Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd - [2010] NSWCA 374

New South Wales

Court of Appeal

CITATION: Dee-Tech Pty Ltd & Anor v Neddam Holdings Pty Limited [2010] NSWCA 374
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 1 December 2010

JUDGMENT DATE:
22 December 2010

JUDGMENT OF: Campbell JA at 1; Young JA at 2; Sackville AJA at 3

DECISION: 1. Appeal allowed.
2. Set aside Orders 1, 2, 6, 7, 8, 11 and 12 made on 17 December 2009.
3. Note that the setting aside of Order 2 made on 17 December 2009 is subject to the appellants' counsel giving to the Court the usual undertaking as to damages.
4. Order that, save for Orders 3, 4, 5, 9, 10 and 11 made on 17 December 2009, the amended cross-claim filed by the respondent on 19 December 2008 be dismissed.
5. Declare that the first appellant validly exercised the option to renew Registered Lease No 6399422Q, as varied by the Variation of Lease dated 28 May 2002, so as to create a term of three years commencing on 1 February 2008 and terminating on 31 January 2011.
6. No order is made as to the costs of the appellants’ claim or of the respondent’s cross-claim in the proceedings determined by the orders made on 17 December 2009.
7. Order the respondent to pay 20% of the appellants’ costs of the appeal, including reserved costs.
8. Remit the proceedings to the Equity Division for determination of any outstanding issues in the appellant’s statement of claim.
9. Direct that the costs of any further proceedings be determined by the Equity Division.
[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

CATCHWORDS: LANDLORD AND TENANT - option to renew a registered lease for a three-year term – option exercised – landlord served a notice under s 129 of the Conveyancing Act 1919 (NSW) alleging breaches of its renewed lease – whether landlord had terminated lease – whether landlord had made an unequivocal demand for possession or communicated unequivocally that the lease was at an end - COSTS - neither party identified correct issue at trial – appropriate cost orders where the appellants succeeded on a point not taken at trial

LEGISLATION CITED: Conveyancing Act 1919 (NSW)Real Property Act 1900 (NSW)

CATEGORY: Principal judgment

CASES CITED: Consolidated Developments Pty Ltd v Holt (1986) 6 NSWLR 607
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2) [2009] NSWSC 1355
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 151
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 290
Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market…

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.

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Details

Case: [2010] NSWCA 374
Decision Date: 22 December 2010

CaseChat Overview and Summary

In Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd, the New South Wales Court of Appeal considered a dispute between a landlord and tenant concerning a renewed registered lease. The tenant, Dee-Tech Pty Ltd, had exercised an option to renew a three-year term of its lease. The landlord, Neddam Holdings Pty Ltd, subsequently served a notice under section 129 of the Conveyancing Act 1919 (NSW), alleging breaches of the renewed lease. The central question before the Court of Appeal was whether the landlord's actions constituted a valid termination of the lease, specifically whether the landlord had made an unequivocal demand for possession or communicated unequivocally that the lease was at an end.

The Court of Appeal was required to determine whether the notice served by the landlord under section 129 of the Conveyancing Act 1919 (NSW) was effective to terminate the renewed lease. This involved assessing whether the landlord's communication amounted to an unequivocal demand for possession or a clear statement that the lease was terminated. Additionally, the Court considered the appropriate costs orders, particularly in circumstances where a party succeeded on a point not initially raised at trial.

The Court of Appeal allowed the appeal, finding that the landlord had not validly terminated the lease. The reasoning focused on the requirement for a landlord to make an unequivocal demand for possession or to communicate unequivocally that the lease was at an end to effect a termination under section 129. The Court determined that the landlord's notice did not meet this threshold. Consequently, the Court set aside certain orders made by the lower court and declared that the tenant had validly exercised its option to renew the lease. Regarding costs, the Court made no order as to the costs of the original claim or cross-claim, but ordered the respondent landlord to pay 20% of the appellant tenant's costs of the appeal. The proceedings were remitted to the Equity Division for the determination of any outstanding issues.

