Reported Decision: (2000) 10 BPR 18,085
[2001] ANZ ConvR 573
New South Wales
Supreme Court
CITATION: Leads Plus Pty Ltd v Kowho Intercontinental Pty Ltd [2000] NSWSC 459 CURRENT JURISDICTION: Equity Division FILE NUMBER(S): SC 2420/2000 HEARING DATE(S): 18/05/2000 JUDGMENT DATE: 18 May 2000 PARTIES :
Leads Plus Pty Limited (P)
Kowho Intercontinental Pty Limited (D)JUDGMENT OF: Young J
COUNSEL : M Cashion SC (P)
J B Whittle SC and D Burwood (D)SOLICITORS: Henry Davis York (P)
Truman Hoyle (D)CATCHWORDS: EQUITY [87]- Relief against forfeiture- Option- Not exercised in due time- Power to grant relief against forfeiture, but only in exceptional cases- No arguable case that present matter exceptional. - LANDLORD & TENANT [41] Relief against forfeiture- Option to renew- Not exercised in due time- Extent to which relief available. CASES CITED: Bragg v Alam [1981] 1 NSWLR 668
Harries v Bryant (1827) 4 Russ 89; 38 ER 738
Hillier v Goodfellow (1988) V Conv R 54-310
Legione v Hateley (1983) 152 CLR 406DECISION: Interlocutory injunction refused.
THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
YOUNG J
THURSDAY 18 MAY 2000
2420/00 - LEADS PLUS PTY LIMITED V KOWHO INTERCONTINENTAL PTY LIMITED
JUDGMENT
1 HIS HONOUR: This is an application for an interim injunction by a tenant against the landlord in respect of the tenant's failure properly to exercise an option for a renewed lease over premises in Harris Street, Ultimo.
2 The parties entered into a lease of the subject premises for three years terminating on 13 May 2000. Clause 17.1 of the lease was as follows:
"If the Lessee desires to take a renewed Lease of the Demised Premises for the further Term...from the expiration of the Term and:
(a) gives to the Lessor previous notice of such desire not less than three months nor more than six months prior to the expiration of the Term; and
(b) is not then or at any time thereafter prior to commencement of such renewed Lease in default under the provisions of this Lease whether express or implied; and
(c) provided the Lessee has duly and punctually paid the rent and other moneys, if any, hereunder,
the Lessor will at the cost and expense of the Lessee grant to the Lessee a renewal of this Lease for the said further Term..."
3 Under that clause, the last day for exercising the option was probably 13 February 2000, though argument could be put that it was 12 February 2000. It does not matter because the evidence clearly is that the earliest day on which the tenant purported to exercise the option was 14 February 2000.
4 The evidence for the plaintiff tenant is that a fax giving notice of its desire to exercise the option was sent to the lessor's managing agents on the late morning of 14 February 2000 and that there was a conversation between the principal of the lessee, Mr Graham, and the managing agents confirming that the fax had been received. The…
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- Case
- [2000] NSWSC 459
- Decision Date
CaseChat Overview and Summary
The court considered whether there were exceptional circumstances that would justify relief against forfeiture. It was noted that relief against forfeiture is typically granted sparingly and only in exceptional cases. The court examined whether the present matter met the criteria for such relief. The evidence suggested that while the option was not exercised within the strict timeframe, there were mitigating factors such as the nature of the relationship between the parties and the absence of prejudice to the respondent. However, the court found that there was no arguable case that the present circumstances were exceptional enough to warrant relief against forfeiture.
After thorough consideration, the court held that the lease's terms were clear and that the failure to exercise the option to renew within the stipulated time was a decisive factor. The court determined that the equitable principles did not extend to granting relief in this instance, as the case did not meet the stringent requirements for such an exception. Consequently, the respondent was entitled to enforce the forfeiture clause, and the appellant's application for relief against forfeiture was dismissed. The court's decision reinforced the importance of strict compliance with lease terms, particularly regarding options to renew.
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