The recent case of 711 Hogben Pty Ltd v Anthony Tadros – Relief Against Forfeiture and Costs [2022] NSWSC 1653 considered a claim for relief against forfeiture of a lease in circumstances where the tenants had obtained a substantial verdict for damages against the landlord. The landlord had terminated the lease on the basis of the tenant’s failure to pay rent and the issue was whether relief should be refused on the basis that the tenants would be unable to pay future rent.
As a general rule, provided the lessor can be put in the same position as before the forfeiture, the Court will grant relief against forfeiture upon the payment of rent, costs, interest and other expenses. The tenants wished to be restored to their tenancy, and offered to pay the rent and discharge their obligations despite not having an Occupation Certificate or Service Approval.
In opposition, the landlord claimed that relief should be refused on the basis that it was more probable than not that the tenants would not obtain Service Approval and would not trade, and would therefore not be able to pay the rent, as well as the fact that the tenants delayed in obtaining an Occupation Certificate.
The Court held that relief against forfeiture should be granted. Moreover, the landlord attempted to argue that each party pay its own costs, rather than applying the ordinary rule that costs follow the event. However, the Court declined to depart from the general rule and thus the tenants were entitled to have the costs of their successful application paid for.