Assignee covenanted to fence boundaries keep

assignee covenanted to fence boundaries, keep buildings in repair, not
diminish support to buildings in S’s land
o lease included re-entry right on default
o must look at the conduct of the lessee over a period of time, the nature and
gravity of the breach, and its relation to the value of the contract, whether the
lessee is in a position to remedy and whether the conduct was wilful
 applied in Qld in Pioneer Gravels – a court has discretion to intervene to relieve against
forfeiture for breach of covenants, including breach of covenant to pay rent
 s 124 PLA – where the lessor is claiming forfeiture, the lessee may claim for relief – the
court will look at proceedings and conduct of the parties, and all the other circumstances, as
it thinks fit, and may grant relief on any terms
o generally a lessee will need to demonstrate fraud, accident, mistake, ignorance, or
unconscionable conduct of the lessor: Melacare International
124 Restriction on and relief against forfeiture
(2) Where a lessor is proceeding by action or otherwise to enforce
such a right of re-entry or forfeiture, or has re-entered without
action the lessee may, in the lessor’s action (if any) or in
proceedings instituted by the lessee, apply to the court for relief,
and the court, having regard to the proceedings and conduct of the
parties under subsection (1), and to all the other circumstances,
may grant or refuse relief, as it thinks fit, and in case of relief may
grant the same on such terms (if any) as to costs, expenses,
damages, compensation, penalty or otherwise, including the
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Susan Hedge LWB 237
granting of an injunction to restrain any like breach in the future, as
the court in the circumstances of each case thinks fit.
 Relief against covenant to pay rent – a court will ordinarily grant relief against forfeiture for
arrears, provided the unpaid rent and costs are paid : Gill v Lewis. This will apply unless:
o Lessee is in receivership: Direct Food Supplies
o History of non-payment: Belgravia Insurance Co Ltd
o Consistent delays in rent payments: Jam Factory Pty Ltd v Sunny Paradise Pty Ltd
o Where leases purposes are used for illegal ( Hoffman v Fineberg) or immoral purposes
( Rugby School (Governors) v Tannahill )
o Where granting relief will injure third parties who have entered into possession of the
leased premises after forfeiture: Stanhope v Haworth
 Relief against other covenants – no certain rules
o Will depend on the severity of the breach
o Barrow v Isaacs – lessor terminated because lessee assigned lease without seeking
consent, contrary to a covenant. No relief rewarded – this was a serious ‘once and for
all’ breach, and the lessee had to leave
o Relief will generally be granted where:
 Lessee remedies the breach and pays the lessor’s costs: Earl of Bathurst v
Fine;
 Lessee is willing and able to fulfil all other obligations under the lease: Earl
of Bathurst v Fine;
 Lessor has not suffered loss: Pioneer Gravels (Qld) Pty Ltd; AND
 Breach is minor and easily rectified: Platt v Ong
 Generally lessee must come to the court with “clean hands”
