Water Wine & Juice Pty Ltd v Steve Konstantopoulos [2010] NSWSC 312

New South Wales Supreme Court

CITATION : Water Wine & Juice Pty Ltd v Steve Konstantopoulos [2010] NSWSC 312

HEARING DATE(S) : 7 and 8 April 2010

JUDGMENT DATE : 9 April 2010

JURISDICTION : Equity

JUDGMENT OF : White J

EX TEMPORE JUDGMENT DATE : 9 April 2010

1. Make declarations in accordance with paragraphs 1, 4 and 7 of the "relief claimed" in the amended statement of claim. 2. Order that within 28 days the defendants deliver to the plaintiff for execution by it of a new lease of the Premises, (as defined in paragraph 1 of the "relief claimed") for the period 15 December 2009 to 14 December 2012, in accordance with the provisions of the Lease (as defined in paragraph 1 of the "relief claimed" in the amended statement of claim), and otherwise do all things necessary on their part to be done to have such new lease executed and registered. 3. Order that the claims for relief in the amended statement of claim be otherwise dismissed. 4. Order that the amended cross-claim be dismissed. DECISION : 5. The exhibits may be returned after 28 days. 6. Order that the defendants pay the plaintiff's costs. 7. Reserve the proceedings for further consideration. 8. Give the parties liberty to restore on reasonable notice. 9. Order that the orders numbered 1 and 2 made on 16 December 2009 continue until the new lease is registered, or earlier further order.

CATCHWORDS : REAL PROPERTY – where lessee exercised option to renew lease – whether lessor validly terminated lease for breach – whether lessee entitled to relief against forfeiture - EQUITY – plaintiff not barred from seeking relief against forfeiture because denies breach of lease – lessee not precluded from denying breach of lease because makes alternative claim for relief against forfeiture - REAL PROPERTY – lessee's use of land outside leased premises did not constitute breach justifying termination of lease – no trespass by lessee – lessor consented to lessee's use of land outside leased premises for valuable consideration for term of lease – no variation of lease to include additional area – insufficient certainty of land to be subject to enforceable agreement for lease under Conveyancing Act, s 54A – no breach by lessee of obligation to pay lessor's legal costs for default justifying lessor's termination of lease – lessee otherwise entitled to relief against forfeiture