In the matter of Fearndale Holdings Pty Limited [2019] NSWSC 645

In the matter of Fearndale Holdings Pty Limited [2019] NSWSC 645

The Plaintiffs validly terminated the Lease by serving notices compliant with s 129 of the Conveyancing Act 1919 (NSW). There was no requirement for a s 129 notice to specify the 'reasonable time' for compliance, provided a reasonable time had in fact elapsed. The Defendant's obligation to obtain development consents prior to the Lease and to pay rent/outgoings were essential terms not excused by alleged waiver, failure of consideration, or incidental use. Plaintiffs are entitled to possession, withdrawal of caveats, judgment for rent and outgoings, and costs (in part on indemnity basis).

Jurisdiction
Australia
Judgment Date
04 June 2019
Procedural Posture
Principal Judgment / Final Judgment After Contested Hearing
Outcome
Relief granted for Plaintiff; Lease validly terminated; Judgment for Plaintiff for amounts claimed; Defendant to withdraw caveats; Costs orders as specified
Legal Topics
['lease Termination' 'requirements Under Conveyancing Act 1919 (nsw) S 129' 'development Consents' 'notices to Remedy Breach' 'forfeiture and Re Entry' 'caveats' 'costs Orders']
['equity' 'corporations' 'leases and Tenancies'] ['lease Termination' 'requirements Under Conveyancing Act 1919 (nsw) S 129' 'development Consents' 'notices to Remedy Breach' 'forfeiture and Re Entry' 'caveats' 'costs Orders']

Case Brief

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Procedural Posture

Principal Judgment / Final Judgment After Contested Hearing

Legal Issues

  1. 1 ['Whether the notices of termination issued by the Plaintiffs complied with s 129 of the Conveyancing Act 1919 (NSW) and validly terminated the lease' 'Whether the Defendant was required to obtain all relevant consents/approvals for the permitted use (mining) prior to entry into or occupation under the lease' 'Whether the obligation to pay rent and outgoings survived the circumstances in which the Defendant tendered payment and was refused possession' "Whether the Defendant's claim of waiver or total failure of consideration prevailed" 'Whether the caveats lodged by the Defendant should be withdrawn' 'Appropriate orders as to costs']

Ratio Decidendi

The Plaintiffs validly terminated the Lease by serving notices compliant with s 129 of the Conveyancing Act 1919 (NSW). There was no requirement for a s 129 notice to specify the 'reasonable time' for compliance, provided a reasonable time had in fact elapsed. The Defendant's obligation to obtain development consents prior to the Lease and to pay rent/outgoings were essential terms not excused by alleged waiver, failure of consideration, or incidental use. Plaintiffs are entitled to possession, withdrawal of caveats, judgment for rent and outgoings, and costs (in part on indemnity basis).

Court Disposition

Relief granted for Plaintiff; Lease validly terminated; Judgment for Plaintiff for amounts claimed; Defendant to withdraw caveats; Costs orders as specified

Orders

  • ['Declare the First Plaintiff validly and effectively terminated the Lease as at 22 March 2019' 'Judgment for First Plaintiff against Defendant for $341,890.72 for rent for 25 June 2018 to 15 May 2019' 'Judgment for First Plaintiff for $34,157.10 for outgoings (Statement of Outgoings dated 12 February 2019)'...