Wynsix Hotels (Oxford St) Pty Ltd v Toomey

Wynsix Hotels (Oxford St) Pty Ltd brought an action against its tenant, Toomey, for non-payment of rent. The landlords also claimed relief from forfeiture due to an appointment of a receiver by themselves. The dispute was heard in the New South Wales Supreme Court. The primary issue before the court was whether the appointment of a receiver by the landlords constituted a breach of the lease agreement, thereby entitling the tenant to relief from forfeiture. Additionally, the court had to determine whether a notice under section 129 could be withdrawn and consider the implications of a potential windfall profit to the landlords if relief were not granted.

The court examined the evidence presented, particularly focusing on a report commissioned by the landlords. Conflicting testimonies emerged regarding the purpose of the report, leading the court to conclude that determining whether the report was predominantly for the current litigation was a question of fact. The court applied the Evidence Act 1995, section 119, to assess the admissibility of the report. The landlords argued that the report was commissioned for the purpose of their investment decision, thus maintaining its admissibility despite its potential relevance to the litigation. The tenant contested this, asserting that the report's primary purpose was to bolster their litigation position.

In its decision, the court found that the appointment of a receiver did not constitute a breach of the lease agreement. The court emphasised that the landlords' actions were taken in the context of their investment strategy, and not as a punitive measure against the tenant. Regarding the withdrawal of the section 129 notice, the court held that such a notice could be withdrawn under specific circumstances. However, the court noted that the potential windfall profit to the landlords if relief were not granted did not automatically entitle the tenant to relief. The court balanced the equities of the situation and determined that the landlords were not unjustly enriched by the circumstances.

The final orders of the court did not grant relief to the tenant. The court upheld the landlords' right to appoint a receiver and did not find a breach of the lease agreement. The court also upheld the admissibility of the report commissioned by the landlords, concluding that it was not predominantly for the purpose of the current litigation. The tenant's application for relief from forfeiture was dismissed.