The Migrant’s Son Pty Ltd v Yagmur [2021] NSWSC 1236

The Migrant’s Son Pty Ltd v Yagmur [2021] NSWSC 1236

Clause 30.1 (tenant's right to purchase) was not triggered as the 'Landlord' was never jointly desirous of selling the 'Premises' to an unrelated third party; the internal transfer to a company controlled by one partner as part of partnership dissolution did not amount to an arm's length sale within the clause's meaning; and, even if clause 30.1 was engaged and breached, Migrant's Son failed to prove any loss as damages would be assessed at the market price as at the date of breach and the tenant would have had to purchase at that price, resulting in no compensable loss.

Parties
Plaintiff: The Migrant's Son Pty Ltd; First Defendant: Ali Yagmur; Second Defendant: Kenan Yagmur
Jurisdiction
Australia
Judgment Date
29 September 2021
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Proceedings dismissed with costs.
Legal Topics
Leases and Tenancies, Right of First Refusal, Damages, Contract Construction
Equity Real Property Leases and Tenancies Right of First Refusal Damages Contract Construction

Case Brief

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Parties

The Migrant's Son Pty Ltd

Plaintiff

Ali Yagmur

First Defendant

Kenan Yagmur

Second Defendant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether the transfer of partnership interests triggered the tenant's first right to purchase under lease clause 30.1
  2. 2 Whether failure to issue notice constituted a breach of clause 30.1
  3. 3 Whether 'selling' includes inter-partner transfers on dissolution

Ratio Decidendi

Clause 30.1 (tenant's right to purchase) was not triggered as the 'Landlord' was never jointly desirous of selling the 'Premises' to an unrelated third party; the internal transfer to a company controlled by one partner as part of partnership dissolution did not amount to an arm's length sale within the clause's meaning; and, even if clause 30.1 was engaged and breached, Migrant's Son failed to prove any loss as damages would be assessed at the market price as at the date of breach and the tenant would have had to purchase at that price, resulting in no compensable loss.

Court Disposition

Proceedings dismissed with costs.

Orders

  • Proceedings dismissed.
  • The plaintiff is to pay the defendants' costs.