Taluja v Australian International Academy of Education Ltd

v Dr Nirmal Taluja & Ors (No 2) [2011] NSWSC 880 Before: Ball J File Number(s): SC 2010/298143

Judgment 1BEAZLEY JA: I agree with Young JA. 2MACFARLAN JA: I agree with Young JA. 3YOUNG JA: This is an appeal from a decision of Ball J who made an order for specific performance of an agreement for lease made on 15 July 2003. 4I should first set out the basic background facts, most of which are uncontested. The appellant is the registered proprietor of land at Strathfield which apparently was once used by the Methodist Church as a bible college when it was called Leigh College. The land consists of two lots, Lot 100/774567 which includes two principal buildings known as Leigh Hall and Vickery Chapel and Lot 4/773523 on which is erected another building known as Brundah Hall. 5Brundah Hall is a double storey 9 room colonial style building with an attached single storey building known as the Annex and one detached single storey building known as the Summer House. 6From the time that the appellant purchased the property, she, together with her husband and two children, resided in Brundah Hall, principally on the second level. In addition, she used rooms 15, 16 and 17 of Leigh Hall as a medical centre. Those rooms had a separate entrance and could be shut off from the rest of the building. 7Since about 1999, Vickery Chapel has been used by Shree Shirdi Sai Sanstan Sydney Ltd as a place for prayer and community activities for the Sydney Hindu community. Without disrespect I will refer to this group as "the Hindu community". 8The Hindu community has never taken an active role in these proceedings and the Court has been told that amicable arrangements have been made between it and the other parties for the continued use of Vickery Chapel. 9Prior to January 2003, Noor Al Houda Islamic College Pty Ltd ("the Noor Al Houda proprietary company") (the second respondent), operated an Islamic school at Condell Park. The school needed new premises. The school's principal was Mrs Silma Ihram. Her husband approached the appellant about obtaining accommodation at the Strathfield premises. 10In due course and on 18 March 2003, an agreement for lease was entered into between the relevant parties for a lease for 25 years commencing on 15 July 2003 with one five year option at a rent of $20,000 per month. I will need to deal with this document in more detail later. 11The school moved into the property and has spent some $300,000 on renovations. In these reasons I will use the word "school" to cover the operator of the school for the time being. It would appear that its operators have continually paid rent from the commencement of the lease to the present time. 12Disputes arose between the parties and the appellant proffered the view that the grant of the lease was illegal and void because there was an illegal subdivision brought about by the grant of the lease and that, in any event, the so-called lease was void for uncertainty or the lessee had abandoned it. There were other grounds of objection to which I will come shortly. 13On 22 October 2010, the first respondent commenced proceedings by statement of claim in the Equity Division of this Court for specific performance of the agreement for lease. The matter was heard by Ball J on 20 to 23 June 2011, and his Honour gave a decision on 6 July 20011 [2011] NSWSC 647, granting the plaintiff conditional relief. 14The appellant appeals against that decision. She names as respondents to the appeal the corporation which is currently carrying on the school (the Australian International Academy of Education Pty Ltd ("AIAE")), the Noor Al Houda proprietary company and Mrs Silma Ihram. Mrs Silma Ihram appeared both as a director of the second respondent and on her own behalf, but she protested that she should not be here on her own behalf because she was never a party to the proceedings. The Court agreed with this and ordered that the appeal against her be dismissed with costs. It then proceeded against the other two respondents. 15The appeal was heard on 22 November 2011, Mr D K Raphael and Mr T Flaherty of counsel appearing for the appellant, Mr D Murr SC and Mr J Doyle of counsel appearing for the first respondent. Mrs Ihram, a director of the second respondent, appeared for it: she filed a submitting appearance but remained at the bar table during the hearing though she made no submissions. 16Eight issues appear to be raised for determination, though some were not pressed as strongly as others. These are: