Nirina P/L v Tynte P/L, Hardy & Registrar-General No. Scciv-02-1111 - [2003] SASC 8

NIRINA PTY LTD v TYNTE PTY LTD, HARDY & THE REGISTRAR-GENERAL
[2003] SASC 8
Civil

MULLIGHAN J The plaintiff is the proprietor of the business known as Café Paesano which is located at premises at 100 O’Connell Street, North Adelaide. The defendant Tynte Pty Ltd (“Tynte”) is the registered proprietor of the land at that address being the whole of the land comprised in Certificates of Title Register Book Volume 5496 Folio 125 and Register Book Volume 5311 Folio 188 together with the improvements thereon which consist of a building of two stories. I shall refer to the land and improvements as the “ground floor premises” and to the first floor part of the land and improvements as the “the upstairs premises”.
By memorandum of lease executed on 30 August 1992 the plaintiff became the lessee of the ground floor premises for a period of five years commencing on 1 July 1992 and expiring on 30 June 1997. This lease was registered and was extended for a period of five years commencing on 1 July 1997 and expiring at midnight on 30 June 2002 on the same terms and conditions as the initial lease with a right of renewal for five years commencing on 1 July 2002 and a further right of renewal commencing on 1 July 2007. I shall refer to this lease as extended on 1 July 2002 as the “ground floor lease”.
On 16 July 1999 the plaintiff became the lessee of the upstairs premises. That lease was to expire on 31 January 2002 and also contained rights of renewal. I shall refer to this lease as “the upstairs lease”. The business known as Café Paesano is conducted at both the ground floor premises and the upstairs premises.
Tynte sold the land and improvements to the second defendant Ms Hardy. The contract for sale and purchase is dated 5 July 2002, was varied on 11 July 2002 and again on 15 July 2002.
The plaintiff claims that both leases had been renewed before the premises were sold or, alternatively, with respect to the upstairs premises, that there was a new lease. Ms Hardy disputes those claims. She lodged a caveat to prevent the registration of the lease documents and claims that there has been no such extension of the leases or a new lease for the upstairs premises prior to her acquisition of the property and that she is entitled to possession.
The plaintiff lodged caveats to protect its claimed leasehold interests pending registration of the lease documents and brought this action on 8 August 2002 seeking orders that Ms Hardy’s caveats be removed and that the Registrar-General cancel her caveats and enter lease documents on the respective Certificates of Title. The Registrar-General is a defendant in this action but played no part in the trial having intimated that he would abide the judgment and orders of the Court.
The action came to trial as a matter of urgency and I gave judgment for the plaintiff and…

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

AGLC: Nirina P/L v Tynte P/L, Hardy & Registrar-General No. Scciv-02-1111 [2003] SASC 8
Case: [2003] SASC 8
Decision Date: 20 January 2003

CaseChat Overview and Summary

Nirina Pty Ltd sought to enforce the renewal of two leases, one for the ground floor premises and another for the upstairs premises, against Tynte Pty Ltd and the Registrar-General. The plaintiff claimed that both leases had been renewed before the premises were sold to Ms Hardy, or, alternatively, that there was a new lease for the upstairs premises. Ms Hardy disputed these claims and lodged a caveat to prevent the registration of the lease documents. The plaintiff lodged caveats to protect its claimed leasehold interests pending registration of the lease documents and brought this action seeking orders that Ms Hardy's caveats be removed and that the Registrar-General cancel her caveats and enter lease documents on the respective Certificates of Title. The court found that the plaintiff had a legal interest as lessee in the ground floor premises and the upstairs premises which existed prior to, and continued until and beyond Ms Hardy obtained her equitable interest. The court held that a right of renewal is an integral and indivisible incident of the registered interests as lessee and are therefore clothed in the character of the registered interests and are therefore legal interests. The court rejected Ms Hardy's submission that the plaintiff’s interest in the premises arises from the lease documents executed on 10 July 2002 after Ms Hardy obtained her equitable interest. The court held that the plaintiff was entitled to have Ms Hardy’s caveat removed to enable registration of the lease documents. The court ordered that Ms Hardy's caveats be removed and that the Registrar-General cancel her caveats and enter lease documents on the respective Certificates of Title. The court intimated that it would hear the parties upon any application for costs after the reasons for judgment had been considered by the parties.

Orders