Mirvac Funds Management Ltd v Value Lodging Pty Ltd [2022] NSWSC 787

Mirvac Funds Management Ltd v Value Lodging Pty Ltd [2022] NSWSC 787

The notices of termination were actually received by Value Lodging at about 6:15pm on 30 March 2022 when an authorised Toga Group employee signed for them, so 30 March 2022 was the date of service. Because the leases and sub-leases defined "Month" as a named month, that definition displaced the calendar-month meaning otherwise supplied by s 181(1)(d) of the Conveyancing Act 1919 (NSW); excluding the date of service, 3 named Months included April, May and June 2022, so vacant possession could not be required until 1 July 2022. Although the notices erroneously required vacant possession no later than 30 June 2022, a reasonable recipient would understand that vacant possession was sought...

Jurisdiction
Australia
Judgment Date
16 June 2022
Procedural Posture
Equity Proceedings Concerning Validity and Effectiveness of Notices of Termination of Leases and Sub Leases / Principal Judgment on Amended Summons for Declaratory Relief and Vacant Possession
Outcome
Notices of termination held to be valid and effective. Plaintiffs held entitled to vacant possession by midnight at the end of 1 July 2022, subject to payment of Termination Fees in accordance with the leases or sub-leases.
Legal Topics
['validity of Notices of Termination' 'calculation of 3 Months From Date of Service' 'named Month and Calendar Month' 'vacant Possession' 'mannai Principles' 'notice of Intention to Sell or Assign']
['land Law' 'leases and Subleases' 'contract Interpretation'] ['validity of Notices of Termination' 'calculation of 3 Months From Date of Service' 'named Month and Calendar Month' 'vacant Possession' 'mannai Principles' 'notice of Intention to Sell or Assign']

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Procedural Posture

Equity Proceedings Concerning Validity and Effectiveness of Notices of Termination of Leases and Sub Leases / Principal Judgment on Amended Summons for Declaratory Relief and Vacant Possession

Legal Issues

  1. 1 ['What is the date of service of the notices of termination.' 'What is "3 Months from the date of service" within the meaning of cl 18.3(d)(ii) of the leases and cl 19.3(d)(ii) of the sub-leases.' 'If "3 Months from the date of service" is 1 July 2022 rather than 30 June 2022 as referred to in the notices, whether the notices are nonetheless valid notices pursuant to cl 18.3(d) of the leases or cl 19.3(d) of the sub-leases.' 'Whether the notices are ineffective because of a failure to comply with the requirements of cl 18.3(b) of the leases or cl 19.3(b) of the sub-leases.']

Ratio Decidendi

The notices of termination were actually received by Value Lodging at about 6:15pm on 30 March 2022 when an authorised Toga Group employee signed for them, so 30 March 2022 was the date of service. Because the leases and sub-leases defined "Month" as a named month, that definition displaced the calendar-month meaning otherwise supplied by s 181(1)(d) of the Conveyancing Act 1919 (NSW); excluding the date of service, 3 named Months included April, May and June 2022, so vacant possession could not be required until 1 July 2022. Although the notices erroneously required vacant possession no later than 30 June 2022, a reasonable recipient would understand that vacant possession was sought...

Court Disposition

Notices of termination held to be valid and effective. Plaintiffs held entitled to vacant possession by midnight at the end of 1 July 2022, subject to payment of Termination Fees in accordance with the leases or sub-leases.

Orders

  • ['Declarations to be made in accordance with paragraphs 1(a) to 1(j) of the Amended Summons that each notice of termination is valid and effective.' 'Subject to payment by the plaintiffs to the first defendant of the Termination Fee in accordance with cl 18 of the lease or cl 19 of the sub-lease, as applicable, the...