Baby Zone (Aust) Pty Ltd (Administrators Appointed) v Keira Street Ventures Pty Ltd [2016] NSWSC 528

Supreme Court New South Wales

Medium Neutral Citation: Baby Zone (Aust) Pty Ltd (Administrators Appointed) v Keira Street Ventures Pty Ltd [2016] NSWSC 528 Hearing dates: 7 – 8 April 2016 Decision date: 29 April 2016 Jurisdiction: Equity - Corporations List Before: Robb J Decision: (1) Order the parties to bring in short minutes of order as per par 103. Catchwords: CONTRACTS - construction of lease – dispute as to when rent became due and payable – HELD upon proper construction of the lease agreement, payment should be made in advance on the 28th day of each month – dispute as to whether defendant, as transferee of the reversion, was entitled to exercise right of forfeiture of the lease upon event of default by non-payment of rent – defendant had acquired reversion on earlier completion of contract of sale – transferor had attorned to plaintiff – HELD defendant had acquired rights and entitled to income under s 117(1) of the Conveyancing Act 1919 (NSW), and was entitled to terminate lease

WAIVER – whether the defendant waived the plaintiff's breach by way of acceptance of late payment of rent – HELD defendant did not waive the breach – whether the plaintiff waived its entitlement to seek relief against forfeiture by agreeing to continue to occupy the premises on a monthly tenancy – HELD plaintiff reserved its legal right to apply for relief against forfeiture and did not waive that right

EQUITY – equitable remedies – relief against forfeiture – consideration of principles and factual circumstances, including no prior warning from defendant and immediate repayment by plaintiff upon notice – defendant had not suffered loss and would not do so if lease assigned to new lessee - HELD assignment to new lessee will not disadvantage the defendant – whether defendant entitled to withhold consent for the assignment of lease – defendant did not dispute the ability of assignee to abide by terms of the lease – HELD defendant obliged to consent to assignment of lease – HELD in all circumstances relief against forfeiture should be granted Legislation Cited: Conveyancing Act 1919 (NSW) Corporations Act 2001 (Cth) Real Property Act 1900 (NSW) Cases Cited: Direct Food Supplies (Vic) Pty Ltd v DLV Pty Ltd [1975] VR 358 Greenwood Village Pty Ltd v Tom the Cheap (WA) Pty Ltd [1976] WAR 49 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd [2008] HCA 10; (2008) 234 CLR 237 Hayes v Gunbola (1986) 4 BPR 9247 Kofoo Sussex Pty Ltd v Commerce Building Pty Ltd [2014] NSWSC 1079; (2014) 17 BPR 33,147 Measures v McFadyen [1910] HCA 74; (1910) 11 CLR 723 Provident Capital Ltd v Pinty [2008] NSWCA 131; (2008) 13 BPR 25,199 In the matter of Hi-Fi Sydney Pty Ltd (administrator appointed) [2015] NSWSC 1312 Waterhouse v Waugh [2003] NSWCA 139 Wynsin Hotels (Oxford St) Pty Ltd v Toomey [2004] NSWSC 236 Category: Principal judgment Parties: Baby Zone (Aust) Pty Ltd (Administrators Appointed) ACN 094 329 049 (plaintiff) Keira Street Ventures Pty Ltd ACN 604 824 599 (defendant) Representation: Counsel: M Condon SC (plaintiff) D Allen (defendant)