ALCUNE PTY LTD v TRI-ANTA PTY LTD [1994] NSWCA 3

ALCUNE PTY LTD v TRI-ANTA PTY LTD

SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

MAHONEY AP, MEAGHER and POWELL JJA

3 March 1994, 10 August 1994

[1994] NSWCA 3

Building Control and Town Planning — subdivision of land — what constitutes — lease provides for lessee quitting and delivering up possession after notice from lessor

— notice given — whether "subdivision" requiring council approval — Local Government Act 1919 s4 "subdivision", "subdivide".

Landlord and Tenant — possession recovery ejectment — forfeiture by denial of lessor's title — in what circumstances — waiver by acceptance of rent.

In 1982, PTC, then the owner of certain land at Double Bay, which land had a frontage to B Street, and abutted G Lane at the rear, granted to A a lease for 50 years from Ist March 1981 "subject to termination as provided in C136". That clause provided for the lessee, on being given 6 months prior notice in writing, to quit and to deliver up to the lessor a strip of land, about 6 feet in depth, and the width of the subject land, abutting on G Lane — that strip of land was, at the date of the grant of the lease, the subject of a road widening proposal which had been adopted by the local Council.

After entry upon the land, A demolished an old building which had been erected on it and erected a new building which occupied the whole of the subject land except for the strip of land at the rear.

In mid-1991, PTC transferred the subject land to T, after which time a series if disputes - mainly as to financial matters - arose between T and A.

In late 1992, A, having negotiated a sub-lease to B, which wished to use the premises for the conduct of a restaurant, delivered to M, who was engaged by B to fit out the restaurant, a letter, addressed to the Town Clerk which read, in part "As proprietors of the above property we hereby authorise (M) to lodge building and development applications in respect of the above property...".