Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) & Anor [2019] NSWCA 312

Drama Unit Pty Ltd v Fearndale Holdings Pty Ltd (Administrator Appointed) & Anor [2019] NSWCA 312

The appeal was allowed in part because Fearndale's wrongful refusal to give Drama Unit possession constituted an eviction suspending the obligation to pay rent, so the rent judgment could not stand. That eviction did not suspend Drama Unit's separate obligation to pay outgoings. Drama Unit was not in breach of cl 7.3(4)(d) because it had not gone into occupation and had not obtained consents to provide, but it was in breach of cl 7.3(4)(b) because during the lease term it was required to maintain the authorisation and licence necessary or appropriate for its mining business. The s 129 notices for those breaches were effective even though they did not specify a reasonable time for remedy,...

Jurisdiction
Australia
Judgment Date
17 December 2019
Procedural Posture
Appeal Concerning Termination of a Quarry Lease and Claims for Unpaid Rent and Outgoings / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, [2019] NSWSC 645
Outcome
Appeal allowed in part.
Legal Topics
['eviction by Landlord' 'suspension of Obligation to Pay Rent' 'lease Construction' 'termination of Lease' 'conveyancing Act 1919 (nsw), S 129 Notices' 'consents and Approvals for Mining Business' 'outgoings Under Lease']
['leases and Tenancies' 'property Law' 'contract Law'] ['eviction by Landlord' 'suspension of Obligation to Pay Rent' 'lease Construction' 'termination of Lease' 'conveyancing Act 1919 (nsw), S 129 Notices' 'consents and Approvals for Mining Business' 'outgoings Under Lease']

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Procedural Posture

Appeal Concerning Termination of a Quarry Lease and Claims for Unpaid Rent and Outgoings / Court of Appeal From Orders of the Supreme Court of New South Wales, Equity Division, [2019] NSWSC 645

Legal Issues

  1. 1 ['Whether Fearndale was entitled to recover unpaid rent and outgoings where it had refused to give possession of the leased premises to Drama Unit.' 'Whether Drama Unit was in breach of cl 7.3(4)(b) or cl 7.3(4)(d) for failing to hold, and provide copies of, an authorisation under the Mining Act 1992 (NSW) and a licence under the Protection of the Environment Operations Act 1997 (NSW).' 'Whether breach notices served under Conveyancing Act 1919 (NSW), s 129 were ineffective because they did not specify the reasonable time in which the breach was to be remedied.']

Ratio Decidendi

The appeal was allowed in part because Fearndale's wrongful refusal to give Drama Unit possession constituted an eviction suspending the obligation to pay rent, so the rent judgment could not stand. That eviction did not suspend Drama Unit's separate obligation to pay outgoings. Drama Unit was not in breach of cl 7.3(4)(d) because it had not gone into occupation and had not obtained consents to provide, but it was in breach of cl 7.3(4)(b) because during the lease term it was required to maintain the authorisation and licence necessary or appropriate for its mining business. The s 129 notices for those breaches were effective even though they did not specify a reasonable time for remedy,...

Court Disposition

Appeal allowed in part.

Orders

  • ['Appeal allowed in part.' 'Vary the declaration made by order 1 of 4 June 2019 to provide: Declare that on 22 March 2019 the first plaintiff validly terminated the lease with a commencing date 23 March 2017 between it and the defendant for breaches of cl 7.3(4)(b).' 'Set aside the judgment for the first plaintiff...