Wiran Aboriginal Corporation v Indigenous Land Corporation
[2007] NSWSC 950
•31 May 2007
CITATION: Wiran Aboriginal Corporation v Indigenous Land Corporation [2007] NSWSC 950 HEARING DATE(S): 31 May 2007 JURISDICTION: Equity Division
Duty ListJUDGMENT OF: Brereton J EX TEMPORE JUDGMENT DATE: 31 May 2007 DECISION: Notice fails to comply with s 129; defendant to pay plaintiff’s costs CATCHWORDS: LANDLORD & TENANT – lease – termination – notice – Conveyancing Act s 129 – sufficiency of informal notice LEGISLATION CITED: (NSW) Conveyancing Act 1919, s 129; Sch 6 CASES CITED: Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454
Johnson v Senes [1961] NSWR 566PARTIES: Wiran Aboriginal Corporation (plaintiff)
Indigenous Land Corporation (defendant)FILE NUMBER(S): SC 2308/07 COUNSEL: Mr D P Robinson SC w Ms A M Seward (plaintiff)
Mr T M Lynch (defendant)SOLICITORS: Holding Redlich (plaintiff)
Ebsworth & Ebsworth Lawyers (defendant)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY LIST
BRERETON J
Thursday, 31 May 2007
2308/07 Wiran Aboriginal Corporation v Indigenous Land Corporation
JUDGMENT (ex tempore)
1 HIS HONOUR: By summons filed on 17 April the plaintiff Wiran Aboriginal Corporation claimed a declaration that a purported Notice of Termination dated 13 April 2007, issued by the defendant Indigenous Land Corporation (ILC), was ineffective to terminate a lease dated 19 April 2005, between ILC and Wiran of a property in southern New South Wales, known as Menera. Wiran obtained interim relief restraining ILC from acting on the Notice. It was envisaged that there would be an interlocutory hearing today, but shortly after 10am counsel for ILC announced that ILC had “withdrawn” the Notice, in circumstances where its principal concern – namely, that there had not been an acquittal of certain funds – had been remedied and, in any event, a further notice under (NSW) Conveyancing Act 1919, s 129, had been served about which the complaints at the heart of these proceedings could probably not be made.
2 The basis of Wiran’s claim was that no notice under s 129 had been given prior to the purported notice of termination. It is not in doubt that a valid and effective s 129 notice is, in the circumstances, a precondition to any entitlement of ILC to terminate.
3 ILC relies on a letter dated 29 January 2007. That letter is in the following terms:
As those breaches have not been rectified, the ILC is close to taking action, including terminating your Head Lease over Menera.On the 23rd October 2006, the Indigenous Land Corporation (ILC) sent the Wiran Aboriginal Corporation (WAC) a letter specifying a number of breaches of Contracts between the two parties, clearly specifying actions to rectify these breaches and timelines in which to do this. If these breaches and timelines were not met, the ILC would consider moving towards termination of the Head Lease and WAC as the identified Title Holding Body.
- The breaches identified in the letter of 23rd October 2006 were as follows:
- 1. Head Lease between the ILC and WAC – reporting requirements of the three year Work Plan were not completed, including:
- a. Financial statements prepared in accordance with the Aboriginal Councils and Associations Act 1976 and provided to the ILC are overdue from the 30 September 2005 and 30 September 2006
b. Copies of THB Insurances noting ILC as an interested party are overdue for 2005 and 2006;
c. Corporate compliance of the THB constitution of ORAC Act – the THB must provide copies of reports to the ILC including certificate of compliance, copy of auditors report, AGM reports;
2. Contract No 1315 Grant of Monies – Recurrent Funding – the Contract expired on the 31st March 2006. None of the WAC reporting requirements have been completed to date and the funds have been acquitted. WAC is in breach of numerous clauses in the Contract such as Item 4 of the Schedule and clause 15.1(a);
4. Office of Registrar of Aboriginal Corporations (ORAC) – a review of the ORAC register on the 26th October 2005 indicated that the name of the Public Officer had not been provided.3. Contract No 1314 Grant of Monies – Capital Works – the contract expired on 31st March 2006 and no works have been undertaken or funds spent by WAC. WAC is in breach of Item 4 of the Schedule and clause 15.1(a);
The ILC must receive the information specified in Attachment 1 by The 15th March 2007, being of a standard to rectify the specified breaches of the Contracts. If this information is not received in its entirety by that date, the ILC will undertake the following actions:
In addition to the actions listed in the previous letter, the outstanding water bills to the ILC for the irrigation licences and usage have not been paid. Under the Head Lease, WAC is responsible for reimbursing the ILC for the payments. These bills must be reimbursed to the ILC within the specified timeframe below.
