Skydale v Maher [2000] NSWSC 644

New South Wales Supreme Court

CITATION : Skydale v Maher [2000] NSWSC 644 CURRENT JURISDICTION: Common Law FILE NUMBER(S) : SC 10557/00 HEARING DATE(S) : 26-27 June 2000 JUDGMENT DATE : 6 July 2000

Skydale Pty Limited (Plaintiff) PARTIES : v Thomas Frederick Maher (Defendant) JUDGMENT OF : Davies AJ

COUNSEL : P: Mr D M Flaherty D: Mr C F Hodgson SOLICITORS : P: Grahams D: Rockliffs CATCHWORDS : Possession - whether lease forfeited - whether rent and moneys unpaid - whether demand for payment LEGISLATION CITED : Local Government Act 1993, s 569 DECISION : See paragraph 37

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

DAVIES AJ

6 JULY 2000 10557/00 - SKYDALE PTY LIMITED v Thomas Frederick MAHER JUDGMENT 1 HIS HONOUR: Skydale Pty Limited ("Skydale") is the owner and lessor of a motel known as the Lismore City Motor Inn ("the motel"). Thomas Frederick Maher, the trustee of the Lismore City Motor Inn Trust is the lessee of the motel. Skydale claims that, by service of the statement of claim on 17 March 2000, it forfeited the lease for non-payment of moneys. Skydale seeks, inter alia, judgment for possession. 2 Although the lease commenced only recently, 1 July 1999, the case is complicated by the fact that there was a prior lease when Mr Maher was conducting the motel in his capacity as trustee of the Shields Family Trust and even earlier when Gail Shields was trustee of the Shields Family Trust. There was no accounting as of the end of one tenancy and the commencement of another. Claims later made on Mr Maher included moneys said to be outstanding in respect of the earlier tenancies. This defect was carried through to some extent in the statement of claim. Moreover, Mr Maher made payments haphazardly, without keeping records which attributed his payments to specific obligations. Accordingly, it has been difficult to work out what became due and what was paid under the subject lease. 3 As the statement of claim claims that the lease was forfeited on the day of its service, 17 March 2000, for non-payment of rent and other moneys due under the lease, it is the monetary obligations due under the lease as at that date with which we are concerned. The forfeiture clause provided as follows: