1. In early 2020 Kyong entered into a five year lease over residential property in Sutherland. The landlord, Lee is an old family friend. The unit is located above a hotel that is especially busy on Friday and Saturday nights as a live music venue. The lease is registered. The lease contains the following clauses: 1.The rent will be payable on the first Friday of every month. 2.The rent is $1500.00 per month. 3.Only one person (the tenant) may reside at the property. 4.No pets are allowed. 5.The property may not be sub-let without the approval of the landlord. In late 2020 Kyong lost his job. He did find some part-time work, but his income level was significantly reduced. Because of this, he found it difficult to pay his rent. In January 2021 he falls behind in his rent, but catches up again in March 2021. In June 2021 he falls behind again, but catches up in September 2021. When he again fails to make the rental payments on time in late December 2021, Lee's patience runs out. Lee is also unhappy that Kyong has installed a small bird aviary on the balcony and lets his brother stay over on the weekends. Lee now wishes to terminate the lease. 1.Advise the landlord whether he can terminate the lease and the best way to do so. What damages, if any, will the landlord be entitled to? 2.The landlord is also concerned that as the unit is above a busy hotel, it will be difficult to re-let. It had been vacant for almost 18 months before Kyong took up the lease. The landlord therefore wishes to know if the property fails to lease for a similar length of time, whether he will be entitled to any higher level of damages.

Statute

Conveyancing Act 1919 (NSW), ss 23B, 23C, 23D, s 54A, 84, 85, 117, 118, 129, 132, 133B.

Real Property Act 1900 (NSW), ss 42(1)(d), 51, 52, 53.

Cases

What is a Lease?

*Radaich v Smith (1959) 101 CLR 209.

*Swan v Uecker [2016] VSC 313.

Landlord's Covenants

Martin's Camera Corner v Hotel Mayfair [1976] 2 NSWLR 15.

Southwark London Council v Mills (1999) 3 WLR 939.

*Aussie Traveller v P/L v Marklea P/L [1997] QCA 2.

Spencers Case (1583) 77 ER 72.

P & A Swift Investments v Combined English Stores Group plc [1989] AC 632..

Termination

*Gumland Property Holdings Ltd v Duffy Brothers Fruit Market (Campbell town) Pty Ltd (2008) 234 CLR 237.

*Progressive Mailing House v Tabali (1985) 157 CLR 17.

*Shevill v Builders' Licencing Board (1982) 149 CLR 620.