1. Head Lease – Terminate pursuant to clauses 14.1 (a), (e), (f) & (g);
2. Contract 1315 – Take action pursuant to recover all funds not properly acquitted;
3. Contract 1314 – Not renew the Contract which has expired and not pay any funds committed thereunder;
4. Take action to recover any of the moneys owed to the ILC; and
5. ORAC – notify ORAC of breaching condition and suggest ORAC consider taking any appropriate action under the Commonwealth Aboriginal Councils and Associations Act 1976.
4 It will be noted that the first paragraph summarises the effect of earlier correspondence. The second paragraph refers to ILC as being “close to taking action”, although the penultimate paragraph indicates that “ILC will undertake the following actions”, including terminating the lease. The final paragraph describes it as “the final letter of warning” for Wiran. The letter did not refer to Conveyancing Act, s 129, and it does not contain the note which forms part of the prescribed form contained in Conveyancing Act, Sch 6, which is referred to in s 129(9).
5 In Ex parte Dally-Watkins; Re Wilson (1955) 72 WN (NSW) 454, the Full Court held that it was not essential that a notice explicitly refer to s 129, nor that it explicitly contain the note referred to in Sch 6, and that in order to comply with Sch 6, a Notice need not strictly follow the form of Sch 6; as Street CJ said (at 456):
- Sch 6 provides a form, but it is not the only form, and the vital thing is to bring to the attention of the tenant the term of the lease alleged to have been broken and the manner in which it has been broken.
6 Nonetheless, in that case the informal notice that was held sufficient made clear that unless the tenant took certain action within a specified time, the landlord’s solicitor would issue a notice to quit and summons for ejectment.
7 Subsequently, in Johnson v Senes [1961] NSWR 566, Wallace J, as he then was, emphasised that the note referred to in the Sixth Schedule was part of the form, and that an important function of a notice under the section was, in addition to imposing restrictions on termination, providing for relief against forfeiture and re-entry “placing the lessee in an informed position so as to enable him to elect what shall be his subsequent conduct”.
8 To my mind, as Wallace J thought in Johnson, the note is a very important part of the prescribed form, for the reason that it is the note that draws to the attention of the tenant the existence, upon expiry of the relevant time, of a legal entitlement to re-enter or forfeit, and the statutory authority for it. It may be, as Ex parte Dally-Watkins would suggest, that there are cases in which the circumstances are otherwise sufficiently clear that such explicit reference is not required, but reading the letter of 29 January 2007 as a whole, I do not think that a lawyer, let alone a layperson, would conclude that that letter satisfied the requirements of s 129 and removed the statutory bar on forfeiture imposed by s 129 in the absence of such a notice. As I read through the papers, looking for a s 129 notice, it did not occur to me that this letter was that notice. The present letter is at least ambiguous – referring, as I have said, to ILC being “close to taking action” and describing itself as a “final letter of warning” – though also indicating that ILC would, amongst other things, terminate pursuant to certain clauses of the lease, but containing no mention at all of s 129.
9 Additional difficulties are that the Notice is apparently incomplete on its face – requiring reference back to a letter of 23 October 2006 to understand the breaches and time lines, and in referring to breaches of contract number 1315 (which are the breaches ultimately relied on in the purported Notice of Termination) it refers to “breach of numerous clauses in the contract such as item 4 of the Schedule and clause 15.1(a)”, which is, in my view, less than giving notice of the breach (and requiring a remedy of that breach).
10 Accordingly, in my opinion, the letter of 29 January 2007 did not comply with the requirements of Conveyancing Act, s 129. It follows that the defendant ILC was not entitled to give notice of termination as it purported to do on 13 April 2007, and that that notice was ineffective.
11 I make declaration 1 in the Summons. I order that the defendant pay the plaintiff’s costs.
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