29 IBC says - somewhat faintly - that it was unable to pay the rent due to the disruption occasioned by the initial purported termination. As I have found that that purported termination was authorised and valid, that would be beside the point, even if it were correct. Even if the April termination were not valid, its consequences for IBC's financial position, if established, might have been relevant on an application for relief against forfeiture, but it would not operate to excuse IBC from the obligation to pay rent in accordance with the lease.
30 Accordingly, even if Alphacrucis was not entitled to terminate on 28 April, it was entitled so to do on 13 August, at which time IBC was in default for more than 28 days in respect of the rent due on 14 July.
The Arrears
31 As to the quantum of arrears, Mr Vo admits that IBC was liable to pay half of the cost of repair and new carpet, and indeed says that it has been paid - although on examination of the evidence, I do not accept that it has been paid.
32 As to the call out fees for the fire alarm, IBC says that the occasions for the callouts were not attributable to its fault or responsibility; but clause 31 does not make liability to pay those fees dependent upon fault or responsibility on the part of the lessee. Accordingly, I find that the amounts claimed for carpet repair and callout fees are properly payable.
33 So far as the underpayments are concerned, it is common ground that, in January 2009, the parties agreed that, at least until June 2009, the lessor would not insist on payment in full but would accept a lesser sum. There is disagreement as to whether that lesser sum was, as IBC contends, $15,766 or, as Alphacrucis contends, $16,866.The difference is $1,100, which is the amount of GST payable on the rent. The parties also disagree as to whether the obligation to pay the difference was merely suspended for six months, so that the shortfall became payable in June 2009, or whether it was suspended indefinitely "subject to review."
34 There are indications favouring and telling against each of the competing versions of the January 2009 agreement, given by Mr Cortese on behalf of Alphacrucis, and by Mr Vo on behalf of IBC. (Mr Robertson of Alphacrucis, although present at the relevant conversation, does not advance the argument, as his evidence is equivocal on the essential issues).
35 In favour of Mr Cortese's version - that the shortfall would be deferred but payable after six months and that Alphacrucis would continue to invoice - is that Mr Vo had sought a reduction of the kitchen fees to four days a week, and Mr Cortese's calculation reflects that request; Mr Cortese's assertion that Mr Vo referred to funds becoming available in July; and more importantly, the fact that Alphacrucis did continue to invoice the full amount of the rent in February, March and April. In favour of Mr Vo's version, which included the suggestion that Mr Cortese wrote the sum to be paid on a piece of paper and gave it to one of Mr Vo's staff, is the circumstance that, in fact, IBC paid $15,766 in each of February, March and April and did so without apparent objection - indeed to the point that it referred explicitly to the amount of the payment in a letter tendering a replacement cheque when one had bounced, and still did not elicit any written complaint that the amount was incorrect. I do not overlook that Mr Cortese says that he raised or tried to raise the issue in telephone calls on a number of occasions, but his evidence does not really establish that he ever actually said any such thing to Mr Vo.
36 In my view the probabilities favour, if only slightly, the view that the amount of agreed in January 2009 was $15,766. In particular, the subsequent conduct of the parties, up until the April termination, points in that direction.
37 On the other hand, similarly only slightly, the probabilities favour the view that the obligation to pay the difference was suspended for six months, and not forgiven forever. I come to that view mainly because, consistent with Mr Cortese's version, Alphacrucis continued to invoice the full amount.
38 It follows that, by August 2009, Alphacrucis was entitled to recover the amounts which had been underpaid. In addition, by August 2009, Alphacrucis was entitled to the payment of rent due on 14 July 2009. The total arrears to which Alphacrucis is entitled is therefore $55,164.
Relief Against Forfeiture