NSW Caselaw
New South Wales Court of Appeal
CITATION: JB (Northbridge) Pty Ltd v St George Bank Ltd [2010] NSWCA 249
HEARING DATE(S): 20 September 2010
JUDGMENT DATE: 1 October 2010
JUDGMENT OF: Giles JA at 1; Handley AJA at 44; Sackville AJA at 45
DECISION: Appeal dismissed with costs.
CATCHWORDS: TENANCY - construction of agreement - whether lessee disentitled from exercising option to renew - exercise conditioned on observance and performance of covenants and agreements in lease - whether deemed default by reason of litigation was a failure to observe and perform - lessee not thereby disentitled from renewing - whether lessee breached covenant not to assign or procure any assignment or transfer - whether assignment in equity breached covenant not to assign - whether phrase "procure any assignment or transfer" includes equitable assignment - equitable assignment not a breach - in any event breach could not be relied on because notice under s133E Conveyancing Act not responsive to the exercise of the option.
CATEGORY: Principal judgment
Della Imports Pty Ltd v Birkenhead Investments Pty Ltd (1987) NSW Conv R 55-358; East End Dwellings Co Ltd v Finsbury Borough Council (1952) AC 109; Gaskell v Gosling (1896) 1 QB 669; Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122; Gough's Garages Pty Ltd v Pugsley (1930) 1 KB 615; Mercantile Credits Ltd v Atkins (1985) 1 NSLWR 670; CASES CITED: Neeta (Epping) Pty Ltd v Phillips (1974) 131 CLR 286; Ryledar Pty Ltd v Euphoric Pty Ltd [2007] NSWCA 65; (2007) 69 NSWLR 603; Shevill v Builders Licensing Board (1982) 149 CLR 620; Trans Realties Pty Ltd v Grbac (1975) 1 NSWLR 170; Visboard v Federal Commissioner of Taxation (1943) 68 CLR 354; Wynsix Hotels (Oxford Street) Pty Ltd v Toomey [2004] NSWSC 236; re Yates, National Mutual Life Association v Catco Developments Pty Ltd (1989) 88 ALR 583.
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