Andrew O’Brien KC appeared for the appellants, instructed by McKays Solicitors.
The appellants were the lessees of two marine berths, which it long subleased to the respondent. The appellants gave notices to remedy breaches after the respondents did not pay a sum of deferred rent and consequently gave notice of termination of the subleases.. The respondent eventually paid the overdue rent, however, the applicants nevertheless lodged notices of surrender of the sub-leases and sought overdue outgoings in addition to further costs. In response, therespondent made an application for relief against forfeiture, which was granted by the primary judge because all outstanding rent had been paid and there were no exceptional circumstances.
The appeal in this case was on two bases. First, the primary judge was misguided regarding the legal test for relief against forfeiture to be applied. Second, the primary judge erred in law by failing to give adequate reasons for his decision to grant the relief, because his Honour found against the weight of the evidence in circumstances where there was insufficient evidence to support the conclusion that the respondent’s application for relief against forfeiture ought to be granted.
The Court held that the primary judge did not err in their application of the legal test and the lessor should ordinarily demonstrate that the grant of relief would be inequitable and that a judge giving reasons for judgment involving an exercise of discretion is not obliged to detail every factor the judge has found to be relevant. It was ordered that the appeal be dismissed with costs.
The judgment can be read by clicking here
