Wiran Aboriginal Corporation v Indigenous Land Corporation [2007] NSWSC 950

New South Wales Supreme Court

CITATION : Wiran Aboriginal Corporation v Indigenous Land Corporation [2007] NSWSC 950

HEARING DATE(S) : 31 May 2007 JURISDICTION : Equity Division Duty List

JUDGMENT 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 566

PARTIES : 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that there would be an interlocutory hearing today, but shortly after 10am counsel for ILC announced that ILC had "withdrawn" the Notice, in circumstances where its principal concern – namely, that there had not been an acquittal of certain funds – had been remedied and, in any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: 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.