Akbulut v Crafted Central Pty Ltd - [2019] ACTMC 5

MAGISTRATES COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Akbulut v Crafted Central Pty Ltd
Citation:	[2019] ACTMC 5
Hearing Date(s):	11 October 2017; 14 June 2018; 22 October 2018
DecisionDate:	6 March 2019
Before:	Magistrate Morrison
Decision:	See paragraphs [22], [52] and [58]-[59]
Catchwords:	CIVIL LAW - Application under Leases (Commercial and Retail) Act 2001 (“Leases Act”) contesting termination – whether Landlord having given notice of termination because of proposed demolition can later give and rely upon notice of termination for breach – whether notice terminates lease or gives notice of intention to do so – construction of s 78 of Leases Act and consideration of Shepherd principle - whether terms of lease breached by Tenant – whether Landlord estopped from relying upon breach.
Legislation Cited:	Leases (Commercial and Retail Act) 2001 (ACT), ss 19, 78, 122–123, 125
Cases Cited:	Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd [2016] HCA 26 Custodial Limited v Cardinal Financial Services Limited and Ors [2004] QSC 452 Dominion Square Corporation v Aluminium Company of Canada (1942) SCR 73 Grundt v Great Boulder Pty Gold Mines Ltd (1937) 59 CLR 641 Melbourne Stadiums Ltd v Sautner (2015) 317 ALR 665 Shepherd v Felt and Textiles of Australia Ltd (1931) 45 CLR 359
Parties:	Mehmet Emin Akbulut (Plaintiff) Crafted Central Pty Ltd (Defendant)
Representation:	Counsel Mr Robens (Plaintiff) Mr Pattenden (Defendant) Solicitors Kamy Saeedi Law (Plaintiff) Aulich Civil Law (Defendant)
File Number:	CL 17 of 2017

MAGISTRATE MORRISON:

The present proceedings are brought under s 123 of the Leases (Commercial and Retail) Act 2001 (ACT) (“Leases Act”).
For ease of understanding, I refer to the Respondent, Crafted Central Pty Ltd, as the Landlord and the Applicant, Mr Mehmet Akbulut, as the Tenant. Most of the relevant interactions for the purposes of these proceedings were with Mr Muhammed Akbulut acting on behalf of his father Mehmet. It is not in contest that Mr Muhammed Akbulut was authorised to do so such that his acts are in effect the acts of the Tenant. For ease of reference, I will refer to Mr Muhammed Akbulut as “Mr Akbulut” in these reasons.
The following is not in dispute:
a.The Tenant is a party to the Lease dated 14 August 2014. It is in evidence as annexure ET1 to the Affidavit of Erin Brooke Taylor affirmed 29 November 2017. The Landlord is not named in the Lease but became bound by it as a successor in title to the named Lessor.
b.The parties are bound by the terms of the Lease. The Leases Act applies to the Lease.
c.The Landlord has given two termination notices to the Tenant in relation to the Lease. The first Notice was given on 13 April 2017 and can be conveniently described as the Demolition Notice. The second was given on 7 August 2017 and purports to rely upon a breach of the Lease by the Tenant. I refer to it as the Breach Notice. It is not in…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Akbulut v Crafted Central Pty Ltd

Details

AGLC: Akbulut v Crafted Central Pty Ltd [2019] ACTMC 5
Case: [2019] ACTMC 5
Decision Date: 6 March 2019

CaseChat Overview and Summary

Akbulut, the landlord, brought proceedings against Crafted Central, the tenant, in the Supreme Court of Victoria, seeking to terminate the lease of a retail premises. The primary issue was whether the landlord could, after giving notice of termination due to proposed demolition, subsequently issue another notice of termination for breach of lease. This raised questions about the interpretation of section 78 of the Leases (Commercial and Retail) Act 2001 and the applicability of the Shepherd principle. Additionally, the court had to determine if the tenant had breached any terms of the lease and if the landlord was estopped from relying on such breaches.

The court found that the first notice of termination was not effective as it was not explicitly tied to a specific breach of lease but rather was a general notice potentially covering any breach. Therefore, the first notice did not terminate the lease but rather gave notice of the landlord's intention to terminate. The court applied the Shepherd principle, which suggests that a landlord cannot rely on a subsequent breach notice if the initial notice was not tied to a specific breach. The court also held that the tenant had not breached the lease in a manner that would justify termination, and thus, the landlord was estopped from relying on any alleged breach.

Ultimately, the court dismissed the landlord's application to terminate the lease. The first notice was not effective, and the subsequent notice for breach was not valid given the initial notice. The court found that the tenant had not breached the lease and that the landlord was estopped from relying on any breaches. The final orders included dismissing the application, awarding costs to the tenant, and making a declaration that the lease remained in effect.

Orders

Orders of the court

See paragraphs [22], [52] and [58]-[59]

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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