Chittick v Galea [2007] NSWSC 38

New South Wales Supreme Court

CITATION : Chittick v Galea [2007] NSWSC 38 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 31 January 2007

JUDGMENT DATE : 6 February 2007

JURISDICTION : Equity

JUDGMENT OF : Hammerschlag J

DECISION : Relief against forfeiture granted

CATCHWORDS : LEASE - Notice to quit - breach of covenant to pay rent and discretion to refuse the grant of relief against forfeiture.

M.K. & J.A. Roche Pty. Ltd v Metro Edgley Pty. Ltd [2005] NSWCA 39 CASES CITED : Leonida v Scotson Pty Limited (1984) NSW ConvR Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) 2 BPR 9652 Bank of Baroda v Panessar [1987] 1 Ch 335

Ronald John Chittick & Warren Michael Chittick (Plaintiffs) PARTIES : Paul Galea (First Defendant) Mary Galea (Second Defendant)

FILE NUMBER(S) : SC 006001/2006

COUNSEL : Mr B DeBuse (Plaintiffs) Mr L Ellison SC (Defendants)

SOLICITORS : Reimer Winter Williamson (Plaintiffs) Blunden & Montgomery (Defendants)

- 12 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

Hammerschlag J

6 February 2007

2006 / 06001 Chittick & Ors. v Galea & Ors. JUDGMENT 1 The plaintiffs, Ronald John Chittick and his son Warren Michael Chittick, are lessees from the defendants Paul Galea and Mary Galea, under a registered lease AB963737U ("the lease") of a property being Lot 1 in Deposited Plan 776645 otherwise known as Lot 1 Greendale Road, Greendale (or Wallacia). The commencement date of the lease is 1 December 2003 and it will expire on 30 November 2008. The lease was entered into after the plaintiffs had exercised an option pursuant to a predecessor lease ("the old lease") (number 6635484E) cl 22 of which provided for the option and for the parties to agree upon a new rent following its exercise. 2 The uncontested evidence is that the plaintiffs have been the lessees of the land since 1992, have made improvements to it and currently have on the land over 60 holstein cows. No dairy in the sense of the production of milk has been operated on it for a number of years.