Kyriacou v Manakis - [2006] NSWSC 804

CITATION: Kyriacou v Manakis [2006] NSWSC 804

HEARING DATE(S): 28/07/06

JUDGMENT DATE :
28 July 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 07/28/2006

DECISION: 1. Direct the legal representatives of the parties to bring in a short minute of order in accordance with these reasons; 2. Costs of this application will be costs in the proceedings.

CATCHWORDS: LANDLORD & TENANT – Termination of tenancy – Relief against forfeiture – Plaintiffs in possession of commercial premises pursuant to lease – Lease terminated for failure to pay rent – Plaintiffs excluded from premises – Whether plaintiffs entitled to interlocutory injunction in aid of relief against forfeiture – Where plaintiffs offer no undertaking to pay outstanding rent plus interest and costs - LANDLORD & TENANT – Fixtures and fittings – Plaintiffs installed various fixtures and fittings in leased commercial premises – Pursuant to lease agreement, defendants made contribution to cost of fit-out of premises – Lease agreement gave defendants right to sell or dispose of plaintiffs’ property if lease terminated for failure to pay rent – Lease terminated for failure to pay rent – Plaintiffs excluded from premises – Dispute between parties as to ownership of fixtures and fittings – Defendants intend to re-let premises with existing fixtures and fittings if desired by new tenant – Whether serious question to be tried that fixtures and fittings are property of plaintiffs – Whether serious question to be tried that defendants not entitled to re-let premises with existing fixtures and fittings – Whether plaintiffs entitled to interlocutory injunctive relief restraining defendants from re-letting premises with existing fixtures and fittings – Injunctive relief granted.

CASES CITED: Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Company of NSW Ltd (1970) 2 BPR 9562
Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837
D’Arcy v Burelli Investments Pty Limited (1987) 8 NSWLR 317
Pugh v Arton (1869) LR 8 Eq 626
A. G. Lang, NSW, Conveyancing Law and Practice, CCH Australia
McMahon's( Transport) Pty Limited v Ebbage [1999] 1 Qd R 185

PARTIES: Chris Kyriacou & 2 Ors
v
John Manakis & 1 Or

FILE NUMBER(S): SC 3797/06

COUNSEL: Plaintiffs: J Nicopoulos
Defendants: T Tzovaras

SOLICITORS: Plaintiffs: Legal Service Group
Defendants: Tzovaras Legal

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Friday, 28 July 2006

3797/06 Chris Kyriacou & 2 Ors v John Manakis & 1 Or

JUDGMENT

1 HIS HONOUR: These proceedings were commenced on 18 July 2006 when the plaintiffs sought urgent interlocutory relief to protect what they claimed to be their rights under a lease of a shop at 185 Queen Street, Campbelltown. Until the defendants took possession of the premises, they were used as a "Homer’s Burgers, Seafood and Chicken" food outlet.

2 On 18 July 2006, the defendants gave certain undertakings to preserve the status quo for a short period. Those undertakings were extended without admissions up to today. The undertakings have not been further extended and, accordingly,…

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 Kyriacou v Manakis

Details

AGLC: Kyriacou v Manakis [2006] NSWSC 804
Case: [2006] NSWSC 804
Decision Date: 28/07/2006

CaseChat Overview and Summary

The case of Kyriacou v Manakis involved a dispute between the plaintiffs, who were in possession of commercial premises under a lease, and the defendants, who were the landlords. The dispute arose from the termination of the lease due to the plaintiffs' failure to pay rent, which led to their exclusion from the premises. The plaintiffs sought interlocutory injunctive relief to prevent the defendants from forfeiting the lease and from re-letting the premises with their installed fixtures and fittings.

The primary legal issues before the court were whether the plaintiffs were entitled to relief against forfeiture of the lease, and whether the plaintiffs were the rightful owners of the fixtures and fittings installed in the leased premises. Additionally, the court had to determine whether the plaintiffs were entitled to an interlocutory injunction to restrain the defendants from re-letting the premises with the existing fixtures and fittings.

The court examined the terms of the lease agreement, which provided that the defendants had the right to sell or dispose of the plaintiffs' property if the lease was terminated for failure to pay rent. The court also considered the contribution made by the defendants towards the cost of the fit-out of the premises. The court found that the plaintiffs had failed to offer an undertaking to pay the outstanding rent plus interest and costs, which was a necessary condition for relief against forfeiture. However, the court held that there was a serious question to be tried regarding the ownership of the fixtures and fittings. The court concluded that the plaintiffs were likely the rightful owners of the fixtures and fittings and granted the plaintiffs an interlocutory injunction to restrain the defendants from re-letting the premises with the existing fixtures and fittings.

The court's final orders included the grant of an interlocutory injunction to the plaintiffs, restraining the defendants from re-letting the premises with the existing fixtures and fittings, pending the determination of the ownership of the fixtures and fittings and the broader issues in the case.

Orders