CITATION: Alcatel Australia Limited v Scarcella & Ors [2001] NSWCA 401 FILE NUMBER(S): CA 40218/01 HEARING DATE(S): 21 September 2001 JUDGMENT DATE:
13 November 2001PARTIES :
Alcatel Australia Limited - Appellant
Francesco Scarcella - First Respondent
Helen Scarcella - Second Respondent
Rocky Scarcella - Third RespondentJUDGMENT OF: Beazley JA at 1; Stein JA at 2; Davies AJA at 82
LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT
FILE NUMBER(S) :EQ 3368/95 LOWER COURT
JUDICIAL OFFICER :Austin J
COUNSEL: P M Biscoe QC/S J Motbey - Appellant
V R W Gray - RespondentsSOLICITORS: Quinn & Quinn - Appellant
Henshaws Solicitors - RespondentsCATCHWORDS: CONTRACT - LEASE - rent review clause - base rent - valuer to assume a hypothetical market - whether valuer entitled to have regard to real market - whether valuer could conclude there was no market - approach to be taken in construction of rent review clause - CONTRACT - LEASE - claim before referee - whether party entitled to withdraw claim - Anshun estoppel - no final orders - CONTRACT - LEASE - repair covenant - corroded window frames - referee's report - whether reasonably minded owner would repair or replace - exclusion of replacement as an option by referee - whether trial judge correct to exclude aspects of referee's report. - EVIDENCE - credit - preference of referee - expert evidence - D LEGISLATION CITED: Supreme Court Rules CASES CITED: Alcatel Australia Limited v Scarcella (1998) 44 NSWLR 349
Basingstoke and Deane Borough Council v Host Group Ltd [1988] 1 WLR 348
British Airways PLC v Heathrow Airport Ltd [1972] 1 EGLR 141
Dennis & Robinson Ltd v Kiossis Establishment (1987) 282 EG 857
F. R. Evans (Leeds) Ltd v English Electronic Co Ltd (1977) 36 P & CR 185
Graham v The Markets Hotel Pty Ltd (1943) 67 CLR 567
Jeffries v O'Neill (1987) 1 WLR 348
Port of Melbourne Authority v Anshun Pty Limited (1981) 147 CLR 589
Super Pty Ltd v SJP Formwork (Aust) Pty Ltd (1992) 29 NSWLR 549DECISION: 1) Appeal allowed in part. 2) Order 4 of Austin J's judgment set aside. 3) Declaration that the appellant was not in breach of cl 2(c)(i) of the lease with respect to items 145 and 146 of the Notice of Default be substituted. 4) Each party to bear its own costs of the appeal. 5) Agreed Short Minutes of Order to be filed within 7 days.
IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL
CA 40218/01
EQ 3368/95
BEAZLEY JA
STEIN JA
DAVIES AJA
Tuesday, 13 November 2001
ALCATEL AUSTRALIA LIMITED v Francesco SCARCELLA & Ors
The appellant is the lessee of a custom built commercial building at Alexandria. The respondents are the lessors of that property, and there is a lease in place between the parties, dated 15 December, 1969, with a term of 50 years. Three issues were raised on appeal. The first was the construction of a rental…
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- Case
- [2001] NSWCA 401
- Decision Date
CaseChat Overview and Summary
The primary legal issues before the court were: (1) the proper construction of the rent review clause, particularly the extent to which a valuer could have regard to the real market when assessing a hypothetical market rent; (2) whether the valuer was entitled to conclude that there was no market for the premises; (3) the application of *Anshun* estoppel in relation to a claim withdrawn before a referee; and (4) whether the referee's exclusion of replacement as a repair option for corroded window frames was correct, and consequently, whether the trial judge erred in upholding that exclusion.
The court considered the principles of contractual construction in relation to rent review clauses, emphasizing that the language of the clause itself was paramount. It was held that a valuer appointed to determine a hypothetical market rent was entitled to have regard to the real market to inform their assessment of that hypothetical market. The court also addressed the *Anshun* estoppel principle, noting its application to claims that could and should have been brought in earlier proceedings. Regarding the repair covenant, the court examined the meaning of "repair" in the context of the lease and the condition of the window frames, considering whether a reasonably minded owner would repair or replace them.
The appeal was allowed in part, with Order 4 of the trial judge's judgment being set aside and a declaration substituted to the effect that the appellant was not in breach of a specific clause of the lease concerning certain items in a Notice of Default. Each party was ordered to bear their own costs of the appeal.
Orders
Orders of the court
1) Appeal allowed in part. 2) Order 4 of Austin J's judgment set aside. 3) Declaration that the appellant was not in breach of cl 2(c)(i) of the lease with respect to items 145 and 146 of the Notice of Default be substituted. 4) Each party to bear its own costs of the appeal. 5) Agreed Short Minutes of Order to be filed within 7 days.
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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