Lewkovitz v Dover

Lewkovitz was the tenant of a retail premises in Adelaide, South Australia, which Dover owned. The dispute arose when Dover terminated the lease and sued Lewkovitz for arrears and damages. Lewkovitz counter-claimed for an accounting of the lease, alleging that Dover had engaged in unconscionable conduct by terminating the lease and then selling the property to a third party. The matter was heard in the Supreme Court of South Australia.

The court had to determine whether Dover had engaged in unconscionable conduct and, if so, whether this conduct affected the enforceability of the lease. The court also needed to decide whether the lease had been properly terminated and if Lewkovitz was liable for any arrears or damages. Furthermore, the court had to account for the various financial transactions between the parties, including the sale of the property and the costs of the fit-out.

The court found that Dover had engaged in unconscionable conduct by terminating the lease and selling the property, which affected the enforceability of the lease. However, the court also found that Lewkovitz had repudiated the lease prior to Dover's termination. The court held that the termination was valid, and Lewkovitz was liable for arrears and damages. The court also held that Lewkovitz was not entitled to a credit for the costs of the fit-out, as these costs were not recoverable under the terms of the lease. The court ordered that Lewkovitz pay Dover the sum of $109,967.64, plus interest, and that Dover was not entitled to any credit for the costs of the fit-out.

In summary, the court found in favour of Dover, ordering Lewkovitz to pay damages and rejecting the unconscionable conduct claim. Each party was ordered to pay their own costs.