Adamson v Ede - [2008] NSWSC 1143

CITATION: Adamson v Ede [2008] NSWSC 1143

HEARING DATE(S): 20, 21 and 22 October 2008

JUDGMENT DATE :
31 October 2008

JUDGMENT OF: Harrison J

DECISION: Parties to bring in short minutes to reflect the orders proposed at par [75].

CATCHWORDS: LEASES – claim by tenant for injunction to restrain landlord from proceeding to recover possession of rural residential premises – relationship of solicitor and client between tenant and landlord - cross claim by landlord to set aside lease as unjust under the Contracts Review Act 1980 or as procured through breach of fiduciary duty or undue influence – special conditions prepared by tenant purporting to give ownership of part of property to him and otherwise rendering the obligation to pay rent illusory – special conditions unjust within s 7(1) of the Act – balance of lease enforceable according to its terms.

LEGISLATION CITED: Contracts Review Act 1980

CATEGORY: Principal judgment

PARTIES: Christopher Michael Adamson (Plaintiff)
Kenneth John Ede (Defendant)

FILE NUMBER(S): SC 11862 of 2008

COUNSEL: G A Sirtes SC (Defendant)

SOLICITORS: In person (Plaintiff)
Horowitz & Bilinksy (Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
COMMON LAW DIVISION

HARRISON J

31 October 2008

11862 of 2008 Christopher Michael Adamson v Kenneth John Ede
JUDGMENT

1 HIS HONOUR: These proceedings arise out of the breakdown of a relationship between the plaintiff and the defendant. There have been other proceedings between them: see Adamson v Ede [2007] NSWSC 829 and ACN097 590 817 Pty Ltd as Trustee of the ACN Trust v Ede; Adamson v Ede [2007] NSWSC 1384. The facts and circumstances in those cases partly inform the present dispute between the plaintiff and the defendant and the development and continuance of enmity between them.

2 The plaintiff is a solicitor. On 31 July 2001 the defendant signed a Residential Tenancy Agreement prepared by the plaintiff, which on its face granted a lease of the defendant's property at Nabiac to the plaintiff for a term of three years commencing on 30 June 2003 with two options to renew for further terms of three years each. The lease contained a series of Special Conditions to which it will be necessary to refer in more detail shortly. The defendant denies that he signed the lease in its present form, insisting that it was blank when he did so, but that he signed it in anticipation of his former wife and co-owner of the property being granted a tenancy for a short term pending resolution of then current matrimonial proceedings between them. The plaintiff acted as the defendant's solicitor in those proceedings. However the defendant's wife left the property in about August 2001 when she was paid $80,000 in accordance with the terms of a property settlement. The plaintiff caused that sum to be lent to the defendant from his family trust. The plaintiff subsequently went into possession of the property in or about April 2003 and has remained there ever since. The first option to renew the…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Adamson v Ede

Details

AGLC: Adamson v Ede [2008] NSWSC 1143
Case: [2008] NSWSC 1143
Decision Date: 31 October 2008

CaseChat Overview and Summary

The case of Adamson v Ede involved a dispute between a tenant, Mr Adamson, and a landlord, Mr Ede, over the validity and enforcement of a lease agreement for rural residential premises. The tenant sought an injunction to prevent the landlord from recovering possession of the property, while the landlord counterclaimed to set aside the lease, arguing it was unjust under the Contracts Review Act 1980 or procured through a breach of fiduciary duty or undue influence. The relationship between the tenant and landlord was further complicated by the fact that the landlord was also the tenant's solicitor.

The court was required to determine whether the lease was enforceable as per its terms, or if it could be set aside due to its unjust nature or improper procurement. The central issue was whether the special conditions of the lease, which purportedly gave ownership of part of the property to the tenant and rendered the obligation to pay rent illusory, rendered the entire lease unjust and unenforceable. Additionally, the court needed to consider whether the landlord's position as the tenant's solicitor constituted a breach of fiduciary duty or undue influence, which could also affect the enforceability of the lease.

The court found that the special conditions of the lease were unjust within the meaning of section 7(1) of the Contracts Review Act 1980, rendering those conditions unenforceable. However, the court held that the balance of the lease was enforceable according to its terms. The court reasoned that while the special conditions were unjust and could not be enforced, the core agreement to lease the property remained valid. The court also found that there was no breach of fiduciary duty or undue influence by the landlord in the preparation or execution of the lease. As a result, the landlord was not entitled to set aside the lease on these grounds. The court dismissed the landlord's cross-claim and ordered that the lease be enforced according to its terms, with the unjust special conditions disregarded.

Orders