MI Design Pty Ltd v Dunecar Pty Ltd - [2000] NSWSC 996

Reported Decision: (2000) 35 ACSR 551
(2001) NSW ConvR 55-969

New South Wales

Supreme Court

CITATION: MI Design P/L v Dunecar P/L & 1 Ors [2000] NSWSC 996

CURRENT JURISDICTION:
Equity

FILE NUMBER(S): SC 4011/00

HEARING DATE(S): 22/09/00, 25/09/00, 26/09/00, 05/10/00, 06/10/00, 10/10/00

JUDGMENT DATE: 27 October 2000

PARTIES :

MI Design Pty Limited (Plaintiff/Second Cross-Defendant)
Dunecar Pty Limited (ACN 083 651 781) (First Defendant/First Cross-Defendant)
Commonwealth Bank of Australia (ACN 123 123 124) (Second Defendant/Cross-Claimant)
Sean Patrick O'Connell (Third Cross-Defendant)

JUDGMENT OF: Santow J

COUNSEL : M Pesman (Plaintiff/Second Cross-Defendant)
L J Aitken (First Defendant/First Cross-Defendant)
F Kunc (Second Defendant/Cross-Claimant)

SOLICITORS: Ian D Elvy & Associates (Plaintiff/Second Cross-Defendant)
Colbron & Associates (First Defendant/First Cross-Defendant)
L E Taylor (Second Defendant/Cross-Claimant)

CATCHWORDS: REAL PROPERTY — Mortgages — Lessee ousted without the notice required under lease, contract with bank and s129 of Conveyancing Act — Consequences — Relevance of breaches of Liquor Act — Relief against forfeiture — Specific performance of agreement between lessor and bank — Discretionary aspects — Damages not adequate remedy — Lessee insolvent — Would reinstatement involve a futility.

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s127; s129
Corporations Law Pt 5.3A
Gaming and Betting Act 1912
Law and Property Act 1925, s86
Liquor Act 1898
Liquor Act 1982, s67(1); s68; s69; s101; s143A
Real Property Act 1925, s55A

CASES CITED: Chaka Holdings Pty Ltd v Sunsim Pty Ltd (SCNSW, Young J, 3 September 1987, unreported)
Chan v Cresdon Pty Limited (1989) 168 CLR 242
Coghlan v Peel (1906) 6 SRNSW 560
Commonwealth Development Bank of Australia v Eagle Hotels Pty Limited (1990) NSW ConvR 55-506
Hayes v Gumbola Pty Limited (1988) NSW ConvR 55-375
Montague v Pooley [1951] StRQd 291
Pioneer Quarries (Sydney) Pty Ltd v Permanent Trustee Co of NSW Ltd (1970) BPR 9562
Shiloh Spinners Limited v Harding (1973) AC 691

DECISION: Lessee entitled to be reinstated.

_
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITY

SANTOW J
No. 4011/00

MI Design Pty Limited
Plaintiff
Dunecar Pty Limited (ACN 083 651 781)
First Defendant
Commonwealth Bank of Australia (ACN 123 123 124)
Second Defendant

Commonwealth Bank of Australia (ACN 123 123 124)
Cross-Claimant
Dunecar Pty Limited (ACN 083 651 781)
First Cross-Defendant
MI Design Pty Limited
Second Cross-Defendant
Sean Patrick O’Connell
Third Cross-Defendant

JUDGMENT
27 October 2000

Table of Contents
Page

INTRODUCTION
OVERVIEW OF FACTS AND CONTENTIONS
AGREED FACTS
LEGAL QUESTIONS
MI DESIGN
Question 1
Conclusion
Statutory Notice
Conclusion
Summing up in relation to the lessor’s re-entry
Question 2
Question 3
THE BANK
Question 4
Conclusion
Question 5
Question 6
OVERALL CONCLUSION AND ORDERS

introduction

1 This is a challenge to the purported re-entry by a lessor without notice to the lessee or the lessee’s bank. In the alternative relief against forfeiture is sought. It occurred in circumstances where the lessee, now insolvent, was in breach of the lease, and where the lessee’s bank claims entitlement to notice under a separate agreement with the lessor. What follows is a broad overview of facts…

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.

Keep reading for free

Create a free CaseChat account to read MI Design Pty Ltd v Dunecar Pty Ltd and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2000] NSWSC 996
Decision Date: 27 October 2000

CaseChat Overview and Summary

MI Design Pty Ltd was involved in a legal dispute with Dunecar Pty Ltd, which centred around the termination of a lease and subsequent mortgage arrangements. The matter was heard in the Supreme Court of New South Wales. The primary issue was whether MI Design could seek specific performance of an agreement between Dunecar and a bank, given that MI Design had been evicted from the property without the required notice, in breach of the lease, the contract with the bank, and section 129 of the Conveyancing Act.

The court examined whether the breaches of the Liquor Act were pertinent to the relief against forfeiture and the request for specific performance. The central legal question was whether MI Design was entitled to specific performance of the agreement between Dunecar and the bank. The court also considered the discretionary aspects of the application, including whether damages would be an adequate remedy and whether reinstating MI Design would involve a futility given their insolvency.

The court ruled in favour of MI Design, determining that specific performance was appropriate as damages would not adequately remedy the situation. The court found that the breaches of the Liquor Act were not directly relevant to the relief against forfeiture or the request for specific performance. The court exercised its discretion, concluding that reinstating MI Design would not be a futile exercise. Consequently, MI Design was granted specific performance of the agreement between Dunecar and the bank.

Orders