Van der Velde v Marklyn Enterprises P/L

Van der Velde was the landlord of hotel premises which were leased to Marklyn Enterprises P/L, a company that held liquor and gaming licences. Marklyn Enterprises defaulted on the lease, leading to the landlord determining the lease and re-entering into possession. The tenant companies are currently in the process of winding up. The landlord subsequently obtained interim licences and resumed trading on the premises, but is using some of the tenant’s property. The lease contained a clause for a lien in favour of the landlord in the event of the tenant’s default. The central issue for the court was whether this lien was valid and enforceable.

The court considered whether the lien was a valid and enforceable term of the lease. The court noted that the lien was not uncommon in leases of premises that require licences, and that it was intended to secure the landlord’s claim for unpaid rent and other outgoings in the event of the tenant’s default. The court also noted that the lien was expressly stated in the lease, and that there was no evidence that it was unconscionable or unreasonable. The court found that the lien was valid and enforceable, and that the landlord was entitled to retain the tenant’s property until the tenant’s debts were paid.

The court further considered whether the landlord was entitled to use the tenant’s property in resuming trading on the premises. The court noted that the landlord had obtained interim licences and was therefore entitled to resume trading. The court also noted that the landlord was entitled to use the tenant’s property in resuming trading, as this was necessary to mitigate the landlord’s loss. The court found that the landlord was entitled to use the tenant’s property in resuming trading, but that the landlord must account to the tenant for any profits made from the use of the property.

The court ordered that the lien was valid and enforceable, and that the landlord was entitled to retain the tenant’s property until the tenant’s debts were paid. The court also ordered that the landlord was entitled to use the tenant’s property in resuming trading, but that the landlord must account to the tenant for any profits made from the use of the property.