About Us

We work collaboratively with our clients to build strong, sustainable relationships. Our team is committed to delivering consistent high standards of service, and we understand the importance of accessibility. Working with us, you'll enjoy open communication, meaning well scoped, properly resourced and effectively managed matters.

Learn More

Latest Case

Providing strategic advice on expansion structures November 16, 2018

Founded in Bondi Beach in 2012, Bailey Nelson has rapidly grown into a global eyewear retailer and service provider with boutiques in Australia, London, Canada and New Zealand. The strong demand for their products and … Continued

Latest News

Maddocks advises two leading edge tech companies on their capital raisings July 8, 2019

Monday 8 July 2019 Maddocks has advised global video technology company Atomos Limited on the sale of over $27 million worth of shares released from escrow and its raise of an additional $7.5 million by … Continued

Latest Article

Unsocial media – how third party comments on your public Facebook page can get your company in trouble July 18, 2019

Media companies, and operators of public Facebook pages generally, should exercise great care and diligence to vet, monitor, and control comments published on their public Facebook pages, as they may be liable as a primary … Continued

How (not) to terminate a lease

A recent Supreme Court of New South Wales decision, Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2) [2012] NSWSC 517, highlights that a notice of termination of lease must be carefully drafted. In this case the notice was held to be unenforceable. The tenant remained in the premises for a further term and the landlord was responsible for part of the costs of the litigation.

Background

An essential term of the lease was that the tenant maintain certain insurances and provide evidence of this to the landlord. The tenant failed to comply with this term, and the landlord served the tenant with a notice demanding that this default be remedied.

Around four weeks later, the landlord’s managing agent served the tenant with a document headed ‘notice to vacate’. The notice stated that the agent was ‘instructed’ to terminate the lease for non-payment of rent, but did not specify the date on which the lease would terminate.

The tenant filed a claim for relief against forfeiture and exercised its option to renew. Lengthy proceedings followed. 

The Decision

The court held that the notice to vacate was not legally enforceable because it did not unequivocally communicate to the tenant that the lessor was treating the lease as at an end.

The court noted that this intention would have been communicated if the notice:

  • clearly stated that the lease was terminated;
  • specified from when the termination was to take effect; and
  • demanded repossession of the premises.

Because the lease had not been validly terminated, the tenant was granted relief against forfeiture, and a declaration that it had validly exercised the option to renew. The court subsequently assessed costs on an 'issue by issue' basis and held that the landlord was liable for a portion of the tenant's legal costs.

How does it affect you?

Landlords who make the commercial decision to terminate a lease due to tenant default must ensure that the notice of termination complies strictly with the terms of the lease and unequivocally states that the lease is at an end and the date from which termination takes effect. Landlords should also obtain legal advice at each stage of the default and lease termination process.

Tenants who are served with a notice of termination should seek legal advice to determine whether the notice is enforceable at law and also whether a claim for relief against forfeiture may reasonably be commenced.

If you would like any further information, or if we can be of any assistance regarding any of the above issues, please contact us.

Bronwyn Badcock | Partner
Tel: 61 2 8223 4122
bronwyn.badcock@maddocks.com.au

Lisa Chung | Partner
Tel: 61 2 8223 4142
lisa.chung@maddocks.com.au

A recent Supreme Court of New South Wales decision, Dee-Tech Pty Ltd v Neddam Holdings Pty Ltd (No 2) [2012] NSWSC 517, highlights that a notice of termination of lease must be carefully drafted. In this case the notice was held to be unenforceable. The tenant remained in the premises for a further term and the landlord was responsible for part of the costs of the litigation.

Background

An essential term of the lease was that the tenant maintain certain insurances and provide evidence of this to the landlord. The tenant failed to comply with this term, and the landlord served the tenant with a notice demanding that this default be remedied.

Around four weeks later, the landlord’s managing agent served the tenant with a document headed ‘notice to vacate’. The notice stated that the agent was ‘instructed’ to terminate the lease for non-payment of rent, but did not specify the date on which the lease would terminate.

The tenant filed a claim for relief against forfeiture and exercised its option to renew. Lengthy proceedings followed. 

The Decision

The court held that the notice to vacate was not legally enforceable because it did not unequivocally communicate to the tenant that the lessor was treating the lease as at an end.

The court noted that this intention would have been communicated if the notice:

  • clearly stated that the lease was terminated;
  • specified from when the termination was to take effect; and
  • demanded repossession of the premises.

Because the lease had not been validly terminated, the tenant was granted relief against forfeiture, and a declaration that it had validly exercised the option to renew. The court subsequently assessed costs on an 'issue by issue' basis and held that the landlord was liable for a portion of the tenant's legal costs.

How does it affect you?

Landlords who make the commercial decision to terminate a lease due to tenant default must ensure that the notice of termination complies strictly with the terms of the lease and unequivocally states that the lease is at an end and the date from which termination takes effect. Landlords should also obtain legal advice at each stage of the default and lease termination process.

Tenants who are served with a notice of termination should seek legal advice to determine whether the notice is enforceable at law and also whether a claim for relief against forfeiture may reasonably be commenced.

If you would like any further information, or if we can be of any assistance regarding any of the above issues, please contact us.

Bronwyn Badcock | Partner
Tel: 61 2 8223 4122
bronwyn.badcock@maddocks.com.au

Lisa Chung | Partner
Tel: 61 2 8223 4142
lisa.chung@maddocks.com.au