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:
EquityFILE 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, s55ACASES 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 691DECISION: Lessee entitled to be reinstated.
_ 27 October 2000
IN THE SUPREME COURT
OF NEW SOUTH WALES
IN EQUITYSANTOW J
No. 4011/00
MI Design Pty Limited
PlaintiffDunecar 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-ClaimantDunecar Pty Limited (ACN 083 651 781)
First Cross-Defendant
MI Design Pty Limited
Second Cross-Defendant
Sean Patrick O’Connell
Third Cross-Defendant
JUDGMENT1 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…
Table of ContentsPage
INTRODUCTION
OVERVIEW OF FACTS AND CONTENTIONS
AGREED FACTS
LEGAL QUESTIONSMI DESIGN
OVERALL CONCLUSION AND ORDERS
Question 1Conclusion
Statutory NoticeConclusion
Question 2
Summing up in relation to the lessor’s re-entry
Question 3
THE BANK
Question 4Conclusion
Question 5
Question 6
introduction
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
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2000] NSWSC 996
- Decision Date
CaseChat Overview and Summary
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
Orders of the court
Full text does not contain this section.
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.