Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2007] NSWSC 92

New South Wales Supreme Court

CITATION : Greek Macedonian Club Limited v Pan Macedonian Greek Brotherhood NSW Limited [2007] NSWSC 92

HEARING DATE(S) : 23-24 August, 28-29 August 2006

JUDGMENT DATE : 16 February 2007

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : (1) Declare plaintiff entitled to a leasehold estate in the premises for a term of ten years from 1 July 2003 to 30 June 2013 at a rent of $40,000 per annum. (2) Order that defendant execute and deliver to plaintiff a lease in registrable form complying with the declaration in order 1 and containing such other usual and reasonable terms and conditions as may be agreed by the parties and failing agreement determined by the court. (3) Upon undertaking of plaintiff to Court to pay to defendant all arrears of rent under the lease, order by way of relief against forfeiture that the defendant be permanently restrained from exercising any power of re-entry granted by or under the lease, in reliance upon any default of the plaintiff in respect of payment of rent to date. (4) Cross claim for possession dismissed. (5) No order as to costs, to intent that each party bear its own costs.

CATCHWORDS : EQUITY – Estoppel – Proprietary estoppel – where plaintiff with encouragement of defendant transfers property to defendant in reliance upon assumption known to defendant that plaintiff will have lease of other property of defendant at reduced rental – held, equitable proprietary estoppel made out resulting in equitable leasehold estate – CONVEYANCING - Leases – termination – default in payment of rent - EQUITY – Relief against forfeiture - whether lessee entitled to relief against forfeiture – where aspect of wilfulness in default – where previous flexible relationship between parties – where long history of reliable payment of rent – where lessor amply protected against future default – where forfeiture would produce great windfall benefit to lessor – where lessee did not admit breach – whether admission of breach essential precondition to grant of relief against forfeiture – COSTS – Relief against forfeiture.