Jafari v Lituma Pty Ltd [2005] NSWADT 64

CITATION: Jafari v Lituma Pty Ltd [2005] NSWADT 64 DIVISION: Retail Leases Division FIRST APPLICANT Zahra Jafari FIRST RESPONDENT PARTIES: Lituma Pty Ltd SECOND APPLICANT Lituma Pty Ltd SECOND RESPONDENT Zahra Jafari FILE NUMBER: 055016, 055024 HEARING DATES: 14/03/2005 SUBMISSIONS CLOSED: 03/14/2005 DATE OF DECISION: 03/24/2005

BEFORE: Higgins S - Judicial Member APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease - Claim for relief against forfeiture - Claim for the doing of work or provision of services MATTER FOR DECISION: Preliminary matter LEGISLATION CITED : Conveyancing Act 1919 Retail Leases Act 1994 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 CASES CITED: Union Trustee of Australia Ltd v Baker (1948) 65 WN (NSW) 247 Zorbas v McNamara [1960] NSWLR 428 and [1962] NSWLR 53 FIRST APPLICANT F Hicks, counsel SECOND APPLICANT REPRESENTATION: A Monzo, counsel FIRST RESPONDENT A Monzo, counsel SECOND RESPONDENT F Hicks, counsel ORDERS: The Tribunal declares:; 1.The proper construction of cl.1(e) of the Deed is that the lease was assigned to Mrs Jafari on 26 November 2004 when Mrs Jafari made the payments set out in cl.1(b) and (c) of the Deed and Lituma Pty Ltd consented to that assignment at the same time; 2.The proper construction of cl.4 of the Deed is that Mrs Jafari agreed to surrender the lease in the event she failed to make the payments set out in cl.1(b) and (c) of the Deed on 26 November 2004 at 2pm.; 3.Lituma's right of re-entry into the premises after the assignment of the lease for breach of cl.1(d)(i) of the Deed was subject to s.129 of the Conveyancing Act 1919; 4.The matter be stood over for further directions on 7 April 2005 at 11a.m.