Jafari v Lituma Pty Ltd [2005] NSWADT 64

Jafari v Lituma Pty Ltd [2005] NSWADT 64

On the objective construction of the Deed, cl.1(e) used immediate language and formed part of completion of the sale of the business on 26 November 2004; Mrs Jafari made the completion payments, Lituma acted consistently with completion, and her possession and payment of rent were consistent with assignment. The requirements in cl.1(d), including provision of a bank guarantee, were conditions subsequent, not conditions precedent to assignment. Clause 4, read in light of the Deed's purpose, operated only if Mrs Jafari failed to make the completion payments in cl.1(b) and (c), and after assignment her failure to provide the bank guarantee was a breach of the lease as amended by the Deed....

Jurisdiction
Australia
Judgment Date
24 March 2005
Procedural Posture
Claim for Declaration of Rights, Obligations and Liabilities Under a Lease; Claim for Relief Against Forfeiture; Claim for the Doing of Work or Provision of Services / Preliminary Matter
Outcome
Declarations made; matter stood over for further directions.
Legal Topics
['construction of Deed of Release' 'assignment of Lease' 'consent to Assignment' 'surrender of Lease' 'relief Against Forfeiture' 're Entry for Breach of Lease' 'conveyancing Act Notice Requirements']
['retail Leases' 'property Law' 'contract Law'] ['construction of Deed of Release' 'assignment of Lease' 'consent to Assignment' 'surrender of Lease' 'relief Against Forfeiture' 're Entry for Breach of Lease' 'conveyancing Act Notice Requirements']

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Procedural Posture

Claim for Declaration of Rights, Obligations and Liabilities Under a Lease; Claim for Relief Against Forfeiture; Claim for the Doing of Work or Provision of Services / Preliminary Matter

Legal Issues

  1. 1 ['Whether, on the proper construction of cl.1(e) of the Deed, the lease was assigned to Mrs Jafari on 26 November 2004 and Lituma consented to that assignment on that day.' 'If the lease was assigned on 26 November 2004, whether s.129 of the Conveyancing Act 1919 applied to a default by Mrs Jafari of her obligations under the Deed.']

Ratio Decidendi

On the objective construction of the Deed, cl.1(e) used immediate language and formed part of completion of the sale of the business on 26 November 2004; Mrs Jafari made the completion payments, Lituma acted consistently with completion, and her possession and payment of rent were consistent with assignment. The requirements in cl.1(d), including provision of a bank guarantee, were conditions subsequent, not conditions precedent to assignment. Clause 4, read in light of the Deed's purpose, operated only if Mrs Jafari failed to make the completion payments in cl.1(b) and (c), and after assignment her failure to provide the bank guarantee was a breach of the lease as amended by the Deed....

Court Disposition

Declarations made; matter stood over for further directions.

Orders

  • ['The proper construction of cl.1(e) of the Deed is that the lease was assigned to Mrs Jafari on 26 November 2004 when Mrs Jafari made the payments set out in cl.1(b) and (c) of the Deed and Lituma Pty Ltd consented to that assignment at the same time.' 'The proper construction of cl.4 of the Deed is that Mrs Jafari...