Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2)

Dee-Tech Pty Ltd sought relief from forfeiture of a lease against Neddam Holdings Pty Ltd. Dee-Tech, the lessee, argued against the forfeiture and sought an order for costs. The court was tasked with determining the terms of payment for outgoings, the appropriateness of costs orders, and the conditions under which relief from forfeiture should be granted. The primary legal issues revolved around the interpretation of lease terms, the calculation and allocation of costs, and the conditions for relief from forfeiture.

The court found that while there was no express term in the lease specifying when contributions to outgoings were due, a reasonable time for payment was within 30 days of the delivery of invoices. The court also noted that there was no evidence of a variation of the lease to alter the payment of interest. Regarding costs, the court held that despite the general principle that costs follow the event, the multiple issues raised and the late amendments by Dee-Tech significantly increased the costs. Consequently, the court ordered Dee-Tech to pay two-thirds of the costs of the account. The court also examined the offer of compromise, noting that the failure to accept the offer was not unreasonable due to its ambiguity and the fact that it did not address the claim for interest. The court rejected the application for indemnity costs, as the lease did not mandate such costs on an indemnity basis.

Regarding relief against forfeiture, the court considered whether such relief should be conditional upon compliance with earlier orders. Under the Conveyancing Act 1919, section 133F, the court imposed conditions to avoid future litigation. The court also evaluated the principle that the lessee seeking relief against forfeiture should pay costs, considering all circumstances. Given that Dee-Tech's resistance to the forfeiture claim was beyond what was reasonable and that significant time was spent on issues in which breaches were not established, the court ordered the lessor to pay half of the lessee's costs. Finally, for the indemnity costs concerning the subpoena application, the court found that the plaintiff's failure to comply with a court order and the delinquency in the conduct of the litigant warranted an order for indemnity costs, including an order against the director appearing for the plaintiff company on the motion.