Ell v Cisera - [2001] NSWSC 242

CITATION: Ell v Cisera [2001] NSWSC 242

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2016/00

HEARING DATE(S): 6, 9, 18-20 October and 10 November 2000

JUDGMENT DATE:
4 April 2001

PARTIES :

Richard Ell t/as GNP Printing (P)
Dino Cisera (D)

JUDGMENT OF: Hamilton J

COUNSEL : H Thurairajah, Sol (P)
D L Oliveri, Sol (D)

SOLICITORS: Thurai Rajah Lawyers (P)
Oliveri Solicitors (D)

CATCHWORDS: LANDLORD AND TENANT [19] - Duration of term - Holding over after expiry of term - Holding over from month to month - Terms of holding over - Applicability of lease - Proviso for re-entry on non payment of rent for 14 days - Whether applicable.

CASES CITED: Bowes v Croll (1856) 6 E & B 255; 119 ER 859
Bradbury v Grimble & Co [1920] 2 Ch 548
Cole v Kelly [1920] 2 KB 106
Ell v Cisera [2000] NSWSC 768
Ell v Cisera [2000] NSWSC 961
Elrington v Judd (1964) 64 SR (NSW) 150
Glenbond Pty Ltd v The International House Pty Ltd NSWSC Young J 22 June 1988 unreported
Haldane v Johnson (1853) 8 Ex 689; 155 ER 1529
W D Duncan, Commercial Leases in Australia (3rd ed, 1998) 79, 318
Hill & Redman's Law of Landlord and Tenant A[206]
Andrew Lang, Leases and Tenancies in New South Wales (1976) [1203]
Redfern & Cassidy, Australian Tenancy Practice and Precedents [30 65]
Woodfall’s Law of Landlord and Tenant (1994) [7.094]

DECISION: Lease forfeited by re-entry.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

HAMILTON J

WEDNESDAY, 4 APRIL 2001

2016/00 RICHARD ELL t/as GNP PRINTING v DINO CISERA

JUDGMENT

1 HIS HONOUR: I have already delivered two judgments in this troublesome matter: Ell v Cisera [2000] NSWSC 768 ("my first judgment") and Ell v Cisera [2000] NSWSC 961 ("my second judgment"). It concerns a commercial lease ("the commercial lease") granted by the defendant to the plaintiff over premises at Darlinghurst (“the premises”) for the term of 18 months from 18 January 1999 to 17 July 2000 with an option of renewal for a further term of 18 months for use as a printing workshop. There were problems about the payment of rent. On 17 March 2000 the defendant locked the plaintiff out of the premises. The defendant then discovered there was substantial staining of the floor by ink and oil. Thereafter there were proceedings in this Court and an interlocutory injunction application before Santow J was on 6 April 2000 compromised by an agreement that the plaintiff might go back into the premises to carry out work to reinstate damage to the floor; that if adequate reinstatement were effected then the plaintiff should resume occupation under the commercial lease; but that if adequate reinstatement were not effected the commercial lease should be taken to have been validly terminated by the re-entry of 17 March 2000 and the defendant would have a lien over a printing machine to secure the cost of the defendant himself carrying out the reinstatement (“the compromise agreement”) (see…

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 Ell v Cisera

Details

AGLC: Ell v Cisera [2001] NSWSC 242
Case: [2001] NSWSC 242
Decision Date: 4 April 2001

CaseChat Overview and Summary

Ell v Cisera involved a dispute between the plaintiff, Ell, and the defendant, Cisera, regarding the tenancy agreement on a property. The case was heard in the Supreme Court of Victoria. The central issue revolved around the duration of the tenancy and the rights and obligations of the parties after the initial lease term had expired.

The legal question the court had to resolve was whether the lease continued on a month-to-month basis after the initial term had expired, and if so, what the terms of that holding over were. Specifically, the court needed to determine if a clause allowing re-entry on non-payment of rent for 14 days was applicable to the month-to-month tenancy. The court considered whether the terms of the original lease, including the re-entry provision, remained in force or if they were superseded by the implied terms of a periodic tenancy.

The court found that the lease did indeed continue on a month-to-month basis after the initial term had ended. It held that the re-entry provision for non-payment of rent remained applicable in the month-to-month arrangement. The court reasoned that unless expressly excluded by the terms of the holding over, the conditions of the original lease continued to apply. Therefore, the defendant could still enforce the re-entry clause on non-payment of rent for 14 days. The court’s decision confirmed that the original lease terms, including the re-entry clause, were not extinguished by the transition to a periodic tenancy.

Orders