Bohisa v Freedom - [1999] NSWSC 817

CITATION: Bohisa v Freedom [1999] NSWSC 817

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 3276/97

HEARING DATE(S): 27, 28 and 29 July 1999

JUDGMENT DATE:
29 July 1999

PARTIES :

Bohisa Pty. Limited (Plaintiff)
Freedom Furniture Pty. Limited (Defendant)

JUDGMENT OF: Windeyer J at 1

COUNSEL : Mr. J. Stevenson with him Mr. J. White (Plaintiff)
Mr. D. Hammerschlag (Defendant)

SOLICITORS: Michell Sillar (Plaintiff)
Morgan Lewis Alter (Defendant)

CATCHWORDS: CONTRACTS - leases - agreement to enter into lease - agreement alleged by exchange of faxes - whether binding agreement in absence of formal documentation - whether if binding agreement the agreement was abandoned - whether if otherwise binding subject to condition precedent not fulfilled.

ACTS CITED: Conveyancing Act 1919

CASES CITED: Air Great Lakes Pty. Limited v K S Easter Pty. Limited [1985] 2 NSWLR 309
Blackburn Developments No. 19 Pty. Limited v Downs Surgical (Australia) Pty. Ltd. [1994] 2 BPR 97-689
Chan v Cresdon Pty. Limited (1989) 168 CLR 243
Landsmiths Pty. Limited v Hall [1999] NSWSC 735
Summers v The Commonwealth (1918) 25 CLR 144
Walsh v Lonsdale [1882] 21 Ch D 9

DECISION: Amended Statement of Claim dismissed with costs.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
WINDEYER J
THURSDAY 29 JULY 1999
3276/97 BOHISA PTY. LIMITED v FREEDOM FURNITURE PTY LIMITED
JUDGMENT
Question for decision
1    The question for decision is whether or not the plaintiff, Bohisa Pty. Limited (Bohisa) is entitled to rent of premises 79 Princes Highway Kogarah for a period from 15 June 1996 to 19 July 1997. Bohisa says that there is an agreement between Bohisa and the defendant, Freedom Furniture Pty. Limited (Freedom No 2 or Freedom) to grant and take a lease of that property for a period of five years from 20 July 1992; that it is entitled to specific performance of that agreement by the Freedom No 2 as lessee, that Freedom No 2 vacated the premises on 7 June 1996 and has refused to pay rent after 15 June 1996; and it is entitled to damages accordingly.
Facts
2    The following facts are not in issue. Some are admitted on the pleadings.
3    The premises the subject of dispute were leased by Bohisa to Freedom Furniture Pty. Limited (Freedom No. 1) by lease registered number X617546. That company is not the present defendant. That lease was for a period of five years from 20 July 1987. It contained an option for a further term of five years to be exercised by notice in writing given not less than three months nor more than six months prior to the expiration of the first term. Clause 18 of the lease contained the provisions for exercise of the option and for determination of the rent for the period of the ensuing lease.
4    Four individuals guaranteed the performance by the lessee of its obligations under the lease. The covenants in question are set out in Clause 17 of the lease. Clause 17.7 provided that in case of exercise…

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 Bohisa v Freedom

Details

AGLC: Bohisa v Freedom [1999] NSWSC 817
Case: [1999] NSWSC 817
Decision Date: 29 July 1999

CaseChat Overview and Summary

The parties, Bohisa and Freedom, were engaged in a dispute before the court concerning an agreement to enter into a lease. Bohisa alleged that the parties had agreed to a lease through the exchange of faxes, while Freedom contended that no binding agreement had been formed. The case was heard in a court, the specific details of which are not provided in the text. The dispute centred on whether an agreement had been formed by the exchange of faxes, and if so, whether it had been abandoned or if it was subject to a condition precedent that had not been fulfilled.

The legal issues that the court had to resolve were whether there was a binding agreement between the parties through the exchange of faxes, and if so, whether the agreement was subsequently abandoned or if it was subject to a condition precedent that had not been fulfilled. The court had to consider the principles of contract formation, including the requirement for an offer, acceptance, and consideration, as well as the need for a written agreement in the case of leases under the relevant legislation.

The court's reasoning and outcome are not fully detailed in the provided text. However, it can be inferred that the court would have examined the exchange of faxes to determine if they constituted an offer and acceptance, and if there was consideration. The court would also have considered whether the absence of formal documentation affected the validity of the agreement. If a binding agreement was found, the court would have examined if the agreement was abandoned or if it was subject to a condition precedent that had not been fulfilled. The final outcome of the case, including any orders made by the court, is not provided in the text.

Orders