Orders

Orders of the court

1. Appeal allowed.

2. Set aside Orders 1, 2, 6, 7, 8, 11 and 12 made on 17 December 2009.

3. Note that the setting aside of Order 2 made on 17 December 2009 is subject to the appellants' counsel giving to the Court the usual undertaking as to damages.

4. Order that, save for Orders 3, 4, 5, 9, 10 and 11 made on 17 December 2009, the amended cross-claim filed by the respondent on 19 December 2008 be dismissed.

5. Declare that the first appellant validly exercised the option to renew Registered Lease No 6399422Q, as varied by the Variation of Lease dated 28 May 2002, so as to create a term of three years commencing on 1 February 2008 and terminating on 31 January 2011.

6. No order is made as to the costs of the appellants’ claim or of the respondent’s cross-claim in the proceedings determined by the orders made on 17 December 2009.

7. Order the respondent to pay 20% of the appellants’ costs of the appeal, including reserved costs.

8. Remit the proceedings to the Equity Division for determination of any outstanding issues in the appellant’s statement of claim.

9. Direct that the costs of any further proceedings be determined by the Equity Division.

[The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Dee-Tech Pty Ltd & Anor v Neddam Holdings Pty Limited [2010] NSWCA 374 This decision has been amended. Please see the end of the judgment for a list of the amendments.
HEARING DATE(S):	1 December 2010
JUDGMENT DATE:	22 December 2010
JUDGMENT OF:	Campbell JA at 1; Young JA at 2; Sackville AJA at 3
DECISION:	1. Appeal allowed. 2. Set aside Orders 1, 2, 6, 7, 8, 11 and 12 made on 17 December 2009. 3. Note that the setting aside of Order 2 made on 17 December 2009 is subject to the appellants' counsel giving to the Court the usual undertaking as to damages. 4. Order that, save for Orders 3, 4, 5, 9, 10 and 11 made on 17 December 2009, the amended cross-claim filed by the respondent on 19 December 2008 be dismissed. 5. Declare that the first appellant validly exercised the option to renew Registered Lease No 6399422Q, as varied by the Variation of Lease dated 28 May 2002, so as to create a term of three years commencing on 1 February 2008 and terminating on 31 January 2011. 6. No order is made as to the costs of the appellants’ claim or of the respondent’s cross-claim in the proceedings determined by the orders made on 17 December 2009. 7. Order the respondent to pay 20% of the appellants’ costs of the appeal, including reserved costs. 8. Remit the proceedings to the Equity Division for determination of any outstanding issues in the appellant’s statement of claim. 9. Direct that the costs of any further proceedings be determined by the Equity Division. [The Uniform Civil Procedure Rules 2005 provide (Rule 36.11) that unless the Court otherwise orders, a judgment or order is taken to be entered when it is recorded in the Court's computerised court record system. Setting aside and variation of judgments or orders is dealt with by Rules 36.15, 36.16, 36.17 and 36.18. Parties should in particular note the time limit of fourteen days in Rule 36.16.]
CATCHWORDS:	LANDLORD AND TENANT - option to renew a registered lease for a three-year term – option exercised – landlord served a notice under s 129 of the Conveyancing Act 1919 (NSW) alleging breaches of its renewed lease – whether landlord had terminated lease – whether landlord had made an unequivocal demand for possession or communicated unequivocally that the lease was at an end - COSTS - neither party identified correct issue at trial – appropriate cost orders where the appellants succeeded on a point not taken at trial
LEGISLATION CITED:	Conveyancing Act 1919 (NSW)Real Property Act 1900 (NSW)
CATEGORY:	Principal judgment
CASES CITED:	Consolidated Developments Pty Ltd v Holt (1986) 6 NSWLR 607 Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2) [2009] NSWSC 1355 Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 151 Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2010] NSWCA 290 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market…