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Ell v Cisera

Ell v Cisera

Case [2000] NSWSC 768 3 August 2000

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Reported Decision: [2000] 10 BPR 18,045
[2001] ANZ ConvR 439
[2001] NSW ConvR 55-991

New South Wales

Supreme Court

CITATION: Ell v Cisera [2000] NSWSC 768

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 2016/00

HEARING DATE(S): 24 & 25 May and 1 June 2000

JUDGMENT DATE: 3 August 2000

PARTIES :

Richard Ell t/as GNP Printing (P)
Dino Cisera (D)

JUDGMENT OF: Hamilton J

COUNSEL : H Thurairajah, Sol (P)
D L Oliveri, Sol (D)

SOLICITORS: Thurai Rajah Lawyers (P)
Oliveri Solicitors (D)

CATCHWORDS: CONTRACTS [120] - General contractual principles - Construction and interpretation of contracts - Commercial contract - Construction to make commercial sense of contract - LANDLORD AND TENANT [41] - Covenants - For renewal - Right to exercise option - Relief against loss of option for renewal - Principles applicable.

LEGISLATION CITED: Conveyancing Act 1919, ss 133E, 133F & 133G
Supreme Court Rules 1970, Pt 39

CASES CITED: Bay Marine Pty Ltd v Clayton Properties Pty Ltd (1984) 9 ACLR 780
Best and Less (Leasing) Pty Ltd v Darin Nominees Pty Ltd (1994) 6 BPR 13,783
Brown v Gould [1972] Ch 53
Evanel Pty Ltd v Stellar Mining NL [1982] 1 NSWLR 380
Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122
Hammond v Vam Ltd [1972] 2 NSWLR 16
Henderson v Ross [1981] 1 NZLR 417
Hide & Skin Trading Pty Ltd v Oceanic Meat Traders Ltd (1990) 20 NSWLR 310
JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 349
Murphy v Wright (1992) NSW ConvR par 55-652
Re a Lease Kennedy to Kennedy [1935] NZLR 564
Reilly v Liangis Investments Pty Ltd [2000] NSWSC 47
Shevill v The Builders Licencing Board (1982) 149 CLR 620
Stellar Mining NL v Evanel Pty Ltd (1983) NSW ConvR 55-118
Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429
Westpac Banking Corporation v Tanzone Pty Limited [2000] NSWCA 25
Carter & Harland, Contract Law in Australia, 3rd ed, 1997 [704]

DECISION: Landlord not justified in reentering. Discretion exercised against grant of renewed term to tenant.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
HAMILTON J
THURSDAY, 3 AUGUST 2000
2016/00 RICHARD ELL trading as GNP PRINTING v DINO CISERA
JUDGMENT
His Honour:
1 These proceedings arise from a lease of premises at 3 Liverpool Lane, Darlinghurst (“the premises”). They are owned by the defendant, who also owns adjacent premises in which he conducts various businesses in conjunction with his twin sons, Robert Cisera and Rudy Cisera. The premises are old premises going back to about 1910, essentially in the form of a warehouse or garage. They were once used by the sons to conduct a business a motor mechanics. Thereafter they were let to a firm of architects as an office. After the architects left a new steel trowel finished concrete floor was put in and the premises were then let to the plaintiff for use as a printing works.…

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 Ell v Cisera

Details

AGLC: Ell v Cisera [2000] NSWSC 768
Case: [2000] NSWSC 768
Decision Date: 3 August 2000

CaseChat Overview and Summary

The case of Ell v Cisera involved a dispute between Ell, the tenant, and Cisera, the landlord. The primary issue was the interpretation of a commercial lease agreement concerning the tenant's right to renew the lease. Specifically, the tenant sought clarification on the conditions under which the option to renew could be exercised and the consequences of any failure to adhere to those conditions.

The court was tasked with determining the legal principles applicable to the construction and interpretation of the lease agreement. This involved examining the express terms of the contract, as well as any implied terms that could affect the tenant's right to renew. The court also considered the broader context of commercial leases and the need for the contract to make commercial sense. The court held that the tenant's right to exercise the option for renewal was subject to certain conditions, and any failure to comply with these conditions could result in the loss of that right.

The court found that the lease was to be interpreted in a manner that gave effect to the commercial purpose of the agreement. It emphasised the importance of ensuring that the terms of the lease were not rendered nugatory or rendered ineffective by an overly restrictive interpretation. The court concluded that the tenant had failed to comply with the specific conditions necessary to exercise the option for renewal, thereby losing that right. The court's decision was based on a detailed analysis of the contractual terms and the application of general principles of contract law.

The final orders of the court were that the tenant's right to renew the lease was forfeited due to non-compliance with the specified conditions. The court provided guidance on the principles that should be applied in future cases concerning the interpretation of commercial leases and the exercise of renewal options. This decision serves as a reminder of the importance of strict adherence to the terms of lease agreements and the potential consequences of failing to do so.

Orders