SPATHIS v HANAVE INVESTMENT CO. P/L & ANOR [2001] NSWSC 265

SPATHIS v HANAVE INVESTMENT CO. P/L & ANOR [2001] NSWSC 265

Clause 11(d), on its grammar, setting-out and context, was governed by the opening words of clause 11. The lessor's right to terminate on six months' notice for demolition or reconstruction arose only if the premises or building had first been destroyed or damaged in the circumstances described in the opening words. Because no such destruction or damage had occurred, the notice of termination was ineffective, the lease remained valid and binding until 12 May 2002, and the plaintiff was entitled to declarations and a permanent injunction protecting possession.

Jurisdiction
Australia
Judgment Date
11 April 2001
Procedural Posture
Landlord and Tenant Lease Dispute Concerning Termination Under a Demolition Clause / Final Judgment on Summons for Declarations and a Permanent Injunction
Outcome
Plaintiff succeeded; declarations and permanent injunction granted; defendants ordered to pay the plaintiff's costs.
Legal Topics
['construction of Lease' 'retail Lease' 'demolition or Break Clause' 'termination Notice' 'quiet Enjoyment' 'injunctive Relief']
['property Law' 'landlord and Tenant' 'contract Law' 'equity'] ['construction of Lease' 'retail Lease' 'demolition or Break Clause' 'termination Notice' 'quiet Enjoyment' 'injunctive Relief']

Case Brief

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Procedural Posture

Landlord and Tenant Lease Dispute Concerning Termination Under a Demolition Clause / Final Judgment on Summons for Declarations and a Permanent Injunction

Legal Issues

  1. 1 ["Whether clause 11(d) of the lease conferred a free-standing right on the lessor to terminate on six months' notice for demolition or reconstruction." 'Whether clause 11(d) was governed by the opening words of clause 11 and could operate only where the premises or building had been destroyed or damaged by fire, lightning, storm, tempest or other damaging or disabling cause.' 'Whether the notice given by the lessor operated as a valid termination of the lease.' 'Whether the plaintiff was entitled to declarations and an injunction protecting possession under the registered lease.']

Ratio Decidendi

Clause 11(d), on its grammar, setting-out and context, was governed by the opening words of clause 11. The lessor's right to terminate on six months' notice for demolition or reconstruction arose only if the premises or building had first been destroyed or damaged in the circumstances described in the opening words. Because no such destruction or damage had occurred, the notice of termination was ineffective, the lease remained valid and binding until 12 May 2002, and the plaintiff was entitled to declarations and a permanent injunction protecting possession.

Court Disposition

Plaintiff succeeded; declarations and permanent injunction granted; defendants ordered to pay the plaintiff's costs.

Orders

  • ['Declarations in terms of Claims 1, 2 and 3 in the Summons.' 'Permanent injunction in terms of Claim 4.' "Order that the defendants pay the plaintiff's costs of the proceedings."]