Jafari v Lituma Pty Ltd - [2005] NSWADT 64

CITATION: Jafari v Lituma Pty Ltd [2005] NSWADT 64

DIVISION: Retail Leases Division

PARTIES: FIRST APPLICANT
Zahra Jafari
FIRST RESPONDENT
Lituma Pty Ltd
SECOND APPLICANT
Lituma Pty Ltd
SECOND RESPONDENT
Zahra Jafari

FILE NUMBER: 055016, 055024

HEARING DATES: 14/03/2005

SUBMISSIONS CLOSED: 03/14/2005

DATE OF DECISION:
03/24/2005

BEFORE: Higgins S - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for relief against forfeiture - Claim for the doing of work or provision of services

MATTER FOR DECISION: Preliminary matter

LEGISLATION CITED: Conveyancing Act 1919
Retail Leases Act 1994

CASES CITED: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
Union Trustee of Australia Ltd v Baker (1948) 65 WN (NSW) 247
Zorbas v McNamara [1960] NSWLR 428 and [1962] NSWLR 53

REPRESENTATION: FIRST APPLICANT
F Hicks, counsel
SECOND APPLICANT
A Monzo, counsel
FIRST RESPONDENT
A Monzo, counsel
SECOND RESPONDENT
F Hicks, counsel

ORDERS: The Tribunal declares:; 1.The proper construction of cl.1(e) of the Deed is that the lease was assigned to Mrs Jafari on 26 November 2004 when Mrs Jafari made the payments set out in cl.1(b) and (c) of the Deed and Lituma Pty Ltd consented to that assignment at the same time; 2.The proper construction of cl.4 of the Deed is that Mrs Jafari agreed to surrender the lease in the event she failed to make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm.; 3.Lituma’s right of re-entry into the premises after the assignment of the lease for breach of cl.1(d)(i) of the Deed was subject to s.129 of the Conveyancing Act 1919; 4.The matter be stood over for further directions on 7 April 2005 at 11a.m.

1 Mrs Jafari and Lituma Pty Ltd (“Lituma”) have both filed applications in respect of premises at 331 Penshurst Street, Willoughby (“the premises”), which are owned by Lituma. The dispute between the parties arises from a Deed of Release that was entered into on 26 November 2004 by Mrs Jafari, Lituma and a third party Sayed Mohammad Ali and Khalili-Zohi and Shahin-Mahdavi Nader (“Zohi and Nader”), as joint tenants. A threshold issue in respect of that dispute relates to the proper construction of the terms of that Deed, in particular cl.1(d), which relates to the assignment of the lease in respect of the premises and cl.4, which refers to the “surrender” of the lease. As determination of this threshold issue was likely to determine the matter, with the consent of the parties the Tribunal agreed to hear and determine these issues of construction as a preliminary issue.

Background facts

2 It is firstly necessary to set out the background to the dispute.

3 Zohi and Nader had entered into a registered lease with Lituma, on 9 December 2002, in respect of the premises. Zohi and Nader conducted a Darya/Persian and Australian supermarket business from the premises. The lease was for a period…

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: [2005] NSWADT 64
Decision Date: 03/24/2005

CaseChat Overview and Summary

In Jafari v Lituma Pty Ltd, the parties were Mrs Jafari, the tenant, and Lituma Pty Ltd, the landlord. The dispute arose from the interpretation of the terms of a lease deed and the rights of re-entry into the leased premises. The case was heard by the Tribunal. The primary legal issues that the Tribunal needed to resolve involved the interpretation of certain clauses in the lease deed, specifically clauses 1(e), 4, and 1(d)(i). The central question was whether the lease had been properly assigned to Mrs Jafari on 26 November 2004 and if Lituma Pty Ltd's right to re-enter the premises was subject to any statutory constraints.

The Tribunal found that clause 1(e) of the Deed indicated that the lease was assigned to Mrs Jafari on the specified date when she made the necessary payments and Lituma Pty Ltd consented to that assignment. Clause 4 was interpreted as stipulating that Mrs Jafari had agreed to surrender the lease if she failed to make the required payments by the stipulated time. Furthermore, the Tribunal determined that Lituma Pty Ltd's right of re-entry was subject to the provisions of section 129 of the Conveyancing Act 1919. The Tribunal concluded that the matter required further directions and was stood over until 7 April 2005.

Orders

Orders of the court

The Tribunal declares:; 1.The proper construction of cl.1(e) of the Deed is that the lease was assigned to Mrs Jafari on 26 November 2004 when Mrs Jafari made the payments set out in cl.1(b) and (c) of the Deed and Lituma Pty Ltd consented to that assignment at the same time; 2.The proper construction of cl.4 of the Deed is that Mrs Jafari agreed to surrender the lease in the event she failed to make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm.; 3.Lituma’s right of re-entry into the premises after the assignment of the lease for breach of cl.1(d)(i) of the Deed was subject to s.129 of the Conveyancing Act 1919; 4.The matter be stood over for further directions on 7 April 2005 at 11a.m.

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:	Jafari v Lituma Pty Ltd [2005] NSWADT 64
DIVISION:	Retail Leases Division
PARTIES:	FIRST APPLICANT Zahra Jafari FIRST RESPONDENT Lituma Pty Ltd SECOND APPLICANT Lituma Pty Ltd SECOND RESPONDENT Zahra Jafari
FILE NUMBER:	055016, 055024
HEARING DATES:	14/03/2005
SUBMISSIONS CLOSED:	03/14/2005
DATE OF DECISION:	03/24/2005
BEFORE:	Higgins S - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease - Claim for relief against forfeiture - Claim for the doing of work or provision of services
MATTER FOR DECISION:	Preliminary matter
LEGISLATION CITED:	Conveyancing Act 1919 Retail Leases Act 1994
CASES CITED:	Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 Union Trustee of Australia Ltd v Baker (1948) 65 WN (NSW) 247 Zorbas v McNamara [1960] NSWLR 428 and [1962] NSWLR 53
REPRESENTATION:	FIRST APPLICANT F Hicks, counsel SECOND APPLICANT A Monzo, counsel FIRST RESPONDENT A Monzo, counsel SECOND RESPONDENT F Hicks, counsel
ORDERS:	The Tribunal declares:; 1.The proper construction of cl.1(e) of the Deed is that the lease was assigned to Mrs Jafari on 26 November 2004 when Mrs Jafari made the payments set out in cl.1(b) and (c) of the Deed and Lituma Pty Ltd consented to that assignment at the same time; 2.The proper construction of cl.4 of the Deed is that Mrs Jafari agreed to surrender the lease in the event she failed to make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm.; 3.Lituma’s right of re-entry into the premises after the assignment of the lease for breach of cl.1(d)(i) of the Deed was subject to s.129 of the Conveyancing Act 1919; 4.The matter be stood over for further directions on 7 April 2005 at 11a.m.