Blackler v Felpure Pty Ltd - [1999] NSWSC 958

Reported Decision: [2000] 9 BPR 17,257
[2001] ANZ ConvR 166
(2000) NSW ConvR 55-921

New South Wales

Supreme Court

CITATION: Blackler v Felpure Pty Ltd [1999] NSWSC 958 revised - 26/06/2000

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2951 of 1991

HEARING DATE(S): 13 and 14 September 1999

JUDGMENT DATE:
24 September 1999

PARTIES :

Di Michelle Blackler v Felpure Pty Ltd

JUDGMENT OF: Bryson J at 1

COUNSEL : J. McKenzie for Plaintiff
D. Warren for Defendant

SOLICITORS: Graham Klonis & Co. for Plaintiff
Vosnakis & Associates for Defendant

CATCHWORDS: LANDLORD & TENANT - exercise of option to renew lease - notice given by lessee to managing agent of lessor - validity of notice - authority of managing agent to receive notice - determined by terms of lease; - Retail Leases Act - whether operation of s.35 is subject to s.16 - s.35 not limited by s.16 - duty of good faith of lessor in exercising rights under s.35; - Interpretation of lease - vacant possession - practicable - substantial.;

ACTS CITED: Retail Leases Act 1994
Conveyancing Act 1919
Supreme Court Rules Pt7 r8

CASES CITED: Setena Pty Ltd v Perpetual Trustee Nominees (Canberra) Ltd (1987) NSW ConvR 55-322
Kratzmann (Toowong) Pty Ltd v Marjorie's Investments Pty Ltd [1986] ANZ ConvR 803
Oscars Town Centre REstaurant Pty Ltd v Port Shores Pty Ltd (1987) NSW ConvR 55-331
Wong & Ors v Silkfield Pty Ltd [1999] HCA 48 at 27
Quinlan v Avis (1933) 149 Law Times 214
Kushner v Law Society [1952] 2 All ER 404
Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Dainford Ltd v Lam (1985) 3 NSWLR 255 at 268
Di Salvio v Manthorpe [1965] NSWR 360 at 361-362.
Re Affairs of Farquhar (1943) 2 All ER 781
Lee v Nursery Furnishings Ltd (1945) 1 All ER 387
Adsett v K & L Steelfounders and Engineers Ltd (1953) 1 All ER 97
Heath v Drown [1973] AC 498 at 516-517

DECISION: See para 65

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

FRIDAY 24 SEPTEMBER 1999

2951/91 DI MICHELLE BLACKLER v FELPURE PTY LTD
JUDGMENT

1 HIS HONOUR: These proceedings were commenced on 30 June 1999 and heard with expedition. In the Amended Summons the plaintiff claims a declaration that she duly exercised an option for renewal of lease, specific performance of the agreement to lease arising on exercise of the option, a declaration that the lease has been extended to 30 June 2000 by ss.7 and 16 of the Retail Leases Act 1994, a declaration that a notice of termination given about 14 December 1998 and purportedly terminating the lease on 30 June 1999 had no effect, and injunctions restraining interference with her occupation. She also claims damages and costs. In the Cross-claim the defendant claims possession and also declarations in the contrary sense to those claimed by the plaintiff. 2 Lease 0463564 relates to the premises being the ground floor of 365 Port Hacking Road, Caringbah. The building…

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.

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Details

Case: [1999] NSWSC 958
Decision Date: 24 September 1999

CaseChat Overview and Summary

The case of Blackler v Felpure Pty Ltd involved a dispute between the plaintiff, Blackler, and the defendant, Felpure Pty Ltd, regarding the exercise of an option to renew a lease for retail premises. The matter was heard in the Supreme Court of New South Wales. The central issue before the court was whether the notice given by Blackler to the managing agent of Felpure was valid and if the managing agent had the authority to receive such notice as per the terms of the lease. Additionally, the court had to determine the applicability of sections 35 and 16 of the Retail Leases Act and the obligations of good faith imposed on the lessor when exercising rights under section 35.

The court considered the interpretation of the lease terms, focusing on the authority of the managing agent to receive notice of the exercise of the option to renew. The lease stipulated that notices could be given to the managing agent, thus granting the agent the authority to act on behalf of the lessor. The court also examined the relationship between sections 35 and 16 of the Retail Leases Act, concluding that section 35 was not limited by section 16 and that the lessor had a duty of good faith in exercising the rights under section 35. The court determined that the notice was valid as it was given to the managing agent, who had the authority to receive it as per the lease terms.

Ultimately, the court found in favour of Blackler, ruling that the notice given to the managing agent was valid and that Felpure had failed to exercise its right to renew the lease in good faith. The court's decision highlighted the importance of clear communication and adherence to lease terms and statutory obligations in commercial leasing arrangements. The final orders of the court mandated that Felpure honour the lease renewal option and compensate Blackler for any losses incurred due to the failure to renew the lease.

Orders