International Business College Pty Ltd v Alphacrucis College Ltd

CITATION : International Business College Pty Ltd v Alphacrucis College Ltd (previously known as 'Southern Cross College of the Assemblies of God in Australia Ltd') & anor [2009] NSWSC 1088

HEARING DATE(S) : 14-15 September 2009 JURISDICTION : Equity Division Expedition List

DECISION : Summons dismissed with costs. Cross-defendant to pay cross-claimant $55,164.

CATCHWORDS : LANDLORD AND TENANT - termination of the tenancy - generally - where plaintiff seeks declaration that defendant not entitled to terminate and for relief against forfeiture - Whether defendant entitled to terminate lease - where plaintiff held to be in arrears - where defendant entitled to terminate lease for two separate defaults on lease - quantum of arrears - Whether plaintiff entitled to relief against forfeiture - discretionary considerations - where rent not brought up to date - where no evidence that plaintiff would be able to service lease in the future - where bond would be inadequate to cover present or future defaults -relief against forfeiture refused

LEGISLATION CITED : (NSW) Conveyancing Act 1919 s129

Batiste v Lenin [2002] NSWCA 316, (2002) 11 BPR 20,403 Chandlers-Chandless v Nicholson [1942] 2 KB 321 Greek Macedonian Club Limited v Pan Macedonia Greek Brotherhood NSW Pty Limited [2007] NSWSC 92 CASES CITED : Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co of NSW Limited (1970) 2 BPR 9562 Shiloh Spinners limited v Harding [1973] AC 691 Starside Properties Limited v Mustapha [1974] 2 All ER 567 Steiper v Devoit Pty Limited (1977) 2 BPR 9602

International Business College Pty Ltd (plaintiff/cross-defendant) PARTIES : Alphacrucis College Ltd (previously known as Southern Cross College of the Assemblies of God in Australia Ltd) (first defendant/cross-claimant) Andrew Robertson (second defendant)

COUNSEL : Mr R Harper SC (plaintiff/cross-defendant) Mr R Scruby (defendants/cross-claimant)

SOLICITORS : Australia Legal (plaintiff/cross-defendant) Makinson & d'Apice Lawyers (defendants/cross-claimant)

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EXPEDITION LIST

2595/09 International Business College Pty Ltd v Alphacrucis College Limited Previously known as "Southern Cross College of the Assemblies of God in Australia Limited" & Anor

JUDGMENT (ex tempore) 1 HIS HONOUR: By a lease made on or about 4 July 2008, the first defendant Alphacrucis College Limited - formerly known as Southern Cross College of the Assemblies of God in Australia Limited - demised to the plaintiff International Business College Pty Limited ("IBC"), for a term of two years, expiring on 13 July 2010, residential dormitory premises known as Lancaster House at 40 Hector Street, Chester Hill, which forms part of a campus on which Alphacrucis operates an educational institution. The instrument of lease also granted a licence to IBC to use an adjacent industrial kitchen complex for a licence fee additional to the specified rent. On 28 April 2009, Alphacrucis purported to terminate the lease, inter alia for default in payment of rent. IBC thereupon obtained an interlocutory injunction, restraining the implementation of the purported termination until the final hearing. However, on 13 August 2009, Alphacrucis re-entered the premises, relying not on the grounds which had founded the purported termination of 28 April, but on a further default in payment of rent in respect of July 2009. 2 In these proceedings IBC claims a declaration that Alpacrucis was not entitled to terminate the lease, an injunction from restraining it from doing so, and alternatively relief against forfeiture. Alphacrucis cross-claims for a declaration that it was entitled to terminate the lease in April, or alternatively in August, judgment for possession of the premises; and judgment for the arrears said to be due under the lease. The main issues are, first, whether Alphacrucis was entitled to terminate as at 28 April 2009; secondly, whether Alphacrucis was entitled to terminate as at 13 August 2009; thirdly, the quantum of any arrears; and fourthly whether IBC is entitled to relief against forfeiture. The Lease

3 The lease contained the following relevant provisions. As to rent, clause 3.1 provided as follows: 3. RENT AND REVIEW OF RENT 3.1 During the term of this lease and any holding over, the Lessee must pay the rent as specified in the Reference Schedule (as varied pursuant to Schedule 1) free set-off, deduction or counter claim: (a) to the Lessor by direct debit to the bank account nominated by the Lessee to the credit of the credit of the bank account nominated by the Lessor from time to time unless otherwise directed by the Lessor; and (b) by monthly instalments in advance. The first payment being due on the commencement date of the lease and then subsequent payments to be made monthly thereafter.

