Demtear P/L v Abelian P/L

Demtear P/L commenced proceedings against Abelian P/L in the Supreme Court of New South Wales seeking a declaration that clause 12.7 of the sub-lease between the parties was void for uncertainty. The defendants sought to enforce the relocation clause in the sub-lease. The court was required to decide whether the relocation clause was void for uncertainty, whether it was capable of any definite or precise meaning, and whether the promise made by the defendants in the clause was illusory. The court also needed to consider the principles to be applied in construing the sub-lease and in determining uncertainty, and whether any part of the relocation clause was capable of severance if void.

The court held that the relocation clause was not void for uncertainty. The court found that the clause was capable of a definite and precise meaning, and that the promise made by the defendants was not illusory. The court applied the principles of construction of contracts and found that the clause was not uncertain, as it provided a clear and definite standard for the relocation of the premises. The court also found that any part of the relocation clause that was void could be severed, and that the rest of the clause remained valid and enforceable.

The court ordered that the plaintiff pay the defendants’ costs of and incidental to the trial of the separate issues of the construction and validity of clause 12.7 of the sub-lease and the validity of the notice dated 13 January 2004 given by the defendants to the plaintiff. The costs, including reserved costs if any, were to be assessed on the standard basis.

No further orders were made by the court.