CASES CITED: Billson v Residential Limited (1992) 1 AC 494
Howard v Fanshawe (1895) 2 ChD 581
Mineaplenty Pty Limited v Trek 31 Pty Limited [2006] NSWSC 1203
Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co. of New South Wales Limited (1970) 2 BPR 9562
Price v Mayman (1948) SASR 241
Shiloh Spinners Ltd v Harding (1973) AC 691
Wilkinson v S & S Gikas Pty Limited [2006] NSWSC 1314
Wynsix Hotels (Oxford St) Pty Limited v Toomey [2004] NSWSC 236

PARTIES: Mary Constantine (Plaintiff)
Basil Charles Sanders (Defendant)

FILE NUMBER(S): SC 13727/06

COUNSEL: B.C. Kasep (Plaintiff)
N. Obrart (Defendant)

SOLICITORS: Truman Hoyle Lawyers (Plaintiff)
N/A (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

STUDDERT J

Friday 23 March 2007

13727/06 MARY CONSTANTINE v BASIL CHARLES SANDERS
JUDGMENT

1 HIS HONOUR: There are at present two notices of motion before me:

(i) The notice of motion filed by the plaintiff on 12 February 2007 seeking an order that the stay of the writ of execution issued on 31 October 2006 be lifted forthwith. (By this motion the applicant seeks other orders as to costs and the payment of monies.)

2 At the outset it is convenient to record the history which now brings the parties to this court. That history is conveniently recorded in the affidavit of Danielle Cavill sworn on 8 February 2007.

3 The plaintiff, Mary Constantine, is the owner of premises including lock-up shops known as 112B and 112C Burton Street, Darlinghurst (the subject premises). The subject premises were leased on 21 February 2005 to Keghouse Pty Limited but in the following month Keghouse assigned the lease, with the plaintiff’s consent, to the defendant, Basil Charles Sanders. The defendant paid $128,000 for the purchase from Keghouse…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Constantine v Sanders

Details

AGLC: Constantine v Sanders [2007] NSWSC 250
Case: [2007] NSWSC 250
Decision Date: 23 March 2007

CaseChat Overview and Summary

The case of Constantine v Sanders was heard by Studdert J in the Supreme Court of New South Wales, Common Law Division, who was asked to decide between two notices of motion. The first was filed by the plaintiff, Mary Constantine, seeking an order that the stay of the writ of execution issued on 31 October 2006 be lifted forthwith. The second was filed by the defendant, Basil Charles Sanders, seeking relief against forfeiture. The dispute concerned the lease of lock-up shops at 112B and 112C Burton Street, Darlinghurst, which the defendant had assigned from Keghouse Pty Limited with the plaintiff's consent. The defendant had been in default of rent payments since 24 November 2005, and despite several orders and agreements, had continued to default. The court had to decide whether the stay of the writ of possession should be lifted and whether the defendant should be granted relief against forfeiture.

The court found that the plaintiff's notice of motion was not unreasonable given the defendant's history of default. However, the court decided that relief against forfeiture should be granted to the defendant. This decision was based on the defendant's evidence of a new arrangement with a long-term customer in his computer software business, which would provide regular monthly income and enable him to meet his rent obligations in the future. The court also considered the defendant's past history of defaults, but concluded that he did not show a deliberate disregard for his obligations. The court imposed conditions on the grant of relief, including payment of arrears and interest, compliance with a previous agreement on costs, and payment of the plaintiff's costs of the proceedings. The court refused to order costs on an indemnity basis, stating that such orders should be determined on a case-by-case basis.

Orders