4 The reference schedule mentioned in that clause provided that, for year one of the lease, the rent was $117,480 plus GST per annum payable in monthly instalments in advance for the first six months of the lease, by six monthly instalments each of $8,580 plus GST, and for the second six months, six monthly instalments each of $11,000 plus GST.

5 As to the licence of the kitchen complex, clause 25 provided as follows: 25. LICENCE OF KITCHEN COMPLEX

(a) The Lessor grants the Lessee and the Lessee agrees to take a licence to occupy and use the Kitchen Complex during the Kitchen Complex Usage Times and upon payment of the Kitchen Complex Usage Fees.

"Kitchen Complex Usage Times" means subject to the rights of exclusive usage on the part if the Lessor referred to in clause 25(b)(i): (i) for the first six months of this Lease - two days a week; (ii) for the second six months of the term of this lease - five days per week; (iii) thereafter, seven days a week;

Provided that during the first 12 months of the term of this Lease the Lessee shall have the option to extend the usage times by additional days by notice in writing to the Lessor and relevant Kitchen Complex Usage fees will be adjusted accordingly. 6 Clause 15, "Default by the Lessee" was relevantly as follows: 15. Default by the Lessee

15.1 Each of the following constitutes a default by the Lessee under this lease:

(a) if the rent hereby reserved or any part thereof or any contribution to the Lessor's Outgoings shall be unpaid and in arrears for 7 days after the same shall have become due whether any formal or other demand shall have been made for such moneys; or (b) if any other moneys payable by the Lessee to the Lessor shall not have been paid within 7 days of the due date for such monies; or … (d) if the Lessee shall fail to observe perform of fulfil any of the other terms covenants conditions and restrictions contained on the part of the Lessee whether positive or negative within a reasonable time after service of written notice specifying the failure; or … then the Lessee shall be deemed to be in default. 15.2 If the Lessee shall have made such default, the Lessor may (after first giving prior notice where required by law) at its option: (a) without any prior demand or notice, re-enter into and take possession if the Premises or any part in the name of the whole (by force if necessary) and eject the Lessee and all other persons therefrom and repossess and enjoy the same as of its first and former estate upon which event this Lease shall be absolutely terminated; or (b) by notice in writing to the Lessee terminate this Lease (and from the date of giving such notice this Lease shall be absolutely terminated); or (c) by notice in writing to the Lessee elect to convert the said term into a tenancy from week to week in which event this Lease shall be determined as from the giving of such notice and thereafter the Lessee shall hold the Premises from the Lessor as Lessee from week to week at a weekly rental equal to one (1) week's proportion of the rent payable at such time commencing from the date of service if such notice (such rental being payable weekly in advance) but otherwise on the terms and conditions of this Lease so far as they can be applied to a weekly tenancy. 15.3 The Lessee agrees that the following are essential terms of this Lease: (a) the covenant to pay rent throughout the term of the Lease on the due date for payment of each monthly instalment of rent; and (b) the covenant to pay the Lessee's proportion of the Lessor's Outgoings; and (c) the covenant dealing with assignment, transfer and subletting; and (d) the covenant relating to repair and maintenance. 7 Clause 31, "Fire Alarm" was as follows: a 31. FIRE ALARM The Lessee agrees to pay the Lessor the sum of $300.00 plus GST each time the fire alarm in the premises is activated.

The April Termination 8 In its Notice of Termination dated 28 April 2009, Alphacrucis purported to terminate for "breach of an essential term of the lease" said to be "arrears in payment of the rent and other payments in the sum of $29,199.42", which were then specified as follows: Short Paid Rent including GST for the month commencing 14 January 2009 $2,292.03 Short Paid Rent including GST for the month commencing 14 February 2009 $2,292.03 Rent including GST for the month commencing 14 March 2009 $2,292.03

Rent including GST for the month commencing 14 April 2009 $18,058.33 Carpet and repair costs including GST (Invoices 13681 & 14261) $3,660.00 Alarm activation costs including GST (Invoice 17004) $605.00 Total amount in arrears $29,199.42

This constitutes a breach of an essential term in accordance with 15.1(a), 15.1(b) and 15.3(a) of the lease.

