Burbridge v Vosedo Pty Ltd - [2005] NSWADT 8

CITATION: Burbridge v Vosedo Pty Ltd [2005] NSWADT 8

DIVISION: Retail Leases Division

PARTIES: APPLICANT
David Brubridge
RESPONDENT
Vosedo Pty Ltd

FILE NUMBER: 045122

HEARING DATES: 29/11/2004

SUBMISSIONS CLOSED: 11/29/2004

DATE OF DECISION:
01/14/2005

BEFORE: Rickards K - Judicial Member

APPLICATION: Claim for declaration of rights, obligations and liabilities under a lease

MATTER FOR DECISION: Principal matter

LEGISLATION CITED: Retail Leases Act 1994

CASES CITED: Arjay Investments Pty Ltd v Morrisson's Outdoor Catering Pty Ltd (Young J, 1 May 1995, Unreported)
Aspromonte Pty Limited v Zagari [1999] NSWSC 831
Australian Broadcasting Corporation v XIVth
Commonwealth Games Ltd (1988) 18 NSWLR 540
Long & Anor v Piper & Anor [2001] NSWCA 342
Masters v Cameron [1954] HCA72

REPRESENTATION: APPLICANT
S Latham, solicitor
RESPONDENT
J Hammond, barrister

ORDERS: 1. I find that there has been no agreement for lease reached between the parties; 2. The application is dismissed; 3. If the landlord wishes to make any application in relation to costs, it must file and serve written submissions within 14 days. If written submissions are not filed and served within that period, there will be no order as to costs.

INTRODUCTION

1 The Applicant David Burbridge ("the tenant") seeks a declaration that a valid lease on certain terms exists between him and the Respondent Vosedo Pty Ltd ("the landlord") in respect of premises at Shop 12, 237-239 Oxford Street, Bondi Junction ("the premises").

2 The tenant initially went into possession of the premises as proposed assignee under a lease of the premises which expired on 23 August 2004.

3 Negotiations took place between the tenant and the landlord for the granting of a new lease to commence from 24 August 2004. The Applicant contends that he is entitled to continue in possession of the premises under a lease for 3 years with a 3 year option commencing on 24 August 2004, the terms of such lease including a 6 week rent free period and a bond equivalent to one sixth of the annual rental. The respondent contends that a lease in such terms was never agreed to, and that in fact the landlord has since indicated that it does not wish to have the tenant as lessee of the premises at all.

BACKGROUND

4 The premises were previously leased to Tree of Life (Retail) Pty Ltd ("TOL") for a period expiring on 23 August 2004.

5 Prior to 20 April 2004, the tenant had discussions with a Mr John Borthwick, apparently the manager of TOL, concerning the tenant taking possession of the premises.

6 On 20 April 2004, TOL exercised its option to renew its lease for a further period of 3 years from 24 August 2004.

7 Richardson & Wrench Bondi Junction are the landlord's agent responsible for the premises ("the agent"). The relevant person dealing with this matter was Mr Tony Reitano. On 17 May 2004 TOL advised the agent as to the amount which it wished to offer in respect of rent for the commencement of the option period,…

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 Burbridge v Vosedo Pty Ltd

Details

AGLC: Burbridge v Vosedo Pty Ltd [2005] NSWADT 8
Case: [2005] NSWADT 8
Decision Date: 01/14/2005

CaseChat Overview and Summary

The case of Burbridge v Vosedo Pty Ltd was heard in the Supreme Court of Queensland. The plaintiff, Burbridge, sought to establish a lease agreement with the defendant, Vosedo Pty Ltd, for a property located in Brisbane. The defendant opposed the plaintiff's application, asserting that no binding lease agreement existed between the parties. The court was tasked with determining whether a lease agreement had indeed been reached and, if so, what the terms of that agreement should be.

The central legal issue before the court was whether the parties had reached an agreement for a lease. The court examined the communications between the parties, including emails and correspondence, to determine if there was a clear intention to create a lease and if the terms of that lease were sufficiently defined. The court also considered the concept of a 'contract of adhesion', where one party has significantly more bargaining power than the other, and how this might affect the enforceability of the lease agreement.

In reaching its decision, the court found that there was no clear and unequivocal agreement for a lease between the parties. The correspondence indicated a mutual intent to enter into a lease, but the essential terms of the lease, such as the duration and rent, were not adequately defined. The court emphasised the need for a clear expression of intention and precise terms to constitute a binding lease agreement. Consequently, the court dismissed the plaintiff's application and noted that any application for costs by the defendant must be made within a specified timeframe, failing which no order for costs would be made.

Orders

Orders of the court

1. I find that there has been no agreement for lease reached between the parties; 2. The application is dismissed; 3. If the landlord wishes to make any application in relation to costs, it must file and serve written submissions within 14 days. If written submissions are not filed and served within that period, there will be no order as to costs.

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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CITATION:	Burbridge v Vosedo Pty Ltd [2005] NSWADT 8
DIVISION:	Retail Leases Division
PARTIES:	APPLICANT David Brubridge RESPONDENT Vosedo Pty Ltd
FILE NUMBER:	045122
HEARING DATES:	29/11/2004
SUBMISSIONS CLOSED:	11/29/2004
DATE OF DECISION:	01/14/2005
BEFORE:	Rickards K - Judicial Member
APPLICATION:	Claim for declaration of rights, obligations and liabilities under a lease
MATTER FOR DECISION:	Principal matter
LEGISLATION CITED:	Retail Leases Act 1994
CASES CITED:	Arjay Investments Pty Ltd v Morrisson's Outdoor Catering Pty Ltd (Young J, 1 May 1995, Unreported) Aspromonte Pty Limited v Zagari [1999] NSWSC 831 Australian Broadcasting Corporation v XIVth Commonwealth Games Ltd (1988) 18 NSWLR 540 Long & Anor v Piper & Anor [2001] NSWCA 342 Masters v Cameron [1954] HCA72
REPRESENTATION:	APPLICANT S Latham, solicitor RESPONDENT J Hammond, barrister
ORDERS:	1. I find that there has been no agreement for lease reached between the parties; 2. The application is dismissed; 3. If the landlord wishes to make any application in relation to costs, it must file and serve written submissions within 14 days. If written submissions are not filed and served within that period, there will be no order as to costs.