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Carrathool Hotel Pty Ltd v Scutti

Carrathool Hotel Pty Ltd v Scutti

Case [2005] NSWSC 401 29 April 2005

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Reported Decision:
(2006) NSW ConvR 56-132

New South Wales

Supreme Court

CITATION:
Carrathool Hotel P/L v Scutti & 1 Or [2005] NSWSC 401

HEARING DATE(S): 21-24/03/05

JUDGMENT DATE :

29 April 2005

JUDGMENT OF:
White J

DECISION:
See paras 67 and 68 of judgment.

CATCHWORDS:
CONTRACT - Rectification of a lease - Common intention - Mutual mistake - No express covenant by the lessor to effect repairs - Lessee not required by contract to undertake structural works - No implied term that landlord be responsible for repairs - Held that parties intended and agreed that the lessor would be responsible for structural repairs - Construction of rent escalation clause by CPI increases where parties failed to agree on a new rent - Held that "failing agreement" included situation where no offer was made by either party.

LEGISLATION CITED:
Fair Trading Act 1987 (NSW)

CASES CITED:
Duke of Westminster v Guild [1985] 1 QB 688
Barrett v Lounova (1982) Ltd [1989] 1 All ER 351
Carbure Pty Ltd v Brile Pty Ltd [2002] ANZ Conv R 584, [2002] VSC 272
Dowding and Reynolds, The Law of Dilapidations, 3 ed
Adami v Lincoln Grange Management Ltd [1998] 1 EGLR 58
Woodfall, Landlord and Tenant, Vol 1
Standard Portland Cement Co Pty Ltd v Good [1982] 2 NSWLR 668
Sipad Holding ddpo v Popovic (1995) 61 FCR 205
Bush v National Australia Bank Ltd (1992) 35 NSWLR 390
Commonwealth Bank of Australia v Cluness (1997) 8 BPR 15,467
Muriti v Prendergast [2005] NSWSC 281
Granada Theatres Ltd v Freehold Investment (Leytonstone) Ltd [1959] 1 Ch 592
Dowding and Reynolds, Dilapidations, The Modern Law and Practice, 3 ed
British Anzani (Felixstowe) Ltd v International Marine Management (UK) Ltd [1980] QB 137
Lee-Parker v Izzet [1971] 1 WLR 1688
Connaught Restaurants Ltd v Indoor Leisure Ltd [1994] 1 WLR 501
Batiste v Lenin (2002) 10 BPR 19,441
Batiste v Lenin (2003) 11 BPR 20,403
Citibank Pty Ltd v Simon Fredericks Pty Ltd [1993] 2 VR 168
Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd (2000) 77 SASR 261
Waite, Disrepair and Set-Off of Damages Against Rent: The Implications of British Anzani [1983] Conv 373
Waite, Repairs and Deduction from Rent, The Conveyancer and Property Lawyer [1981] 45 Conv (N.S.) 199
Connaught Ltd v Indoor Leisure Ltd [1994] 1 WLR 501
Re Partnership Pacific Securities Ltd [1994] 1 Qd R 410
Grant v NZMC Ltd [1989] 1 NZLR 8
Derham, The Law Relating to Set-Off, 3 ed

PARTIES:
Carrathool Hotel Pty Ltd v Gino Scutti & 1 Or

FILE NUMBER(S):
SC 4773/04

COUNSEL:
Plaintiffs: R Parsons
Defendants: G Carolan

SOLICITORS:
Plaintiff: Deutsch Partners Lawyers
Defendant: Back Schwartz Vaughan

LOWER COURT JURISDICTION:

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
EXPEDITION LIST

WHITE J

Friday, 29 April 2005

4773/04 CARRATHOOL HOTEL PTY LTD v GINO SCUTTI & 1 Or

JUDGMENT

1 HIS HONOUR: The plaintiff is the lessee of the Carrathool Hotel. The defendants are 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 Carrathool Hotel Pty Ltd v Scutti

Details

AGLC: Carrathool Hotel Pty Ltd v Scutti [2005] NSWSC 401
Case: [2005] NSWSC 401
Decision Date: 29 April 2005

CaseChat Overview and Summary

Carrathool Hotel Pty Ltd sought an order to rectify the lease of the Carrathool Hotel to reflect the common intention of the parties regarding the allocation of responsibilities for structural repairs. The dispute came before the Supreme Court of New South Wales. The lessee argued that the lessor should be responsible for structural repairs, contrary to what was explicitly stated in the lease. The lessor, on the other hand, argued that the lease correctly reflected the parties' intentions and that there was no mutual mistake.

The court had to determine whether the lease should be rectified to reflect the common intention of the parties regarding the allocation of responsibilities for structural repairs. The court also needed to interpret the rent escalation clause in the lease to determine whether it applied in situations where neither party made an offer to vary the rent.

The court found that the parties intended and agreed that the lessor would be responsible for structural repairs, despite the express terms of the lease to the contrary. The court concluded that the parties' common intention was not accurately reflected in the lease due to a mutual mistake. The court also held that the rent escalation clause applied where no offer was made by either party to vary the rent. The court found that the lessee's interpretation of the clause was too narrow and that it included situations where no offer was made by either party.

The court ordered that the lease be rectified to reflect the common intention of the parties regarding the allocation of responsibilities for structural repairs. The court also ordered that the rent be escalated by the Consumer Price Index increases for the period in question.

Orders