Easy Buy International Pty Limited v Macquaire Goodman Property Services Pty Limited & Ors [2006] NSWSC 148

Easy Buy International Pty Limited v Macquaire Goodman Property Services Pty Limited & Ors [2006] NSWSC 148

Retail sales conducted directly to the public from the premises were in breach of the permitted use under the lease, which allowed only 'warehousing and distribution.' However, as the tenancy had extended beyond one year (including holding-over), s 129 of the Conveyancing Act applied, requiring the fourth defendant to give notice before forfeiture. The failure of the landlord to provide proper notice entitled the plaintiff to relief, subject to undertakings against public retail sales and requirements regarding council consent.

Parties
Plaintiff: Easy Buy International Pty Limited; First Defendant: Macquarie Goodman Property Services Pty Limited; Second Defendant: Macquarie Goodman Management Limited; Third Defendant: Macquarie Goodman Funds Management Limited; Fourth Defendant: Trust Company of Australia Limited
Jurisdiction
Australia
Judgment Date
22 March 2006
Procedural Posture
Injunction / Lease Dispute / Final Hearing After Interlocutory Injunction
Outcome
Injunction granted with conditions.
Legal Topics
Permitted Use of Premises, Forfeiture of Lease, Relief Against Forfeiture, Periodic Tenancies, Breach of Lease, Quiet Enjoyment, Injunctive Relief
Lease Law Equity Permitted Use of Premises Forfeiture of Lease Relief Against Forfeiture Periodic Tenancies Breach of Lease Quiet Enjoyment +1 more

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Parties

Easy Buy International Pty Limited

Plaintiff

Macquarie Goodman Property Services Pty Limited

First Defendant

Macquarie Goodman Management Limited

Second Defendant

Macquarie Goodman Funds Management Limited

Third Defendant

Trust Company of Australia Limited

Fourth Defendant

Procedural Posture

Injunction / Lease Dispute / Final Hearing After Interlocutory Injunction

Legal Issues

  1. 1 Whether 'warehousing and distribution' permitted use includes distribution by sale, specifically retail sales
  2. 2 Whether plaintiff was in breach of permitted use under the lease
  3. 3 Whether s 129 of the Conveyancing Act 1919 applies to the tenancy and required a notice before forfeiture

Ratio Decidendi

Retail sales conducted directly to the public from the premises were in breach of the permitted use under the lease, which allowed only 'warehousing and distribution.' However, as the tenancy had extended beyond one year (including holding-over), s 129 of the Conveyancing Act applied, requiring the fourth defendant to give notice before forfeiture. The failure of the landlord to provide proper notice entitled the plaintiff to relief, subject to undertakings against public retail sales and requirements regarding council consent.

Court Disposition

Injunction granted with conditions.

Orders

  • Defendants are restrained from taking possession or interfering with the plaintiff's quiet enjoyment of the premises at 165 Mitchell Road, Alexandria, until the expiration of the plaintiff's notice of termination (served 27 February 2006), subject to the plaintiff ceasing all retail sales to the public from the...
  • If the parties are unable to agree on costs, the court will hear further argument.