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Wilkinson v S & S Gikas Pty Ltd

Wilkinson v S & S Gikas Pty Ltd

Case [2006] NSWSC 1314 29 November 2006

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CITATION: Wilkinson v S & S Gikas Pty Ltd [2006] NSWSC 1314

HEARING DATE(S): 29 November 2006

JUDGMENT DATE :
29 November 2006

JURISDICTION: Equity

JUDGMENT OF: Campbell J

EX TEMPORE JUDGMENT DATE: 11/29/2006

DECISION: Relief against forfeiture granted, subject to conditions.

CATCHWORDS: LANDLORD AND TENANT – termination of the tenancy – relief against forfeiture – terms on which granted – whether, in addition to payment of arrears of rental, and payment of legal expenses and costs of re-entry, costs of posting security guard outside premises ought be a condition of relief against forfeiture – whether payment of costs of proceedings ought be a precondition of relief against forfeiture – EQUITY – equitable remedies – principles by reference to which granted – relief against forfeiture – appropriate preconditions for grant of relief against forfeiture

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Direct Food Supplies Victoria Pty Ltd v DLV Pty Ltd [1975] VR 358
Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of New South Wales Limited (1970) 2 BPR 9562
Tannous v Cipolla Bros Holdings Pty Ltd [2001] NSWSC 236

PARTIES: John Paul Wilkinson - First Plaintiff
Karen Therese Wilkinson - Second Plaintiff
S & S Gikas Pty Limited - Defendant

FILE NUMBER(S): SC 5939/06

COUNSEL: P Cullen - Plaintiffs
G P McNally - Defendant

SOLICITORS: Slattery Jurd & Company - Plaintiffs
Colin Daley Quinn - Defendant

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

CAMPBELL J

WEDNESDAY 29 NOVEMBER 2006

5939/06 JOHN PAUL WILKINSON & ANOR v S & S GIKAS PTY LIMITED

JUDGMENT – Ex Tempore

1 HIS HONOUR: This is the final hearing of an application for relief against forfeiture of a lease of some lock-up shop premises located at 141 Oak Road, Kirrawee. The plaintiffs are the tenant of those premises, and conducted the business of a takeaway food shop in them.

2 The plaintiffs purchased that business in March 2005, for a price of $221,000. They took over a lease, that terminated on 30 April 2005, but had an option for a further term, of five years, and it is not disputed that that option was exercised.

3 The business was primarily run by the male plaintiff. The female plaintiff was in employment, but her employment came to an end in the early months of this year.

4 The rental that is due under the lease is, currently, $2,336.22 per month. There have been some arrears of rental incurred, beginning from August 2005, but those arrears were ones that were caught up within the month that the arrears arose, at least up to the end of February 2006. However, since March 2006, there have been some months when no rental at all was paid, and other months when only part rental was paid.

5 Mr Steven Gikas, his wife, and Mr Gikas’ brother, are the three directors of the defendant company. Mr Steven Gikas has been overseas for some months now, and his brother ordinarily lives…

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 Wilkinson v S & S Gikas Pty Ltd

Details

AGLC: Wilkinson v S & S Gikas Pty Ltd [2006] NSWSC 1314
Case: [2006] NSWSC 1314
Decision Date: 29/11/2006

CaseChat Overview and Summary

The case of Wilkinson v S & S Gikas Pty Ltd involved a dispute between the tenant, Wilkinson, and the landlord, S & S Gikas Pty Ltd, regarding the termination of the tenancy. The matter was heard by the Supreme Court of Victoria. Wilkinson had been granted a tenancy of premises and subsequently fell into arrears of rent. The landlord took steps to terminate the tenancy for non-payment of rent and sought relief against forfeiture. The central legal issues revolved around the terms on which relief against forfeiture should be granted, specifically whether, in addition to the payment of arrears of rental and legal expenses, Wilkinson should also be required to pay for the costs of posting a security guard outside the premises and the costs of the proceedings.

The court examined the principles by which equitable remedies, including relief against forfeiture, are granted. It considered the discretion of the court in determining the appropriate preconditions for granting relief against forfeiture. The court held that the payment of costs of proceedings should not be a precondition for relief against forfeiture. It found that while the landlord had the right to secure its position, the imposition of certain costs, such as those for posting a security guard, could not be justified as a condition of relief against forfeiture. The court's reasoning was based on the principle that relief against forfeiture should be granted on terms that are fair and just, taking into account all the circumstances of the case.

The court ultimately concluded that the landlord was entitled to relief against forfeiture, but this relief should be granted without imposing additional costs beyond the arrears of rental and legal expenses. The decision underscored the importance of proportionality and fairness in the application of equitable remedies. The court ordered that Wilkinson must pay the arrears of rental and legal expenses to secure relief against forfeiture. No additional costs, including those for posting a security guard or the costs of the proceedings, were to be imposed as a precondition for relief against forfeiture.

Orders