G & M Dawson Pty Ltd v Cripps, Jones & Anor [2003] NSWADT 274

G & M Dawson Pty Ltd v Cripps, Jones & Anor [2003] NSWADT 274

The contract of sale, properly construed, required Cripps & Jones to take the property subject to Dawson's lease and to attend to registration; their undertaking went beyond mere notice of Dawson's unregistered interest, so Dawson could assert that interest against their registered title. Cripps & Jones were not entitled under the Retail Leases Act 1994 to withhold consent to the assignment to Kilbane, but Dawson proved only wasted legal costs of $3,115 as recoverable loss; the claimed difference between sale prices and losses from continuing the business were too remote or not established as recoverable loss.

Jurisdiction
Australia
Judgment Date
23 December 2003
Procedural Posture
Claim for Payment of Money Concerning a Retail Shop Lease / Principal Matter
Outcome
Application allowed in part; Dawson awarded $3,115 against Cripps & Jones, with costs and interest reserved for submissions.
Legal Topics
['unregistered Lease' 'indefeasibility of Title' 'fraud Exception to Indefeasibility' 'assignment of Retail Shop Lease' 'consent to Assignment' 'construction of Contract of Sale' 'remoteness of Damages']
['retail Leases' 'real Property' 'contract' 'equity' 'damages'] ['unregistered Lease' 'indefeasibility of Title' 'fraud Exception to Indefeasibility' 'assignment of Retail Shop Lease' 'consent to Assignment' 'construction of Contract of Sale' 'remoteness of Damages']

Case Brief

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Procedural Posture

Claim for Payment of Money Concerning a Retail Shop Lease / Principal Matter

Legal Issues

  1. 1 ['Whether G & M Dawson Pty Limited had a valid and subsisting lease of Shop 1, Eton Arcade, 754 Princes Highway, Sutherland for a term commencing 16 June 2000 and terminating 15 June 2003 with an option to renew for 3 years.' 'Whether H G & R Securities Pty Limited breached its obligation under clause 11.4 of the lease to ensure registration of the lease.' "Whether the contract of sale imposed on Kerrie Frances Cripps and Madonna Kaye Jones an obligation to attend to registration of the lease and to recognise Dawson's unregistered leasehold rights." "Whether Cripps & Jones could rely on indefeasibility of title under section 42 of the Real Property Act 1900, or whether their conduct gave rise to fraud or an equity allowing Dawson's unregistered interest to be asserted against them." 'Whether Cripps & Jones were entitled under the Retail Leases Act 1994 to withhold consent to the proposed assignment of the lease to Kilbane.' 'What damages were recoverable for the failure to register the lease and refusal to consent to assignment.']

Ratio Decidendi

The contract of sale, properly construed, required Cripps & Jones to take the property subject to Dawson's lease and to attend to registration; their undertaking went beyond mere notice of Dawson's unregistered interest, so Dawson could assert that interest against their registered title. Cripps & Jones were not entitled under the Retail Leases Act 1994 to withhold consent to the assignment to Kilbane, but Dawson proved only wasted legal costs of $3,115 as recoverable loss; the claimed difference between sale prices and losses from continuing the business were too remote or not established as recoverable loss.

Court Disposition

Application allowed in part; Dawson awarded $3,115 against Cripps & Jones, with costs and interest reserved for submissions.

Orders

  • ['Kerrie Frances Cripps and Madonna Kaye Jones are jointly and severally liable to pay to G & M Dawson Pty Limited the amount of $3,115.00. This amount is to be paid within 21 days of the date of these reasons.' 'Each party is invited to file written submissions in relation to the issues of interest or costs within...