Australian International Academy of Education Limited v Dr Nirmal Taluja & Ors [2011] NSWSC 647

Supreme Court New South Wales

Medium Neutral Citation: Australian International Academy of Education Limited v Dr Nirmal Taluja & Ors [2011] NSWSC 647 Hearing dates: 20 to 23 June 2011 Decision date: 06 July 2011 Before: Ball J Decision: 1. Declare that on 18 March 2003, the first and second defendants entered into an agreement for lease whereby the first defendant agreed to grant and the second defendant agreed to take a lease of premises comprising the land in Folio Identifier 100/774567 together with the land comprised in Folio Identifier 4/773523, excluding the building known as Vickery Chapel standing upon that land in the location depicted in the plan at attachment "A" to the amended statement of claim, containing the terms recorded in the memorandum of lease executed by the first and second defendants, with a term commencing on 15 July 2003 and expiring on 14 July 2028. 2. Declare that, by deed of assignment dated 27 July 2007, the second defendant assigned to the plaintiff the benefit of the agreement to lease, and its equitable interest in the land the subject of the agreement to lease. 3. Declare that by operation of cl 16.3.4 of the memorandum of lease, the first defendant is taken to have consented to that assignment. 4. Order that the agreement be specifically performed under the control and direction of the court; 5. Reserve to each party liberty to apply for directions to give effect to order 4. 6. Dismiss the amended crossclaim. Catchwords: CONTRACT - termination - abandonment - school operated on leased premises - whether transfer of school to plaintiff prior to assignment of lease was abandonment of lease - no abandonment. CONTRACT - termination - affirmation - allegations of breaches for number of years - continued to accept rent and exercise rights under contract - affirmed lease. ENVIRONMENTAL AND PLANNING - development control - consent - subdivision - lease of part of land for over 5 years requires development consent - s 76(A) and s4B of Environmental Planning and Assessment Act (EPA) 1979 - whether lease excluding building or part of building effects subdivision of land - definition of "land" for purpose of EPA - lease effects subdivision. STATUTORY INTERPRETATION - principles - whether Act renders agreement void - s 76A(1) of EPA - agreements made in breach of s76A(1) not void. CONTRACT - implied terms - agreement to do all things reasonable to give effect to agreement - term requiring lessor to do all things reasonable to obtain development consent to be implied Legislation Cited: Conveyancing Act 1919 (NSW) Duties Act 1997 (NSW) Environmental Planning and Assessment Act 1979 (NSW) Local Government Act 1919 (NSW) Real Property Act 1900 (NSW) Strathfield Planning Scheme Ordinance Cases Cited: Australian National Car Parks Pty Ltd v State Rail Authority of NSW [2005] NSWSC 120 Bawofi Pty Ltd v Comrealty Ltd (1992) NSW ConvR 55-646 Butts v O'Dwyer (1952) 87 CLR 267 HA Rencoule (Joiners & Shopfitters) Ltd v Hunt [1967] 2 ITR 475 Hardy v Wardy [2001] NSWSC 180 Kenmir Pty Ltd v Frizzell [1968] 1 All ER 414 Lam Kee Ying Sdn Bhd v Lam Shes Tong [1975] AC 247 Leitz Leeholme Stud Pty Ltd v Robinson [1977] 2 NSWLR 544 Perman v Wenholt-Dwyer [2004] NSWSC 48 Re Lehrer [1961] SR (NSW) 365 Sargent v ASL Developments Pty Ltd (1974) 131 CLR 634 Yango Pastoral Co Pty Ltd V First Chicago Australia Ltd (1978) 139 CLR 410 Category: Principal judgment Parties: Australian International Academy of Education Limited (Plaintiff) Dr Nirmal Taluja (First Defendant) Noor Al Houda Islamic College Pty Limited (Second Defendant) Shree Shirdi Sai Sansthan Sydney Limited (Third Defendant) Representation: D H Murr SC (Plaintiff) J L Doyle (Plaintiff) D K L Raphael (First Defendant) J E O'Sullivan (First Defendant) Ms S Ihram (Director, Noor Al Houda Islamic College Pty Limited) (Second Defendant) No Appearance (Third Defendant) Hunt & Hunt (Plaintiff) Penhall & Co Lawyers (First Defendant) Ms S Ihram (Director, Noor Al Houda Islamic College Pty Limited) (Second Defendant) No Appearance (Third Defendant) File Number(s): 2010/298143