Leask v Molina

[1999] NSWCA 14

CITATION:	LEASK v MOLINA [1999] NSWCA 14 revised - 17/02/99
FILE NUMBER(S):	CA 40095/98
HEARING DATE(S):	1 February; 1999
JUDGMENT DATE:	1 February 1999
PARTIES :	STEPHEN A LEASK MARIO MOLINA & 2 ORS
JUDGMENT OF:	Mason P at 1; Handley JA at 37; Giles JA at 38

LOWER COURT JURISDICTION:	Supreme Court - Equity Division
LOWER COURT FILE NUMBER(S) :
LOWER COURT JUDICIAL OFFICER:	Santow J

COUNSEL:	A Radojev (Appellant) M Thangaraj (First Respondent) Notices of appearance handed up (Second Respondent)
SOLICITORS:	G Shelton & Associates (Appellant) M Thangaraj (First Respondent) Brophy Bridge & Mirow (Second Respondent) McPhee Kelshaw (Third Respondent)
CATCHWORDS:
DECISION:	Dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA 40095/98

MASON P
HANDLEY JA
GILES J

Monday 1 February 1999

STEPHEN A LEASK (aka STEVE LEASK)
v MARIO MOLINA AND GLORIA MOLINA & Ors

JUDGMENT

1 MASON P: This appeal relates to Units 5B and 5C at a shopping mall known as the Henry Lawson Centre at Penrith.
2 In November 1992 the lessor was GIO Life Ltd (“GIO Life”) and the lessees by assignment were the first respondents Mr and Mrs Molina. The leases were for 10 year terms expiring in November 1997. They were registered under the Real Property Act. Each lease prohibited assignment without consent, such consent not to be unreasonably withheld. Mr and Mrs Molina conducted a cane furniture business at the shop units.
3 Prior to August 1992 they commenced negotiations with Mr Leask for the purchase of the business. A purchase price of $15,000 was agreed. On 21 October 1992 a sale agreement was exchanged. Clause 12 provided in effect that the agreement was conditional upon the transfer of the existing leases. Clause 12 B addressed that situation and relevantly said:
If the transfer of the existing lease is so stipulated:
(a) completion of this agreement is conditional upon the lessor and any mortgagee of the leased premises consenting to the transfer of the lease of the premises from the vendors to the purchasers. The purchasers shall pay the costs of and incidental to such consents and shall transfer the lease to the purchasers upon completion. Should such consents to such transfer of the lease not be given, the purchasers may by notice in writing to the vendors rescind this agreement ….”

4 The second sentence I have read may seem a little strange. The printed form was amended. The intent is very clear however, namely, that the purchasers should pay the costs and the vendors will transfer the lease.
5 Initially it had been intended that the purchaser of the business would be Steve Leask Investments Pty. Limited, presumably a company under the control of the appellant. However, by the time of the exchange of the contracts the purchaser was the appellant personally.
6 Settlement occurred on 26 November 1992. Mr and Mrs Molina paid out GIO Life Limited the then arrears of rent which totalled about $25,000. Mr Leask paid the agreed purchase price subject…