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Nguyen v Valore

Nguyen v Valore

Case [2018] NSWSC 1364 6 September 2018

Termination of Tenancy

Breach of Contract

Relief Against Forfeiture

Property Law

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Supreme Court

New South Wales

Medium Neutral Citation: Nguyen v Valore [2018] NSWSC 1364
Hearing dates: 21 and 22 August 2018
Decision date: 06 September 2018
Before: Ball J
Decision:
See paragraphs 62 to 70 of this judgment.

Catchwords: LANDLORD AND TENANT – Termination of the tenancy – Validity of notices issued pursuant to s 129 of the Conveyancing Act 1919 (NSW) – Failure to cite s 129 of the Conveyancing Act 1919 (NSW) as source of obligation to issue notice – Failure to identify breaches with sufficient particularity
LANDLORD AND TENANT – Renewals and options – Exercise of option – Whether the plaintiff was in breach of the lease when he exercised the option to renew – Whether the Court should grant relief against forfeiture – Power to impose conditions on the granting of relief
Legislation Cited: Conveyancing Act 1919 (NSW)
Cases Cited: Allsvelte Pty Ltd v Cassegrain Wines Pty Limited [2015] NSWSC 1370; (2015) 18 BPR 35,637
Best and Less (Leasing) Pty Ltd v Darin Nominees Pty Ltd (1994) 6 BPR 13,783
Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd [2012] NSWSC 251; (2013) 16 BPR 31,089
Eastern Telegraph Co Ltd v Dent [1899] 1 QB 835
Et Petroleum Holdings Pty Ltd v Clarenden Pty Ltd [2005] NSWSC 435
Johnson v Senes & Berger [1961] NSWR 566; (1961) 78 WN (NSW) 861
McMahon v Docker (1945) 62 WN (NSW) 155
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268
Monas v Perpetual Trustees Victoria Limited [2011] NSWCA 417
Texts Cited: Building Code of Australia
Category: Principal judgment
Parties: Ken Patrick Nguyen (Plaintiff)
Frank Valore (First Defendant)
Angela Valore (Second Defendant)
Representation:
Counsel:
S Sykes (Plaintiff)
H Altan with P Tiliakos (Defendants)
Solicitors:
Vo Lawyers (Plaintiff)
State Law Group (Defendants)

File Number(s): 2017/315352
Publication restriction: None

Judgment

Introduction

By a summons filed on 18 October 2017, the plaintiff, Mr Ken Nguyen, seeks declarations that he is not in breach of a number of provisions of a lease dated 20 January 2015 (the Lease) between him as lessee and the defendants, Mr Frank Valore and Mrs Angela Valore as lessors, of commercial premises known as Shop 2, 111 John Street, Cabramatta (the Premises). Mr Nguyen also seeks relief under s 133F of the Conveyancing Act 1919 (NSW) permitting him to exercise an option to renew the Lease for a further period of three years notwithstanding the alleged breaches.

Background

Mr and Mrs Valore own approximately 15 residential and commercial properties in various suburbs in New South Wales including Shops 1 and 2 at 111 John Street, Cabramatta, which were acquired by them to earn rental income. They also own a chain of liquor stores, one of which is next to 111 John Street, Cabramatta.
Since about 2000, approximately 12 of the properties owned by Mr and Mrs Valore have been managed by their daughter, Ms Loredana Trajkovski, who is responsible for dealing on their…

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.

Continue reading Nguyen v Valore

Details

AGLC: Nguyen v Valore [2018] NSWSC 1364
Case: [2018] NSWSC 1364
Decision Date: 06 September 2018

CaseChat Overview and Summary

The plaintiff, Nguyen, brought an action against Valore, the defendant, seeking relief from a forfeiture of his lease and a declaration that his exercise of an option to renew was valid. The dispute arose out of a commercial lease agreement between the parties, where the plaintiff exercised an option to renew the lease. The defendant contended that the plaintiff was in breach of the lease by failing to issue a notice in accordance with section 129 of the Conveyancing Act 1919 (NSW), and therefore, the exercise of the renewal option was invalid. The case was heard in the Supreme Court of New South Wales.

The central legal issues that the Court had to determine were whether the plaintiff was required to issue a notice under section 129 of the Conveyancing Act 1919 (NSW) and if so, whether the notice was valid. Another issue was whether the plaintiff had breached the lease when he exercised the option to renew. The Court also needed to decide if it should grant relief against forfeiture and, if so, whether it should impose any conditions on the granting of relief.

The Court held that the plaintiff was not required to issue a notice under section 129 of the Conveyancing Act 1919 (NSW) as the lease did not contain a term that required the plaintiff to do so. Even if the plaintiff was required to issue such a notice, the Court found that the notice provided was invalid as it did not cite the source of the obligation to issue the notice and did not identify the breaches with sufficient particularity. The Court also found that the plaintiff had not breached the lease when he exercised the option to renew, as the notice issued by the defendant was invalid. Finally, the Court granted relief against forfeiture without imposing any conditions.

In light of the above, the Court declared that the plaintiff's exercise of the option to renew the lease was valid and ordered that relief against forfeiture be granted. The Court also ordered that the defendant pay the plaintiff's costs of the proceeding.

Orders