Dee-Tech Pty Ltd & Anor v Neddam Holdings Pty Limited

[2010] NSWCA 374

NSW Court of Appeal

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Interrogate

Catchwords

1. Landlord and Tenant
2. › Termination of lease
3. › Termination for breach of essential term
4. › Whether landlord communicated unequivocal election to terminate
5. › Whether letter from agent constituted notice of termination
6. › Conveyancing Act 1919 (NSW), s 129
1. Landlord and Tenant
2. › Option to renew
3. › Validity of exercise of option
4. › Whether lease subsisting at time of exercise
5. › Whether prior lease terminated by landlord
1. Contract
2. › Termination
3. › Election to terminate for breach
4. › Requirement of unequivocal communication
5. › Application of general contractual principles to leases
1. Practice and Procedure
2. › Costs
3. › Neither party identified correct issue at trial
4. › Appropriate costs orders where appellant succeeded on point not taken at trial

Quick Take

A letter from a landlord's agent stating that the agent has been 'instructed to terminate' a lease and that the tenant has been 'requested to vacate' does not constitute an unequivocal communication that the landlord is treating the lease as at an end. To validly terminate a lease for breach of an essential term, the landlord must serve a notice that unequivocally states the lease is terminated, not merely that steps towards termination are being taken. A s 129 Conveyancing Act notice, while a prerequisite to termination, does not itself terminate the lease — a separate unequivocal act of termination is required.