Smart Dollars Tamworth Pty Ltd v Corpique No. 18 Pty Ltd

The Plaintiff is the lessee of a motel in Tamworth known as the Almond Inn under a lease originally made between the Defendant and the third party that has assigned its interests to the Plaintiff.

On 21 March 2021, the lessor served a breach notice under s 129 of the Conveyancing Act 2019 (NSW) alleging multiple breaches of the lease. The lessor took possession of the premises on 29 June 2021.

The plaintiff commenced these proceedings on 16 July 2021 in effect seeking relief against forfeiture.

On 23 July 2021, orders were made by consent allowing the lessee to re-enter possession on the basis of a number of undertakings given to the Court, including:

The lessor alleges that there have been numerous breaches of those undertakings, including the timely appointment of the expert, the timely payment of the amount certified by the expert for past works, and the timely payment of the expert's costs.

More significantly perhaps is the fact that on 12 May 2023, almost two years after the proceedings had commenced, and after the lessee had been let back into possession, the Court, with the consent of both parties, made this order:

The Court also noted these matters:

Nonetheless, the lessee has not engaged the nominated builder to perform the works. Such explanation as has been given to the Court for this is contained in an affidavit made by Ms Bingqin Liu, who says that she is the wife of the sole director of the lessee, and although living in Sydney, says that she overlooks the day-to-day operation of the motel business in Tamworth.

Her explanation for not engaging with the process to which the lessee consented on 12 May 2023 is contained in pars 7 to 10 of her affidavit, which provides:

I raised these matters with Mr Wood of Senior Counsel who appears for the lessee. Mr Wood took some instructions and has informed me that the figure in paragraph 8 of Ms Liu's affidavit is an error, and that she intended in fact to refer to the figure of some $2.3 million which is specified as being the contract price in a contract for preliminary works, evidently proffered to the lessee as to the basis upon which the work should be complete.

Whether or not that explanation is correct, the fact remains that the lessee, after considerable delay, on 12 May 2023, agreed to a detailed process to get the necessary works at the motel effected, and has not done any of the steps to which it consented at that time.

Against that background, on 28 July 2023, the lessor, seeks by way of Notice of Motion, interim relief to the effect of paragraphs 1 and 2 of its cross-summons, such relief being in effect to enable it to resume possession of the premises.

In my opinion, in the circumstances I have described, the lessor is entitled to that relief, and I make orders in accordance with pars 1 and 2 of the lessor's Statement of Cross-Claim filed on 9 May 2022.

I order that the Plaintiff pay the Defendant's costs of the Defendant's motion of 28 July 2023.