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Comdox v Robins

Comdox v Robins

Case [2009] NSWSC 367 8 May 2009

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CITATION: Comdox v Robins [2009] NSWSC 367

HEARING DATE(S): 30 April 2009

JUDGMENT DATE :
8 May 2009

JURISDICTION: Equity

JUDGMENT OF: Bryson AJ

DECISION: (1) A declaration that the Plaintiff has validly exercised the Option Renew the Lease registered as Lease AD146130T in relation to the premises identified as Folio Identifier 2/597630 and known as 306 Oxford Street, Bondi Junction in the state of New South Wales.
(2) Order that the First and Second Defendant grant to the Plaintiff a new lease for a further term of three years commencing on 17 April 2009 and expiring on 16 April 2012 which is subject to clause 9.2 of the existing lease but in other respects is to be identical to the existing lease.
(3) Order that the First and Second Defendant pay the Plaintiff’s costs of this Statement of Claim.(4) Reserve liberty to apply with respect to compliance with Order 2.

CATCHWORDS: LESSOR and LESSEE – option to renew lease – formalities of exercise – lease cl 9 provided for giving notice of desire to take a new lease and also service of notice of exercise of option – one notice was given – consideration in detail of meaning and effect of cl. 9, a non-standard term – notices were combined in one document, which was held to be sufficient – provisions of lease authorising giving notices under Conveyancing Act 1919 s 170 were facultative and not mandatory and exercise was not defeated by non-compliance – notice sent by post to lessor was returned unclaimed, notice sent by post to solicitor, who was the Chairman of Directors was perceived by him and treated by him and by lessor as effective – HELD – effective exercise of option to renew. Decision on operation of non-standard clause, not a clause in general use.

LEGISLATION CITED: Conveyancing Act 1919Interpretation Act 1987Corporations Act 2001

CASES CITED: Wallville Pty Ltd v Liristis Holdings Pty Ltd [2001] NSWSC 894

PARTIES: Comdox No. 24 Pty Limited (Plaintiff)
Frederick Robins (First Defendant)
Mauricette Robins (Second Defendant)
The Sydney Society of the New Church (Third Defendant)

FILE NUMBER(S): SC 2085/09

COUNSEL: T.J. Morahan (Plaintiff)
G.A. Sirtes SC & J. Knackstred (First and Second Defendants)

SOLICITORS: Lang Noonan Legal (Plaintiff)
Peter R. Murphy & Co (First and Second Defendants)Vaughan Zarb & Co (Third Defendant)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON AJ

Friday 8 May 2009

2085/2009 COMDOX NO. 24 PTY LTD v ROBINS & ORS

JUDGMENT

1 HIS HONOUR: These proceedings relate to the lessee’s claim that it has exercised an option to renew lease AD 146130T of a Mexican restaurant in Oxford Street Bondi Junction. The lessee is Comdox, the plaintiff. The lessor which granted the lease was the Sydney Society of the New Church, the third defendant. I refer to it as the New Church. The lease term commenced on 17 April 2006 and expired on 16 April 2009. The lease was granted on exercise of an option of renewal in an…

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 Comdox v Robins

Details

AGLC: Comdox v Robins [2009] NSWSC 367
Case: [2009] NSWSC 367
Decision Date: 8 May 2009

CaseChat Overview and Summary

Comdox was the lessor and Robins was the lessee of a property. The dispute related to whether Robins had properly exercised an option to renew the lease. The matter was heard in the Supreme Court of South Australia. The primary issue before the court was whether Robins had complied with the formalities required under clause 9 of the lease to exercise the option to renew. Clause 9 required Robins to serve a notice of the desire to take a new lease and a notice of exercise of the option. The court considered whether these notices needed to be separate documents or if they could be combined. Additionally, the court had to determine if the failure to comply with the specific formalities invalidated the exercise of the option.

The court found that clause 9, while not a standard clause, was sufficiently clear. It held that the notices could be combined into one document, which Robins had done. The court emphasised that the provisions of the lease allowing notices to be given under section 170 of the Conveyancing Act 1919 were facultative, not mandatory. Therefore, the failure to comply with the formalities did not defeat the exercise of the option. Furthermore, the court noted that the notice sent to the lessor's solicitor, who was also the Chairman of the Board of Directors, was treated as effective by both the solicitor and the lessor, even though it was returned unclaimed. Consequently, the court concluded that Robins had effectively exercised the option to renew the lease.

The Supreme Court of South Australia ruled in favour of Robins, holding that the exercise of the option to renew the lease was valid despite the non-compliance with the formalities specified in clause 9. The court determined that the combination of notices in one document was acceptable and that the facultative nature of the notice provisions meant that the exercise was not invalidated by non-compliance. The court's decision clarified the operation of non-standard clauses in lease agreements and reinforced the principle that compliance with statutory requirements for notice is not strictly mandatory when the lease itself provides alternative means of communication.

Orders