Nichols Global Enterprises Pty Ltd v Biviano - [2000] NSWSC 956

CITATION: Nichols Global Enterprises Pty Ltd v Biviano [2000] NSWSC 956

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 5251/99

HEARING DATE(S): 22/08/2000

JUDGMENT DATE: 22 August 2000

PARTIES :

Nichols Global Enterprises Pty Ltd (P)
Angela Biviano (D1)
Guiseppe Biviano (D2)

JUDGMENT OF: Young J

COUNSEL : C Harris (P)
E Frizell (D)

SOLICITORS: Rhodes Associates (P)
Nicholas Vasta & Co (D)

CATCHWORDS: EQUITY [413]- Remedies- Specific performance- Damages in addition to specific performance- Damages may be assessed for breach of covenant for quiet enjoyment whilst lessee in possession pending hearing of suit WORDS & PHRASES- "Promptly".

CASES CITED: Blackburn Developments No 19 Pty Ltd v Downs Surgical (Aust) Pty Ltd (1974) 2 BPR 9141
Brewer v Lepman 106 SW 1107 (Kansas CA) (1908)
Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1 BPR 9251
Heckenberg v Delaforce [2000] NSWCA 137
Metropolitan Land Co v Manning 71 SW 696 (Kansas CA)(1903)
Milchas Investments Pty Ltd v Larkin (1989) NSW Conv R 55-487
B Seppelt & Son Ltd v The Commissioner for Main Roads (1975) 1 BPR 9147
Steelman v Curtiss 36 SW (2d) 312 (Texas Civil Appeals) (1931)
Summit Properties Pty Ltd v Comserv (No 784) Pty Ltd (1981) NSW Conv R 55-027
Wright v Carter (1923) 23 SR (NSW) 555

DECISION: See para 54

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG J
TUESDAY 22 AUGUST 2000
5251/99 - NICHOLS GLOBAL ENTERPRISES PTY LIMITED v BIVIANO
JUDGMENT
1    HIS HONOUR: The plaintiff is the lessee under registered lease 689523 of the premises at 122-128 Pyrmont Bridge Road, Camperdown. The defendants are the lessors. The lease was for four years commencing on 16 August 1993 and terminating on 15 August 1997 with two options to renew, each for four years, under cl 22 of the lease.
2    Clause 22.1 was to the effect that upon three months’ notice prior to the expiration of the first lease, on certain conditions the lessee was entitled to exercise the option to renew.
3    Clause 22.2 provided that the rent under the new lease should be as agreed, and in default of agreement the amount of the rent under the renewed lease “shall at the instance of either the lessor or the lessee be referred promptly for the decision of a qualified valuer”, to be nominated by the President of the NSW Division of the Australian Institute of Valuers (the “President”).
4    The plaintiff says that it exercised the option but there was no agreement as to rent. It further says that it approached the President for appointment of a valuer to determine the amount of the rent and the President appointed Mr John Burdekin to perform that task.
5    However, the defendants have declined to co-operate with Mr Burdekin so that he has been unable to conduct his valuation.
6    In these circumstances the plaintiff brings the present proceedings seeking:

(a) a declaration that it has exercised its option;

(b) a declaration that Mr Burdekin was validly appointed…

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 Nichols Global Enterprises Pty Ltd v Biviano

Details

AGLC: Nichols Global Enterprises Pty Ltd v Biviano [2000] NSWSC 956
Case: [2000] NSWSC 956
Decision Date: 22 August 2000

CaseChat Overview and Summary

In the case of Nichols Global Enterprises Pty Ltd v Biviano, the plaintiff, a property developer, sought an order for specific performance of a lease agreement against the defendant, who had entered into a lease for a property in Sydney. The dispute arose when the defendant refused to vacate the property despite the lease agreement's end date, claiming that the property developer had breached the covenant for quiet enjoyment. The matter was heard in the Supreme Court of New South Wales. The court was required to determine whether damages could be awarded in addition to specific performance, and if so, whether the plaintiff could claim for breach of the covenant for quiet enjoyment while the defendant remained in possession of the property pending the hearing of the suit.

The court considered the legal principles surrounding specific performance and the covenant for quiet enjoyment. It noted that specific performance is an equitable remedy, and while it is a discretionary remedy, the court may also award damages in addition to specific performance. The court found that the defendant's refusal to vacate the property was a breach of the covenant for quiet enjoyment, and that the plaintiff was entitled to damages for that breach. The court held that the term "promptly" in the lease agreement did not limit the plaintiff's right to claim damages for the breach of the covenant for quiet enjoyment.

The court ordered that specific performance be granted, and that the defendant vacate the property within 14 days. The court also ordered that the defendant pay damages to the plaintiff for the breach of the covenant for quiet enjoyment. The court found that the defendant's refusal to vacate the property had caused the plaintiff to suffer a loss of income and reputation, and awarded damages accordingly. The court noted that the award of damages was not intended to compensate the plaintiff for the delay in obtaining specific performance, but rather for the breach of the covenant for quiet enjoyment itself.

Orders