Court of Appeal
Supreme Court
New South Wales
- Summary available
- Amendment notes
Medium Neutral Citation: Darzi Group Pty Ltd v Nolde Pty Ltd [2019] NSWCA 210 Hearing dates: 5 July 2019 Decision date: 30 August 2019 Before: Bathurst CJ at [1];
Basten JA at [20];
Emmett AJA at [56]Decision: 1. Leave granted to file an amended notice of appeal in accordance with the reasons of today’s date.
2. Appeal allowed.
3. Orders made on 29 March 2019 be set aside.
4. In lieu of those orders, declare that, upon receipt by O’Brien Connors & Kennett of Pigott Stinson’s letter of 31 May 2016, the respondent as landlord and the appellant as tenant entered into an agreement for the lease of the Premises in the terms of the document enclosed with the letter of 15 June 2016 from Pigott Stinson to O’Brien Connors & Kennett (the 15 June Document).
5. Order that the respondent execute the 15 June Document, attend to the stamping and registration of that instrument under the Real Property Act 1900 (NSW), and furnish to the appellant a certified copy of the registered instrument as evidence of the appellant’s title.
6. Order the defendant to pay the plaintiff’s costs of the summons.
7. Order the respondent to pay the appellant’s costs of the appeal.Catchwords: LEASES AND TENANCIES – whether the parties entered into a binding and enforceable agreement for lease of the Premises in the terms of the 15 June Document – significance to be attached to the Heads of Agreement as constituting a binding document – whether language used in correspondence of 27 and 31 May 2016 signifies that a reasonable person in the position of the parties would understand the communication as giving rise to a binding and enforceable contract – significance of marking correspondence as “without prejudice”.
APPEAL – whether it was unnecessary to determine whether the Heads of Agreement were binding – whether the parties did not intended to replace the Heads of Agreement and be bound by the 15 June Document until execution and exchange of a formal lease document – whether the law of part performance applied to the question of whether the parties intended to be bound by the 15 June Document – whether the parties conducted themselves in a manner consistent with the 15 June Document, a monthly tenancy or a statutory lease under the Retail Leases Act 1994 (NSW).Legislation Cited: Civil Procedure Act 2005 (NSW), s 94
Conveyancing Act 1919 (NSW), s 127
Real Property Act 1900 (NSW)
Retail Leases Act 1994 (NSW), ss 3, 5, 6, 6A, 7, 8, 11, 16, 17, 34, 62B, 71A, 72AA, 80, 84A, Sch 1
Supreme Court Act 1970 (NSW), s 75ACases Cited: Alan Ramsay Sales & Marketing Ltd v Typhoo Tea Ltd [2016] 4 WLR 59
Aspromonte Pty Ltd v Zagari [1999] NSWSC 831
Australian Broadcasting Corporation v XIVth Commonwealth Games (1988) 18 NSWLR 540
Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40…
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- Case
- [2019] NSWCA 210
- Decision Date
CaseChat Overview and Summary
The legal issues before the court included determining the significance of a Heads of Agreement and whether correspondence exchanged between the parties on 27 and 31 May 2016 indicated an intention to be bound by a contract. The court also considered the relevance of marking correspondence as "without prejudice" and whether the parties intended to be bound by the 15 June Document only upon the execution and exchange of a formal lease document. Furthermore, the applicability of the law of part performance to the question of contractual intention and the nature of the parties' conduct, whether consistent with the 15 June Document, a monthly tenancy, or a statutory lease under the *Retail Leases Act 1994* (NSW), were central to the appeal.
The Court of Appeal allowed the appeal, setting aside the orders made on 29 March 2019. The court declared that upon receipt of the respondent's letter dated 31 May 2016, the parties had entered into an agreement for the lease of the premises in the terms of the 15 June Document. The court reasoned that the correspondence, when viewed objectively, signified a binding agreement. Consequently, the respondent was ordered to execute the 15 June Document, attend to its stamping and registration, and provide the appellant with a certified copy. The court also made orders regarding the costs of the summons and the appeal.
Orders
Orders of the court
1. Leave granted to file an amended notice of appeal in accordance with the reasons of today’s date.
2. Appeal allowed.
3. Orders made on 29 March 2019 be set aside.
4. In lieu of those orders, declare that, upon receipt by O’Brien Connors & Kennett of Pigott Stinson’s letter of 31 May 2016, the respondent as landlord and the appellant as tenant entered into an agreement for the lease of the Premises in the terms of the document enclosed with the letter of 15 June 2016 from Pigott Stinson to O’Brien Connors & Kennett (the 15 June Document).
5. Order that the respondent execute the 15 June Document, attend to the stamping and registration of that instrument under the Real Property Act 1900 (NSW), and furnish to the appellant a certified copy of the registered instrument as evidence of the appellant’s title.
6. Order the defendant to pay the plaintiff’s costs of the summons.
7. Order the respondent to pay the appellant’s costs of the appeal.
Background
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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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