Mirvac Funds Management Ltd v Value Lodging Pty Ltd [2022] NSWSC 787

Supreme Court New South Wales

Medium Neutral Citation: Mirvac Funds Management Ltd v Value Lodging Pty Ltd [2022] NSWSC 787 Hearing dates: 9 June 2022 Date of orders: 16 June 2022 Decision date: 16 June 2022 Jurisdiction: Equity Before: Darke J Decision: Notices of termination held to be valid and effective. Plaintiffs held to be entitled to vacant possession by the end of 1 July 2022, subject to payment of Termination Fees in accordance with leases or sub-leases. Catchwords: LAND LAW – leases and subleases – interpretation of leases and subleases – where one condition of termination of leases and subleases by lessor is service of notice of termination requiring vacant possession 3 Months from the date of service – where lessor served notices of termination on 30 March 2022 requiring vacant possession no later than 30 June 2022 – where lessee alleges that notices should not have required vacant possession before 1 July 2022 and that notices are accordingly invalid – "Month" defined in leases and subleases as a named month – 3 Months from date of service held to include April, May and June 2022 – notices held to have erroneously called for vacant possession by 30 June 2022 – notices nonetheless held to be valid and effective as notices would make it clear to a reasonable recipient that lessor was seeking vacant possession only in accordance with identified provisions of leases and subleases WORDS AND PHRASES – "Month" – "Named Month" – "Calendar Month" Legislation Cited: Conveyancing Act 1919 (NSW), s 181(1)(d) Interpretation Act 1987 (NSW), s 21 Cases Cited: Alexakis v Wan (2021) 20 BPR 41,243; [2021] NSWSC 367 Aura Enterprises Pty Ltd v Frontline Retail Pty Ltd (2006) 202 FLR 435; [2006] NSWSC 902 Australian Broadcasting Commission v Australasian Performing Right Association Ltd (1973) 129 CLR 99 Dodds v Walker [1981] 1 WLR 1027 Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017) 261 CLR 544; [2017] HCA 12 Electricity Generation Corporation v Woodside Energy Ltd (2014) 251 CLR 640; [2014] HCA 7 Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] AC 749 Masters in Building Training Pty Ltd v State of New South Wales [2022] NSWSC 499 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104; [2015] HCA 37 Southern Han Breakfast Point Pty Ltd (in liq) v Lewence Construction Pty Ltd (2016) 260 CLR 340; [2016] HCA 52 Category: Principal judgment Parties: Mirvac Funds Management Ltd as trustee of the Tucker Box Hotel Trust (First Plaintiff) The Trust Company Ltd (Second Plaintiff) Value Lodging Pty Ltd (First Defendant) Toga Hotel Management Holdings Pty Ltd (Second Defendant) Representation: Counsel: Mr I M Jackman SC with Ms L Rich (Plaintiffs) Mr R A Dick SC with Ms B A Ng (Defendants)