Makary v Hamdan; Hamdan v Makary - [2019] NSWSC 460

Supreme Court

New South Wales

Medium Neutral Citation: Makary v Hamdan; Hamdan v Makary [2019] NSWSC 460
Hearing dates: 8 – 9 April 2019
Date of orders: 26 April 2019
Decision date: 26 April 2019
Jurisdiction: Equity
Before: Darke J
Decision:
Judgment for possession entered against the defendant in favour of the plaintiff.

Catchwords:
ESTOPPEL – equitable estoppel – proprietary estoppel – company associated with the defendant held a five year lease with an option to renew for a further five years over a property owned by the plaintiff – defendant carried out renovation works on the property – whether plaintiff had assured the defendant that a further five year lease with a five year option would be granted if renovation works to the property were undertaken – assurance held not to have been made – estoppel claim dismissed
LAND LAW – leases – claim by landlord for possession of property – defendant continued to occupy property following the termination of a lease –defendant continued to pay rent to the plaintiff whilst negotiations for a new lease were on foot – plaintiff commenced proceedings for possession of property – whether defendant occupied property under a tenancy at will or a periodic tenancy – defendant held to occupy property under tenancy at will – tenancy terminated by commencement of proceedings – judgment for possession entered against the defendant
Cases Cited: Doueihi v Construction Technologies Australia Pty Ltd (2016) 92 NSWLR 247; [2016] NSWCA 105
Javad v Aqil [1991] 1 WLR 1007
Category: Principal judgment
Parties: Colin Makary (First Plaintiff/Cross Defendant)
Makary Investments Pty Ltd (Second Plaintiff)
Bilal Hamdan (Defendant/First Cross Claimant)
Gas Point Guildford Pty Ltd (Second Cross Claimant)
Representation:
Counsel:
Mr P Wallis (Plaintiffs/Cross Defendant)
Mr M Davis (Defendant/Cross Claimants)
Solicitors:
Eden York Lawyers (Plaintiffs/Cross Defendant)
Masri Lawyers (Defendant/Cross Claimants)

File Number(s): 2018/64580; 2018/17272
Publication restriction: None

Judgment

Introduction

This consolidated proceeding concerns a service station site in Fairfield Road, Guildford West. The service station is part of the parcel of land contained in Auto Consol 7814-55. The first plaintiff, Mr Colin Makary, is the registered proprietor of the land. Mr Makary, or alternatively the second plaintiff Makary Investments Pty Ltd, seek orders for possession of the service station against the defendant, Mr Bilal Hamdan. Mr Hamdan and a company associated with him, namely Gas Point Guildford Pty Ltd, bring their own claim in which it is alleged that Mr Makary is bound by an estoppel that precludes him from denying the existence of an equitable lease of the service station for a term of 5 years with an option for a further 5 year term. An order for specific performance is sought to compel the grant of a lease accordingly.
The claim for possession is relatively straightforward. In summary, it is alleged that:

Mr Makary granted a lease of the premises in favour of Makary Investments Pty Ltd for a term ending on 1 January 2016;

Makary Investments Pty Ltd granted a sublease of the premises to Gas…

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: [2019] NSWSC 460
Decision Date: 26 April 2019

CaseChat Overview and Summary

In this case, Makary v Hamdan; Hamdan v Makary, the primary dispute involved the ownership and occupancy of a property leased by a company associated with the defendant. The plaintiff sought to regain possession of the property after the lease had expired and the defendant continued to occupy the premises. The central issue before the court was whether the plaintiff had made assurances to the defendant that a new lease would be granted if the defendant undertook renovation works on the property, and if such assurances could be enforced through equitable or proprietary estoppel. Additionally, the court had to determine the nature of the defendant's continued occupancy of the property following the termination of the original lease and whether the defendant occupied the property under a tenancy at will or a periodic tenancy.

The court examined the evidence and found that the plaintiff did not make any assurances regarding the granting of a new lease contingent upon the renovation works. Therefore, the court held that the defendant's claim for equitable or proprietary estoppel was not valid. Regarding the nature of the defendant's occupancy, the court concluded that the defendant occupied the property under a tenancy at will, which was terminated by the plaintiff's initiation of proceedings for possession. Consequently, the court entered a judgment for possession against the defendant, permitting the plaintiff to regain control of the property.

The court's decision was based on a thorough analysis of the evidence presented and the applicable legal principles. The findings regarding the estoppel claim were grounded in the lack of any clear and unequivocal assurances made by the plaintiff. The determination of the nature of the defendant's occupancy and the termination of the tenancy at will were informed by the circumstances surrounding the defendant's continued occupation of the property and the ongoing negotiations for a new lease. The final orders of the court included a judgment for possession in favour of the plaintiff, allowing them to retake possession of the property from the defendant.

Orders