Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd [2015] NSWSC 1628

Supreme Court New South Wales

Medium Neutral Citation: Brinca Property Management Pty Ltd v Fibre Tek Global Pty Ltd [2015] NSWSC 1628 Hearing dates: 29 and 30 October 2015 Decision date: 06 November 2015 Before: Ball J Decision: See paragraphs 32 and 34 to 38 of this judgment. Catchwords: LANDLORD AND TENANT – rent – breach of covenant to pay – accepted that landlord was entitled to terminate the lease for breach of essential term to pay rent – whether tenant owed money as a result of EFTPOS transactions conducted through landlord's account – whether landlord in breach of plaintiff's right to quiet enjoyment – entitlement to costs order pursuant to lease Cases Cited: Kyabram Property Investments Pty Limited v Murray [2005] NSWCA 87 Category: Principal judgment Parties: Brinca Property Management Pty Ltd ACN 158 929 465 (Plaintiff) Fibre Tek Global Pty Ltd ACN 603 303 144 (First Defendant) Marc Victor Edwards (Second Defendant) Representation: Counsel:

Ms M Painter SC with Ms J Gatland (Plaintiff) CJ Dibb (Defendants)

Solicitors: Moisson Lawyers (Plaintiff) Carter Ferguson (Defendants) File Number(s): 2015/276315 Publication restriction: Nil

Judgment

Introduction 1. By an amended summons filed on 21 September 2015, the plaintiff, Brinca, sought a declaration that it was entitled to terminate a lease to the first defendant, Fibre Tek, of a strata titled motel in Goulburn known as the "Goulburn Heritage Motel" (the Motel) and an order that a writ of possession issue forthwith. It also sought damages. 2. At the conclusion of the hearing on 30 October 2015, and following the abandonment of a claim for relief against forfeiture by Fibre Tek, I indicated that I would make a declaration and order substantially in the terms sought by Brinca and would publish my reasons later. I also said that I would reserve the question whether any further orders should be made. This judgment sets out my reasons for making the orders that I did and deals with the remaining questions in the case.