Dee Vine Group Pty Ltd v Palais Reception Centre Pty Ltd

Supreme Court

New South Wales

Medium Neutral Citation:

Dee Vine Group Pty Ltd v Palais Reception Centre Pty Ltd [2019] NSWSC 1462

Hearing dates:

22 October 2019

Date of orders:

23 October 2019

Decision date:

23 October 2019

Jurisdiction:

Equity - Real Property List

Before:

Kunc J

Decision:

Relief against forfeiture of sub-lease granted on terms

Catchwords:

EQUITY — Equitable remedies — Relief against forfeiture — Leases

Legislation Cited:

Conveyancing Act 1919 (NSW)

Cases Cited:

Batiste v Lenin [2002] NSWCA 316; (2002) 11 BPR 20,403
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2012] NSWSC 251; (2012) 16 BPR 31,089
Gill v Lewis [1956] 2 QB 1
Macquarie National Health Clinic Pty Limited v Sydney South West Area Health Service [2010] NSWCA 268; (2010) 15 BPR 28,563

Category:

Principal judgment

Parties:

Dee Vine Group Pty Ltd ACN 616768195 (Plaintiff)

  Palais Reception Centre Pty Ltd ACN 083 333 760 (Defendant)

Representation:

Counsel:

 

P D Weinberger; A Jordan (Plaintiff)
M J Dawson; D F Elliott (Defendant)

 

Solicitors:

  Gillis Delaney (Plaintiff)
Diamond Conway (Defendant)

File Number(s):

2019/301649

Publication restriction:

No

EX TEMPORE Judgment (REVISED)

Summary

1. The Albert Palais (the “Premises”) has stood in Catherine Street, Leichhardt since 1934. Originally a dance hall, it is now a “reception centre”.

2. By a sub-lease dated 11 July 2017 (the “Sub-Lease”) the defendant, Palais Reception Pty Ltd (“Palais”) sub-lets the Premises to the plaintiff, Dee Vine Group Pty Ltd (“Dee Vine”).

3. These proceedings are an application by Dee Vine against forfeiture of the Sub-Lease based upon Dee Vine’s non-payment of rent and other alleged non-monetary breaches.

4. For the reasons which follow, the Court is satisfied that relief against forfeiture should be granted, albeit on strict terms.

5. Mr D Weinberger of Counsel appeared with Mr A Jordan of Counsel for Dee Vine. Mr M Dawson of Counsel appeared with Mr D Elliott of Counsel for Palais.

The Sub-Lease

6. The Sub-Lease is expressed to commence on 7 August 2017 and terminate on 5 August 2023, with an option to renew for a further three year term. Its terms included provisions set out in four annexures and a memorandum (the “Memorandum”).

7. The relevant provisions as to payment of rent are set out in Item 1, Annexure 1:

“2.   In the second year of the lease the yearly rent of $182,0000.00 plus GST by calendar monthly payments in advance of $15,166.67 plus GST, the first of such monthly payments to be made on the 7th day of August 2018 and thereafter on the 7th day of each month;

3.   In the third year of the lease the yearly rent of $208,000.00 plus GST by calendar monthly payments in advance of $17,333.33 plus GST, the first of such monthly payments to be made on the 7th day of August 2019 and thereafter on the 7th day of each month;”

8. Annexure 1 also contains:

“ITEM 3   USER

(Covenant 2.02 of Memorandum A1911784)

The Sub-Tenant will not without the written authority of the Landlord’s use or occupy the…