International Business College Pty Ltd v Alphacrucis College Ltd (previously known as 'Southern Cross College of the Assemblies of God in Australia Ltd') & anor [2009] NSWSC 1088

New South Wales Supreme Court

CITATION : International Business College Pty Ltd v Alphacrucis College Ltd (previously known as 'Southern Cross College of the Assemblies of God in Australia Ltd') & anor [2009] NSWSC 1088

HEARING DATE(S) : 14-15 September 2009 JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

EX TEMPORE JUDGMENT DATE : 16 September 2009

DECISION : Summons dismissed with costs. Cross-defendant to pay cross-claimant $55,164.

CATCHWORDS : LANDLORD AND TENANT – termination of the tenancy – generally – where plaintiff seeks declaration that defendant not entitled to terminate and for relief against forfeiture – Whether defendant entitled to terminate lease – where plaintiff held to be in arrears – where defendant entitled to terminate lease for two separate defaults on lease – quantum of arrears – Whether plaintiff entitled to relief against forfeiture – discretionary considerations – where rent not brought up to date – where no evidence that plaintiff would be able to service lease in the future – where bond would be inadequate to cover present or future defaults –relief against forfeiture refused

LEGISLATION CITED : (NSW) Conveyancing Act 1919 s129

CATEGORY : Principal judgment

Batiste v Lenin [2002] NSWCA 316, (2002) 11 BPR 20,403 Chandlers-Chandless v Nicholson [1942] 2 KB 321 Greek Macedonian Club Limited v Pan Macedonia Greek Brotherhood NSW Pty Limited [2007] NSWSC 92 CASES CITED : Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co of NSW Limited (1970) 2 BPR 9562 Shiloh Spinners limited v Harding [1973] AC 691 Starside Properties Limited v Mustapha [1974] 2 All ER 567 Steiper v Devoit Pty Limited (1977) 2 BPR 9602