9 The effect of clause 15.2 was therefore, to permit the lessor to terminate the lease and re-enter the premises in the event of default without prior notice, except to the extent that notice was required by law. Notice is ordinarily required to be given by the (NSW) Conveyancing Act 1919, s 129. However, that requirement does not apply to a default in respect of payment of rent. Accordingly, Alphacrucis was not required to give prior notice where the default relied upon was payment of rent, but otherwise was required to give notice under s 129. 10 There is no suggestion that in respect of either the April termination or the August termination any notice under s 129 was given. Accordingly, Alphacrucis was entitled to terminate only if there was a default in respect of the payment of rent. 11 The first three items In the Notice of Termination each of $2,292.03 are said to be "short paid rent" or "rent" but in fact they were not rent - at best they comprised GST on rent, and the licence fee in respect of the kitchen complex. Accordingly, they could not, on any view of the arrangements said to have been made between the parties in January 2009, justify termination, in the absence of a s 129 notice.

12 The last two items - carpet repair costs and alarm activation costs - are not rent. Even if the carpet repair costs were moneys payable by the lessee to the lessor so as to fall within clause 15.1(b) - a proposition which is doubtful, since they are payable not under the lease but under an agreement made separately between the parties - in the absence of any s 129 notice neither of those items could found termination. 13 That leaves the fourth item, said to be rent (including GST) for the month commencing 14 April 2009. IBC contends that it was not in arrears in respect of the rent due on the rent for the month commencing 14 April 2009, as it had overpaid rent previously. 14 Alphacrucis' business records evidence the following payments of rent (additional to the initial security bond) only:

· A payment on 22 July 2008 in respect of the month commencing 14 July 2008; · A payment on 15 August in respect of the month commencing 14 August; · A payment on 16 September in respect of the month commencing 14 September; · A payment on 5 November in respect of the month commencing 14 October; · A payment on 27 November in respect of the month commencing 14 November; · A payment on 22 January referable to the month commencing 14 December; · A payment on 20 February 2009 in respect of referable to the month commencing 14 January 2009; · A payment on 17 March in respect of the month commencing 14 February; and · A payment on 21 April referable to the month commencing 14 March. 15 As at 28 April 2009, according to those records, no payment had been made referable to the month commencing 14 April.

16 Against that, IBC contends, first, that there had been an agreement between the parties to waive the first month's rent. However, taken at its highest Mr Vo's evidence show only a request by him that the rent be waived, and does not show any agreement to that proposal. Moreover, IBC in fact paid the first month's rent on 22 July 2009, only one day after it was due. I do not accept that there was any such agreement or waiver as alleged. 17 IBC next contends that it made additional payments of rent over and above those to which I have so far referred: on 6 November 2008, on 10 November 2008, on 27 November 2008, on 1 December 2008 and on 19 April 2009. However, in my view examination of the records makes abundantly clear that the recorded payment said to have been made on 6 November is a duplication of the payment recorded on 5 November, and not an additional payment. Similarly, the payment recorded to have been made on 27 November is a duplication of that made on 26 November and not an additional payment; and that said to have been made on 19 April is a duplication of that eventually made on 21 April, and not an additional payment. There were not multiple payments but multiple records, in different books and on different dates, of the same payment. This is apparent primarily from the correlation between the receipt numbers attributed in the related entries to the payments in question. Moreover, it strains credulity that - in circumstances where in January 2009 IBC was compelled to approach Alphacrucis for a concession in respect of rent, on the basis that it was having considerable difficulty in paying its rent - it would up to that point have been voluntarily, when under no obligation to do so, paying double instalments of rent.

