Court of Appeal
Supreme Court
New South Wales
Medium Neutral Citation: Papantoniou v Stonewall Hotel Pty Ltd [2018] NSWCA 85 Hearing dates: 16 April 2018 Decision date: 27 April 2018 Before: Beazley P at [1];
Ward JA at [2];
Barrett AJA at [3]Decision: 1 Order nunc pro tunc with respect to the notice of appeal herein that, instead of service on John Papantoniou, the following step be taken for bringing the document to the notice of the said John Papantoniou, namely, depositing a sealed copy thereof by Michael Guest into the letterbox of the residential premises identified in the affidavit of Michael Guest sworn on 10 April 2018 and filed herein.
2 Appeal dismissed
3. Order that the appellants pay the costs of all respondents.Catchwords: PROCEDURE – implied “Harman” undertaking – release from – special circumstances – whether special circumstances existed – where documents of no real probative value – whether decision to exclude documents at first instance was unreasonable or plainly unjust
LEASES AND TENANCIES - renewals and options - exercise of option – whether option was validly exercised – whether lease provision referring to modes of service in s 170 of the Conveyancing Act 1919 (NSW) is facultative or mandatory - where neither the lessors’ address nor their whereabouts were discoverable from the lease or a variation document executed before the lease – whether general law of landlord and tenant permits service of notices on agent – where lease provision for service as provided for in s 170 is facultative only – where the notice was served on the solicitor for the lessorLegislation Cited: Conveyancing Act 1919 (NSW)
Real Property Act 1900 (NSW)Cases Cited: Comdox (No 24) Pty Ltd v Robins [2009] NSWSC 367
Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd [2017] HCA 12; (2017) 91 ALJR 486
Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7; (2014) 251 CLR 640
Frieze v Unger [1960] VR 230
Galinski v McHugh (1988) 57 P&CR 359
Gerlach v Clifton Bricks Pty Ltd (2002) 209 CLR 478; [2002] HCA 22
Harman v Secretary of State for Home Department [1983] 1 AC 280
Hearne v Street (2008) 235 CLR 125; [2008] HCA 36
Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549
House v The King (1936) 55 CLR 499; [1936] HCA 40
James G Oberg (Sales) Pty Ltd v Oberg [2012] FCA 722; (2012) 292 ALR 673
Jones v Dunkel (1959) 101 CLR 298; [1959] HCA 8
Liberty Funding Pty Ltd v Phoenix Capital Ltd [2005] FCAFC 3; (2005) 218 ALR 283
Mineaplenty Pty Ltd v Trek 31 Pty Ltd [2006] NSWSC 1203
Naidu v Yenula Properties Ltd [2002] EWCA Civ 719; [2003] L&TR 9
Nguyen v Taylor (1992) 27 NSWLR 48
Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451; [2004] HCA 35
Phoenix Assurance Co Ltd v Berechree (1906) 3 CLR 946; [1906] HCA 6
Pianta v National Finance &…
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- Case
- [2018] NSWCA 85
- Decision Date
CaseChat Overview and Summary
The court was required to determine two principal legal issues. Firstly, whether a lease provision referring to the modes of service prescribed by section 170 of the *Conveyancing Act 1919* (NSW) was mandatory or facultative. Secondly, the court had to consider whether the general law of landlord and tenant permitted service of notices on an agent, particularly where the lessors' address or whereabouts were not discoverable from the lease or a related variation document.
The Court of Appeal held that the lease provision referring to section 170 of the *Conveyancing Act 1919* (NSW) was facultative, not mandatory. Consequently, service of the notice of renewal on the solicitor for the lessor was considered valid, even though the lessors' whereabouts were not readily ascertainable. The court reasoned that the general law permits service on an agent in such circumstances. The court also considered an application to release the appellants from an implied "Harman" undertaking, but found no special circumstances to warrant such a release, particularly as the documents in question were of no real probative value.
The appeal was dismissed, and the appellants were ordered to pay the costs of all respondents. An order was also made *nunc pro tunc* regarding the service of the notice of appeal.
Orders
Orders of the court
1 Order nunc pro tunc with respect to the notice of appeal herein that, instead of service on John Papantoniou, the following step be taken for bringing the document to the notice of the said John Papantoniou, namely, depositing a sealed copy thereof by Michael Guest into the letterbox of the residential premises identified in the affidavit of Michael Guest sworn on 10 April 2018 and filed herein.
2 Appeal dismissed
3. Order that the appellants pay the costs of all respondents.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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