Leasing and Property Newsletter – May 2018
Published on May 14, 2018 by Matthew Rafferty and Paul Carroll
INTRODUCTION
In this edition our team report on the following topics:
- A misleading and deceptive conduct case about a tenants request for exclusivity;
- A landlord purported to have agreed to an assignment is restrained from terminating the lease; and
- What happens when the lease does not include an address?
The Carroll & O’Dea Leasing and Property Team
A recent NSW case dealt with a tenants claim that the landlord made representations which were misleading and deceptive when dealing with a tenants request for exclusivity. The landlord represented that the tenant would be the only independent fresh fruit and vegetable shop in the Fresh Food Precinct and as such should pay higher rent. Later in the negotiations, the landlord knew that Franklins (in the Fresh Food Precinct) were going to expand its offering to include fresh fruit and vegetables.
The tenant’s claim failed. The Court found that Franklins was not “independent” and in any event the landlord’s representation was not about the future. However, it is another reminder about how difficult it is to win misleading and deceptive conduct cases.
Gillian Kirwan, Lawyer
Paul Carroll, Partner
Liquidation and assignment
This Victorian case involved a restaurant in Cowen on Phillip Island. The five year lease expired on 31 March 2017, but contained 3 five year options to renew.
On 7 August 2017, the lessee was placed into voluntary administration, and then a few weeks later, went into liquidation. Just before all that, one of the directors of the lessee incorporated a new company. That new company entered into negotiations with the liquidator to buy the business and become the tenant.
The liquidator of the lessee agreed to sell the business to that new company. The new company claimed that the landlord agreed to consent to the assignment of lease provided the arrears were paid. On that basis the new company paid the arrears, but soon after, the landlord made attempts to end the lease. The new lessee sought an injunction from the Tribunal to prevent the landlord from terminating the lease.
What happens when the lease does not include an address?
There are some weird and wonderful things in the Conveyancing Act 1919 (NSW) – what is interesse termini and why is it abolished? What was in sections nine and ten of the Imperial Act Four Anne, and why are they repealed? These old sections seem to be repairs to old conveyancing laws and help support the system we have today. One of my favourite sections is 170: “Service of Notices”. A notice can be valid even if the person affected by the notice is unborn.
The Services of Notices section needed to be carefully read in a recent case because the lease did not contain an address for the Landlord. The question was: did the tenant validly exercise the option.
