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assignee covenanted to fence boundaries, keep buildings in repair, notdiminish support to buildings in S’s landolease included re-entry right on defaultomust look at the conduct of the lessee over a period of time, the nature andgravity of the breach, and its relation to the value of the contract, whether thelessee is in a position to remedy and whether the conduct was wilfulapplied in Qld in Pioneer Gravels – a court has discretion to intervene to relieve againstforfeiture for breach of covenants, including breach of covenant to pay rents 124 PLA – where the lessor is claiming forfeiture, the lessee may claim for relief – thecourt will look at proceedings and conduct of the parties, and all the other circumstances, asit thinks fit, and may grant relief on any termsogenerally a lessee will need to demonstrate fraud, accident, mistake, ignorance, orunconscionable conduct of the lessor: Melacare International124 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 237granting 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 forarrears, provided the unpaid rent and costs are paid: Gill v Lewis. This will apply unless:oLessee is in receivership: Direct Food SuppliesoHistory of non-payment: Belgravia Insurance Co LtdoConsistent delays in rent payments: Jam Factory Pty Ltd v Sunny Paradise Pty LtdoWhere leases purposes are used for illegal (Hoffman v Fineberg) or immoral purposes(Rugby School (Governors) v Tannahill)oWhere granting relief will injure third parties who have entered into possession of theleased premises after forfeiture: Stanhope v HaworthRelief against other covenants – no certain rulesoWill depend on the severity of the breachoBarrow v Isaacs – lessor terminated because lessee assigned lease without seekingconsent, contrary to a covenant. No relief rewarded – this was a serious ‘once and forall’ breach, and the lessee had to leaveoRelief will generally be granted where:Lessee remedies the breach and pays the lessor’s costs: Earl of Bathurst vFine;Lessee is willing and able to fulfil all other obligations under the lease: Earlof Bathurst v Fine;Lessor has not suffered loss: Pioneer Gravels (Qld) Pty Ltd; ANDBreach is minor and easily rectified: Platt v OngGenerally lessee must come to the court with “clean hands”
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Law, landlord, Leasehold estate, Susan Hedge LWB, Susan Hedge