MJHQ Pty Limited v Wynne Ave Pty Limited [2018] NSWCATCD 61

MJHQ Pty Limited v Wynne Ave Pty Limited [2018] NSWCATCD 61

The demolition notice was not a 'genuine proposal for demolition within a reasonably practicable time after the lease is to be terminated' as required by s 35(1)(a) of the Retail Leases Act 1994. The evidence from the landlord did not establish an operative, binding contract for works to commence after the applicant's lease ended, and there was insufficient detail about timing and arrangements for the proposed demolition. Therefore, the notice was invalid.

Parties
Applicant: MJHQ Pty Limited; Respondent: Wynne Ave Pty Limited
Jurisdiction
Australia
Judgment Date
23 October 2018
Procedural Posture
Retail Lease Dispute/tribunal Proceedings / Merits Hearing and Final Decision
Outcome
Applicant successful in primary claim; notice of termination declared invalid; claim for damages withdrawn and dismissed.
Legal Topics
Retail Leases, Termination of Lease, Demolition Notice, Genuine Proposal, Good Faith, Lease Agreements
Property Law Commercial Law Retail Leases Termination of Lease Demolition Notice Genuine Proposal Good Faith Lease Agreements

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Parties

MJHQ Pty Limited

Applicant

Wynne Ave Pty Limited

Respondent

Procedural Posture

Retail Lease Dispute/tribunal Proceedings / Merits Hearing and Final Decision

Legal Issues

  1. 1 Whether the demolition notice dated 25 August 2017 was a 'genuine proposal' within the meaning of s 35(1)(a) Retail Leases Act 1994 (NSW)
  2. 2 Whether the demolition notice complied with the statutory requirements for terminating the lease for proposed demolition
  3. 3 Whether the landlord was acting in good faith issuing the demolition notice

Ratio Decidendi

The demolition notice was not a 'genuine proposal for demolition within a reasonably practicable time after the lease is to be terminated' as required by s 35(1)(a) of the Retail Leases Act 1994. The evidence from the landlord did not establish an operative, binding contract for works to commence after the applicant's lease ended, and there was insufficient detail about timing and arrangements for the proposed demolition. Therefore, the notice was invalid.

Court Disposition

Applicant successful in primary claim; notice of termination declared invalid; claim for damages withdrawn and dismissed.

Orders

  • Declares that the notice to terminate issued by the respondent to the applicant dated 25 August 2017 is invalid as inconsistent with s 35(1)(a) of the Retail Leases Act 1994.
  • The applicant's claim for damages is withdrawn and accordingly dismissed under s 55(1) of the Civil and Administrative Tribunal Act 2013.