| JURISDICTION | : | SUPREME COURT OF WESTERN AUSTRALIA IN CIVIL |
| CITATION | : | POURZAND -v- TELSTRA CORPORATION LTD [2012] WASC 210 |
| CORAM | : EDELMAN J | ||
| HEARD |
| ||
| DELIVERED |
| ||
| FILE NO/S |
| ||
| BETWEEN | : HOSSEAN POURZAND |
JENNY MARIA POURZAND
Plaintiffs
AND
TELSTRA CORPORATION LTD
Defendant
Catchwords:
Real property - Leases - Landlords effect major works to demised premises taking at least five months while tenant is seeking to sublease the premises - Sublease impossible while major works continuing - Major works undertaken by landlords without the knowledge or consent of the tenant - Whether major works amount to renunciation of the lease entitling the tenant to terminate - Whether major works amount to a serious breach of an intermediate term entitling tenant to terminate
Real property - Leases - 'Make good' obligation - Whether tenant's make good obligation operates before the expiry of the lease term when the lease is terminated for breach or renunciation by the landlords - Failure of landlords to comply with precondition of notice to the tenant - Conduct of landlords in removing ceilings entirely depriving tenant of opportunity to repair ceilings
[2012] WASC 210
Damages - Availability of substantial damages for alleged breach of a repair covenant in the absence of financial loss - Difference between obligation to perform or to provide a substitute for performance, and obligation to compensate for consequential losses
Legislation:
Conveyancing Act 1919-1939 (NSW), s 133A
Law of Property Act 1925 (UK)
Result:
Plaintiffs' claims dismissed
Category: B
Representation:
Counsel:
| Plaintiffs | : | Mr P G McGowan & Mr P J Hannan |
| Defendant | : | Mr S M Davies SC & Mr H H Jackson |
Solicitors:
| Plaintiffs | : | Lewis Blyth & Hooper |
| Defendant | : | Lavan Legal |
Case(s) referred to in judgment(s):
Alfred McAlpine Construction Ltd v Panatown Ltd [2001] 1 AC 518
Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15;
Anstruther-Gough-Calthorpe v McOscar [1924] 1 KB 716
Apriaden Pty Ltd v Seacrest Pty Ltd [2005] VSCA 139; (2005) 12 VR 319
Attorney-General of Botswana v Aussie Diamond Products Pty Ltd [No 3]
Aussie Traveller Pty Ltd v Marklea Pty Ltd [1998] 1 Qd R 1
Baier v Heinemann [1962] Qd R 192
Bellgrove v Eldridge (1954) 90 CLR 613
Buchanan v Byrnes [1906] HCA 21; (1906) 3 CLR 704
[2012] WASC 210
Byrnes v Jokona Pty Ltd [2002] FCA 41
Byrnes v Kendle [2011] HCA 26; (2011) 243 CLR 253
CMA Recycling Victoria Pty Ltd v Doubt Free Investments Pty Ltd [2011]
TASSC 71
Decro-Wall International SA v Practitioners in Marketing Ltd [1971] 1 WLR
361; [1971] 2 All ER 216
Graham v The Markets Hotel Pty Ltd [1943] HCA 8; (1943) 67 CLR 567
Graystone Property Investments Ltd v Margulies (1983) 47 P & CR 472
Halliday v Nevill (1984) 155 CLR 1
Hawkesbury Nominees Pty Ltd v Battik Pty Ltd [2000] FCA 185
Inderwick v…
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- Case
- [2012] WASC 210
- Decision Date
CaseChat Overview and Summary
The primary legal issues for the court to decide were whether the major works constituted a renunciation of the lease or a serious breach of an intermediate term, and whether Pourzand's 'make good' obligation operated before the expiry of the lease term if the lease was terminated for breach or renunciation by Telstra. The court also had to consider whether Pourzand was entitled to substantial damages for the alleged breach of a repair covenant in the absence of financial loss.
The court held that the major works did not amount to a renunciation of the lease, as Telstra had not demonstrated an intention to bring the lease to an end. However, the court found that the major works did amount to a serious breach of an intermediate term, entitling Pourzand to terminate the lease. The court also found that Pourzand's 'make good' obligation did not operate before the expiry of the lease term when the lease was terminated for breach or renunciation by Telstra. The court held that Telstra had failed to comply with a precondition of notice to Pourzand, and that their conduct in removing ceilings entirely deprived Pourzand of the opportunity to repair them. Finally, the court held that substantial damages were not available to Pourzand for the alleged breach of a repair covenant in the absence of financial loss, as the obligation was to perform or to provide a substitute for performance, not to compensate for consequential losses.
The court ordered Telstra to pay Pourzand compensation for the serious breach of an intermediate term, and to compensate Pourzand for the removal of the ceilings. The court declined to award substantial damages for the alleged breach of a repair covenant.
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