18 So far as concerns the alleged payment on 10 November 2008 of $8,161.32, there is no apparent reason why that amount would or could have been paid - let alone in cash, as Mr Vo suggested - and the appearance of such a figure in one record of Alphacrucis is explained by the circumstance that it was the running balance of the account at that time, which was then included in an outstanding invoice. 19 So far as concerns the payment said to be made on 1 December 2008, it is true that there is what appears nominally to be a receipt issued by Alphacrucis dated that day. However, when correlated with the other Alphacrucis documentation - including its bank account records and statements of the running account - it becomes reasonably clear, or at the very least more probable than not, that that was in fact a reference to an invoice for the December rent, and not a record of a payment of it. 20 The suggestion that these additional payments were made - and in cash - only emerged at the hearing, or at best in a schedule of payments prepared by Mr Vo and annexed to his affidavit of 6 May 2009 for the purposes of the hearing. The view that some of these entries reflected payments seems to have been derived from the circumstance that IBC was issued with receipts entitled "Cash Receipts", which Mr Vo has interpreted as evidencing a payment in cash rather than a payment by cheque. I do not think that the title "cash receipt" necessarily bespeaks that what was received, was cash and not a cheque. It is telling that the Alphacrucis records do not appear to record any deposit which could be referable to such additional payments. At best, the suggestion that such additional payments were made is a wishful reconstruction of the records obtained in the course of the proceedings. 21 Accordingly, I do not accept that there was any such overpayment as IBC alleges as at April 2009. It follows that as at 28 April, IBC was 14 days in arrears of the payment of rent, and was therefore in default for the purposes of the lease. Alphacrucis was therefore entitled to terminate, as it purported so to do, on 28 April 2008. The August Termination 22 As I have recorded, IBC approached the Court and obtained initially an ex parte interim injunction, and then (by consent) an interlocutory injunction restraining implementation of the purported Notice of Termination until the hearing. 23 The proceedings for the interlocutory injunction came before Barrett J on 20 May 2009, when his Honour noted:

· Undertakings by IBC to Alphacrucis to pay $18,058.32 by 22 May 2009, another $18,058.32 by 14 June 2009; · IBC's acknowledgement, "that as from 1 July 2009 it is obliged to pay rent and kitchen usage fees in accordance with the lease"; and · "The plaintiff undertakes to provide by 30 June 2009 to the first defendant a bank guarantee in the sum of $10,000 such sum to be security for payments alleged by the first defendant to be due under the lease and disputed by the plaintiff, and the parties agree the right to call upon such bank guarantee shall abide the outcome of the proceedings." 24 IBC punctually paid the sum of $18,058.33 by 22 May. That was referable to the rent due on 14 May, in respect of the month of May (assuming that the April rent remained unpaid). 25 IBC also paid the second amount of $18,053.33 - referable on the same basis to the month commencing 14 June - albeit not until 19 June 2009.

26 However, IBC did not provide the bank guarantee in the sum of $10,000, nor any alternative form of security, nor did it pay the rent of approximately $25,000 and kitchen-usage fees in respect of the month commencing 14 July 2009. 27 On 8 July Alphacrucis' solicitors wrote to the solicitors for IBC drawing attention to the undertaking to provide a bank guarantee and objecting that it had not been provided. On 9 July 2009, Alphacrucis issued an invoice for $25,964.58 (being the rent, kitchen licence fees and GST for the period commencing 14 July). On 16 July, there having been no apparent response to the letter of 8 July, Alphacrucis' solicitors proposed to relist the matter on 22 July, to obtain a dissolution of the injunction. Also on 16 July, IBC's solicitors responded, seeking time to obtain instructions. On 5 August, Alphacrucis' solicitors wrote to IBC's solicitors, again observing that the bank guarantee had not been provided and that the July rent and kitchen fees had not been paid and foreshadowing relisting the matter to apply for discharge of the injunction the following week. However, on 2 August, apparently in the absence of any further response, Alphacrucis' solicitors wrote again, repeating that no payment had been made of the rent and kitchen fees due on 14 July; asserting that this was an event of default and breach of an essential term; demanding payment by Wednesday 12 August; and indicating that their client would re-enter and take possession thereafter if payment was not made. 28 On 13 August Alphacrucis' solicitors wrote yet again, noting that no payment had been received and "that our client is currently taking possession of the premises." Alphacrucis re-entered and took possession on 13 August 2009.

