Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837

New South Wales Supreme Court

CITATION : Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837

HEARING DATE(S) : 16/08/05

JUDGMENT DATE : 17 August 2005

JUDGMENT OF : White J

DECISION : See para 63 of judgment.

CATCHWORDS : REAL PROPERTY - Leases - Lessor terminated lease by re-entering leased premises for lessee's default in respect of rent payments - Deed of variation allowed setting off a proportion of expenses incurred in pursuit of a development application against rent payable - Obligation to pay rent an essential term of the original lease - Whether arguable that time made inessential by deed of variation - Dispute about amounts set off and essentiality of time for payment - PRACTICE AND PROCEDURE - Application to extend interlocutory injunction restraining lessor from taking physical possession of the leased premises - Serious question as to whether lessee is entitled to relief against forfeiture - Whether lease has been determined and status quo is that lessee is not entitled to possession - Held that lessee's right in equity to revive his interest in the property did not end at termination - Balance of convenience favours the lessee - Injunction extended on terms.

LEGISLATION CITED : Supreme Court Act 1970 (NSW)

Pioneer Quarry (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9562 Brooker's Colours Ltd v Sproules (1910) 10 SR (NSW) 839 Platt v Ong [1972] VR 197 Riddington v Pye (1989) 9 BPR 16,643 Sufigoe Pty Ltd v Amber Properties Pty Ltd, (01/08/95, unreported, McClelland CJ in Eq) CASES CITED : Horwath Corporate Pty Ltd v Huie [1999] NSWSC 242 Kumaragamage v Rallis [2001] NSWSC 466 MI Design Pty Ltd v Dunecar Pty Ltd (2000) 10 BPR 18,387 Islam v South Sydney City Council (1998) 9 BPR at 16,865 Tannous v Cipolla Bros Holdings Pty Ltd [2001] NSWSC 236