Raymond Pemberton v Milivoj Dimitrijevic [2001] NSWSC 54

Raymond Pemberton v Milivoj Dimitrijevic [2001] NSWSC 54

The Lease was void for uncertainty because its termination depended on the registration of a proposed plan of subdivision, an event dependent on ministerial or departmental action and Council approval at dates that were unascertainable. However, the Contract, Licence and the parties' conduct showed that the defendant was to have exclusive possession of the Licensed Premises until reconveyance became possible; the plaintiff held legal title subject to the defendant's equitable interest, and it would be a breach of contract or unconscionable for the plaintiff to defeat that entitlement by sale, termination or revocation.

Jurisdiction
Australia
Judgment Date
21 February 2001
Procedural Posture
Equity Proceedings Concerning Lease Validity, Equitable Interest in Land, Estoppel and Injunctive Relief / Judgment After Hearing
Outcome
Plaintiff obtained a declaration that the Lease was void for uncertainty; defendant/cross claimant obtained declarations of estoppel, equitable interest, legal title subject to that interest, exclusive possession, and injunctive relief restraining disposal of the Licensed Premises.
Legal Topics
['lease Void for Uncertainty' 'licences Over Land' 'equitable Interest in Land' 'estoppel' 'subdivision and Reconveyance' 'injunction Restraining Disposal of Land']
['property Law' 'equity' 'contract Law'] ['lease Void for Uncertainty' 'licences Over Land' 'equitable Interest in Land' 'estoppel' 'subdivision and Reconveyance' 'injunction Restraining Disposal of Land']

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Procedural Posture

Equity Proceedings Concerning Lease Validity, Equitable Interest in Land, Estoppel and Injunctive Relief / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Lease registered no 0955400 was void for uncertainty because its termination depended on registration of a proposed plan of subdivision at an unascertainable date.' 'Whether the Lease was illegal by reason of s 327AA of the Local Government Act 1919.' "Whether uncertainty affecting the term of the Licence made the Licence void or otherwise defeated the defendant's rights." 'Whether the defendant had an equitable interest in the Licensed Premises and a right to occupy them until subdivision and reconveyance.' 'Whether the plaintiff should be restrained from disposing of any legal interest in the Licensed Premises.']

Ratio Decidendi

The Lease was void for uncertainty because its termination depended on the registration of a proposed plan of subdivision, an event dependent on ministerial or departmental action and Council approval at dates that were unascertainable. However, the Contract, Licence and the parties' conduct showed that the defendant was to have exclusive possession of the Licensed Premises until reconveyance became possible; the plaintiff held legal title subject to the defendant's equitable interest, and it would be a breach of contract or unconscionable for the plaintiff to defeat that entitlement by sale, termination or revocation.

Court Disposition

Plaintiff obtained a declaration that the Lease was void for uncertainty; defendant/cross claimant obtained declarations of estoppel, equitable interest, legal title subject to that interest, exclusive possession, and injunctive relief restraining disposal of the Licensed Premises.

Orders

  • ['A declaration that the Lease registered no 0955400 granted by the plaintiff to the defendant is void for uncertainty.' 'A declaration that the plaintiff/cross defendant is estopped from denying that the defendant/cross claimant is entitled to occupy that part of Lot 1 in Deposited Plan no 30211 known as 14 Clarke...