Date of this Version

12-1-1994

Document Type

Journal Article

Publication Details

Published Version.

Weir, M. J. (1994). A tenant's right to set-off. Australian law journal, 68(12), 857-873.

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© Copyright Lawbook Co., 1994

Published by the © Lawbook Co., part of Thomson Legal & Regulatory Limited, http://thomson.com.au. Reproduced with permission.

Abstract

In this article the author will discuss the attributes of set-off at common law and in equity. The decision of British Anzani (Felixstowe) Ltd ν International Marine Management (UK Ltd), has provided an impetus to the doctrine of equitable set-off in its application to leases. This case confirms α considerable latitude to a tenant to set off liquidated and unliquidated damages against rental. The author will then discuss the rules of set-off against a landlord constituted by a mortgagee in possession. This discussion will reveal that the application of set-off in that circumstance is dependent upon the local statutory provisions which affect the nature of the mortgagee's interest and the ability of a mortgagee to recover rent. Finally the article will discuss the contractual provisions which can be applied between the parties so as to disrupt or enhance the tenant's ability to seek set-off against rent against a mortgagee in possession.

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