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 29
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”
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- Law, landlord, Leasehold estate, Susan Hedge LWB, Susan Hedge