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

39 I turn then to the application for relief against forfeiture. Relief against forfeiture is ordinarily given to a lessee whose sole breach is non-payment of rent where the rent has since been paid, although the grant of relief always remains discretionary [Pioneer Quarries (Sydney) Pty Limited v Permanent Trustee Co of NSW Limited (1970) 2 BPR 9562]. The burden of establishing that a forfeiture for non-payment of rent should not be relieved against, where all the arrears have been paid and where no interested third party has intervened, is a very heavy one, which normally requires demonstration that, by reason of the conduct of the lessee or otherwise, the grant of relief would be inequitable [Pioneer Quarries; Steiper v Devoit Pty Limited (1977) 2 BPR 9602, Greek Macedonian Club Limited v Pan Macedonia Greek Brotherhood NSW Pty Limited [2007] NSWSC 92]. But relief is granted in respect of wilful breaches only in exceptional cases, and relief is not granted where future compliance with the lessee's obligations appears unlikely [Shiloh Spinners Limited v Harding [1973] AC 691, 725-6 (Lord Wilberforce)]. In Shiloh Spinners, Lord Wilberforce concluded that the refusal of relief was justified in a case of clear and wilful breaches of more than one covenant which, if each individually was not serious, were certainly substantial and demonstrated a continuous disregard of the lessee's rights over a period of time; where there was a total lack of evidence regarding the lessee's ability to speedily and fully make good the consequences of its default; and there was also a failure to show any windfall or other disproportionate outcome so as to show a case for hardship. In Batiste v Lenin [2002] NSWCA 316, (2002) 11 BPR 20,403 the Court of Appeal upheld a decision of Bryson J refusing relief against forfeiture, where there had been a failure to pay rent for long periods, in circumstances where the tenant failed to demonstrate any ability to pay rent up-to-date, and in the light of other breaches of the lease which extended far beyond failure to pay money. 40 Although it was once thought that, before relief against forfeiture would be granted, the plaintiff had to admit the relevant breaches and the forfeiture, I have previously taken the view, which I believe is soundly based in principle, that a tenant who bona fide disputes that it has been in breach of an obligation under the lease should not on that ground be disentitled from relief against forfeiture even though the breach is ultimately established, if relief is otherwise appropriate [Greek Macedonian Club, [73]]. It is also worth noting that relief against forfeiture can be granted conditionally, on the basis of an undertaking and conditioned upon the arrears being brought up-to-date; when granted on that basis, the time for compliance can be further extended, if the circumstances so warrant [Chandlers-Chandless v Nicholson [1942] 2 KB 321; Starside Properties Limited v Mustapha [1974] 2 All ER 567; Greek Macedonian Club, [82]]. 41 If I were concerned only with the April termination I would have had no difficulty in concluding that relief against forfeiture should be granted. It would have been of considerable significance that the termination took place without prior notice, in circumstances where there was confusion as to what payments had been made, and there had been no prior demand, nor any suggestion that rent was in arrears. 42 But subsequent events cast this in a different light. First, this is not a case in which the rent has been brought up-to-date. It remains unpaid. As I have foreshadowed, that is not of itself fatal, but it is a significant matter. An undertaking to pay it in 21 days was given, but only in the dying moments of the case. Next, there is absolutely no evidence of ability on the part of IBC to service the lease in the future. This was a telling matter in both Shiloh Spinners and in Batiste v Lenin. Then there is the circumstance that there was a second default, in respect of the July rent, which remains inadequately explained. Moreover, there was default in the undertaking, given in connection with the consent to continued interlocutory relief, to provide a bank guarantee. It needs to be borne in mind, when one is considering the prospects of future compliance, that these defaults occurred in circumstances where the obligations had been acknowledged and undertaken in the context of litigation, with the concomitant importance of honouring them necessarily obvious to IBC. 43 Additionally, it is often significant that the lessor's position is protected by an adequate security bond or by some other remedy which would be available in the event of a further default [see Greek Macedonian Club, [81]]. In this case, however, the existing bond is inadequate to meet the current arrears, let alone any future default. 44 Finally, I think I have to take into account the lack of substance in the case raised by IBC in disputing that there was any breach in the first place. As I have said, the case that it had made overpayments in the order that it asserted and the suggestion that the "cash receipts" refer to payments other than those made by cheque, could at best have been a very wishful reconstruction. 45 Having regard to all of those considerations, I am afraid I have concluded that this is a case which falls within Shiloh Spinners and Batiste v Lenin, and in which relief against forfeiture should not be granted. Conclusion 46 I order that the summons be dismissed. I give judgment on the cross-claim that the cross-defendant pay the cross-claimant the sum of $55,164. I declare that the cross-claimant is entitled to possession of the premises known as Lancaster House, situate and known as 40 Hector Street, Chester Hill, in the State of New South Wales. As the defendant is already in possession, it seems unnecessary to take that course or to make any further order about possession at this stage. 47 I reserve liberty to apply for a Writ of Possession. I order that the plaintiff pays the defendant's costs.

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