Nguyen v Valore [2018] NSWSC 1364

Nguyen v Valore [2018] NSWSC 1364

The Lease had not been terminated before the option was exercised because neither the Letter nor the Notice identified the alleged breach and required remedy with sufficient clarity to satisfy s 129 of the Conveyancing Act 1919 (NSW). Mr Nguyen did not transfer the Lease and, although Mortgage Choice involved a partial change of use, the defendants' refusal of consent was unreasonable and no breach preventing renewal was established on that basis. Mr Nguyen did breach cl 7.6 by erecting the wall without consent and cl 6.1.4 by doing so without required building approval, but the other alleged breaches were not proved. In the circumstances, including the limited nature of the breach,...

Jurisdiction
Australia
Judgment Date
06 September 2018
Procedural Posture
Landlord and Tenant; Commercial Lease Dispute Concerning Termination, Alleged Breaches and Exercise of Option to Renew / Principal Judgment After Hearing of Summons Filed on 18 October 2017
Outcome
The Court held that the Lease had not been terminated before exercise of the option, found breaches only in relation to erecting the wall without consent and without building approval, and concluded that relief under s 133F of the Conveyancing Act 1919 (NSW) should be granted subject to a condition requiring removal...
Legal Topics
['termination of Lease' 'validity of S 129 Notice' 'exercise of Option to Renew' 'relief Against Forfeiture' 'breach of Commercial Lease' 'consent to Alterations and Change of Use']
['landlord and Tenant' 'property Law' 'equity'] ['termination of Lease' 'validity of S 129 Notice' 'exercise of Option to Renew' 'relief Against Forfeiture' 'breach of Commercial Lease' 'consent to Alterations and Change of Use']

Case Brief

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Procedural Posture

Landlord and Tenant; Commercial Lease Dispute Concerning Termination, Alleged Breaches and Exercise of Option to Renew / Principal Judgment After Hearing of Summons Filed on 18 October 2017

Legal Issues

  1. 1 ["Whether the Lease had been terminated before the plaintiff exercised the option to renew by the defendants' re-entry on 19 June 2017." 'Whether the Letter and Notice complied with s 129 of the Conveyancing Act 1919 (NSW).' 'Whether the plaintiff was in breach of the Lease at the time the option was exercised.' "Whether the plaintiff's permitting Mortgage Choice to occupy part of the Premises was a transfer, subletting or unauthorised change of use." 'Whether erecting the internal wall breached cl 7.6 and cl 6.1.4 of the Lease or other clauses relied on by the defendants.' 'Whether the Court should grant relief under s 133F of the Conveyancing Act 1919 (NSW), and on what conditions.']

Ratio Decidendi

The Lease had not been terminated before the option was exercised because neither the Letter nor the Notice identified the alleged breach and required remedy with sufficient clarity to satisfy s 129 of the Conveyancing Act 1919 (NSW). Mr Nguyen did not transfer the Lease and, although Mortgage Choice involved a partial change of use, the defendants' refusal of consent was unreasonable and no breach preventing renewal was established on that basis. Mr Nguyen did breach cl 7.6 by erecting the wall without consent and cl 6.1.4 by doing so without required building approval, but the other alleged breaches were not proved. In the circumstances, including the limited nature of the breach,...

Court Disposition

The Court held that the Lease had not been terminated before exercise of the option, found breaches only in relation to erecting the wall without consent and without building approval, and concluded that relief under s 133F of the Conveyancing Act 1919 (NSW) should be granted subject to a condition requiring removal...

Orders

  • ['The parties are to bring in short minutes of order to give effect to the reasons for judgment, and costs if agreed, within 14 days of the decision date.' 'If the parties cannot agree on the terms of the short minutes of order or costs within that time, the matter should be relisted by contacting the Associate to...