Maharaja’s Palace Pty Ltd v Raj & Jai Construction Pty Ltd [2018] NSWSC 1269

Supreme Court New South Wales

Medium Neutral Citation: Maharaja's Palace Pty Ltd v Raj & Jai Construction Pty Ltd [2018] NSWSC 1269 Hearing dates: 6-7 August 2018 Date of orders: 16 August 2018 Decision date: 16 August 2018 Jurisdiction: Equity Before: Darke J Decision: Statement of Claim is dismissed with costs. Catchwords: LAND LAW – leases – agreement for lease – whether oral agreement concluded – no agreement established – not necessary to consider whether acts of part performance give rise to enforceable right to grant of lease Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A Category: Principal judgment Parties: Maharaja's Palace Pty Ltd (First Plaintiff) B&B Group Pty Ltd (Second Plaintiff) Satinder Pal Singh Benepal (Third Plaintiff) Raj & Jai Construction Pty Ltd (Defendant) Representation: Counsel: Mr A E Maroya (Plaintiffs) Mr G Farland (Defendant)

Solicitors: Hedges Bhatty Solicitors (Plaintiffs) HWL Ebsworth Lawyers (Defendant) File Number(s): 2018/201326 Publication restriction: None

Judgment

Introduction 1. In these proceedings a declaration is sought that a binding agreement for lease was made between Maharaja's Palace Pty Ltd (the first plaintiff), or alternatively Mr Satinder Benepal (the third plaintiff), and Raj & Jai Construction Pty Ltd (the defendant), which ought be specifically performed. 2. The agreement is alleged to concern a number of shops on two levels of a building in Douglas Road, Quakers Hill owned by the defendant. It is alleged that the agreement was concluded in the course of a conversation held in about mid-2014 between Mr Benepal and, representing the defendant, Mr Bhart Bhushan. The existence of the agreement is alleged to be evidenced by various acts of part performance. 3. In brief, it is contended that agreement was reached for a lease of shops 2, 3, 4, 5A, 5B, 6, 7, 8, 12 and 18 for a five year term commencing on 1 June 2015 (with two options to renew for further terms of three years each) at a rental of $198,000 per annum (including GST). 4. The defendant denies the existence of the alleged agreement. Even though the defendant did not specifically plead reliance on s 54A of the Conveyancing Act 1919 (NSW) (or s 23C of that Act), it was accepted that in circumstances where allegations of acts of part performance were contained in the Statement of Claim and denied in the Defence it was open to the defendant to rely upon a lack of writing. 5. The central issues for determination were thus: 1. whether a binding agreement for lease was concluded as alleged; and 2. if so, whether by reason of the operation of the law relating to part performance the agreement gives rise to an enforceable right to the grant of the lease.