Telaro Pty Ltd v Burns & Ors [2000] NSWSC 26

Telaro Pty Ltd v Burns & Ors [2000] NSWSC 26

Serving a notice to quit and commencing proceedings for possession did not amount to exercising a 'power' within Corporations Law s 441F, so s 440C applied and the plaintiff required leave to recover possession. Leave for judgment for possession was refused at this stage because applying Part 5.3A consistently with s 435A favoured permitting the third defendant to remain temporarily to preserve trading, goodwill and potential creditor returns, while the evidence of the plaintiff's likely loss was thin. The plaintiff was nevertheless entitled to the declaration and injunction concerning the third defendant's month-to-month tenancy.

Jurisdiction
Australia
Judgment Date
04 February 2000
Procedural Posture
Corporations Administration; Proceedings for Declaration, Injunction and Possession of Land / Hearing of Summons Including Whether Leave Was Required and Should Be Granted Under Corporations Law S 440 C
Outcome
Declaration and injunction granted; claim for possession dismissed at this stage; costs orders made.
Legal Topics
['voluntary Administration' "lessor's Recovery of Property Occupied by Company Under Administration" 'leave to Proceed' 'notice to Quit' 'tenancy From Month to Month']
['corporations Law' 'property Law' 'civil Procedure'] ['voluntary Administration' "lessor's Recovery of Property Occupied by Company Under Administration" 'leave to Proceed' 'notice to Quit' 'tenancy From Month to Month']

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Procedural Posture

Corporations Administration; Proceedings for Declaration, Injunction and Possession of Land / Hearing of Summons Including Whether Leave Was Required and Should Be Granted Under Corporations Law S 440 C

Legal Issues

  1. 1 ['Whether Corporations Law s 440C prevented the plaintiff lessor from proceeding without leave to recover possession of Unit 2 occupied by the third defendant under administration.' 'Whether Corporations Law s 441F applied because the plaintiff had served a notice to quit and commenced proceedings before the administration began.' 'Whether leave under Corporations Law s 440C should be granted for the plaintiff to obtain judgment for possession.' 'Whether the plaintiff was entitled to relief declaring the tenancy to be from month to month and restraining lodgment of a caveat asserting a greater term.']

Ratio Decidendi

Serving a notice to quit and commencing proceedings for possession did not amount to exercising a 'power' within Corporations Law s 441F, so s 440C applied and the plaintiff required leave to recover possession. Leave for judgment for possession was refused at this stage because applying Part 5.3A consistently with s 435A favoured permitting the third defendant to remain temporarily to preserve trading, goodwill and potential creditor returns, while the evidence of the plaintiff's likely loss was thin. The plaintiff was nevertheless entitled to the declaration and injunction concerning the third defendant's month-to-month tenancy.

Court Disposition

Declaration and injunction granted; claim for possession dismissed at this stage; costs orders made.

Orders

  • ['Declaration and order sought in paragraphs 3 and 4 of the summons to be made, defined to reflect the discussion.' 'Claim for relief in paragraph 5 of the summons dismissed.' "The plaintiff is granted leave, if leave was necessary, to establish that the third defendant's tenancy was only a tenancy from month to...