The recent case of Dee Vine Group Pty Ltd v Palais Reception Centre Pty Ltd [2019] NSWSC 1462 has provided useful judicial guidance as to the requirements of a valid Notice of Breach of Covenants under Section 129 of the Conveyancing Act 1919.
Kunc J reinforced the position found in International Health Clinic Pty Limited v South Sydney West Area Health Services [2010] NSWCA 268 where it was found that a valid Notice of Breach of Covenants under Section 129 must not only allege breach, but must also:
- describe the particular acts or omissions constituting the allege breach, and
- indicate the acts of the tenant which the landlord would consider sufficient for the Lease to continue and on completion of which the landlord would abandon its claim to forfeit.
The standard of particulars or degree of specificity depends on the circumstances, including the nature of the covenant alleged to be breached, the tenant’s actual constructive knowledge and whether the landlord claims reasonable compensation.
Kunc J found that a Notice of Breach of Covenants must generally provide for a high degree of specificity in relation to the requirements of the Lessee to remedy the alleged breaches. For example, the required remedy to ‘cease playing of loud and excessive music from the premises’ was held to be too imprecise as it provided no guidance as to the precise kind of noise the tenant was to cease creating and provided no maximum noise levels measured in decibels and frequencies.
Further, the requested remedy to ‘regularly remove all trade waste, garbage or refuse from the premises‘ was also found wanting for specificity as the concept of ‘regularly’ was too imprecise and should have been set out in respect of particular time periods or after certain events.
Accordingly, the contents of a Notice of Breach of Contents must be carefully considered and the Lessor’s specific requirements in relation to the remedy of those breaches set out with maximum specificity in order for the Notice to be upheld.
