Civil and Administrative Tribunal
New South Wales
Medium Neutral Citation: Fedeli and Santopadre v Alex Constructions Pty Ltd [2016] NSWCATCD 34 Hearing dates: 2, 3 March, 14 May, 15 June 2015 Decision date: 04 March 2016 Jurisdiction: Consumer and Commercial Division Before: D Bluth, Senior Member Decision: 1. The option to renew was exercised in accordance with the terms of the Lease.
2. The Applicants are entitled to the option to renew the Lease notwithstanding the s133E Notice.
3. The Applicants are entitled to the option to renew the Lease notwithstanding a breach of clause 4.2.2.
4. Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38 of the Civil and Administrative Tribunal Rule 2014 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
5. The costs respondent will have 21 days after the date of receipt of the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.6. The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
7. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.Catchwords: Clause 4 of the Law Society Commercial Lease, exercise of option to renew by a solicitor, solicitor's authority to issue and receive notices under the Lease and the Conveyancing Act, validity of s133E Notice under the Conveyancing Act and the doctrine of approbation and reprobation Legislation Cited: Conveyancing Act 1919
Retail Leases Act, 1994Cases Cited: C & P Syndicate Pty Ltd v Reading [2013] NSW SC 43
Comdox v Robins (2009) NSWSC 367
Cronulla Newsagency Pty Ltd v Piazzala [2002] NSWADT 121
Gilbert J McCaul (Aust) Pty Ltd v The Pitt Club Ltd (1957) 59 SR (NSW) 122
Kavia Holdings Pty Ltd v Bellavista Pty Ltd (2006) NSW SC 633
Kazas & Associates Pty Ltd v Multiplex (Mountain Street) Pty Ltd 2003 [NSW] SC840
Kent v Hogarth (1995) QCA 472
Lo Guidice v Bivano (No 2) (1962) VR 429
Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service (2010) NSWCA 268
Mineaplenty Pty Ltd v Trek 31 Pty Ltd (2006) NSWSC 1203
Nameless Shamelss and Legless Pty Ltd v 2 Roslyn Street Pty Limited (2004) NSWSC 519
New South Wales Netball Association Ltd v Probuild Constructions (Aust) Pty Ltd VC 2015 08874
Ong v Luong (1991) 9 BPR 16, 759
Prudential Assurance Co Ltd v Helth Minders Pty Ltd (1967) 9 NSWLR
Rilfang v L Pty Ltd (2002) 11 VPR…
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- Case
- [2016] NSWCATCD 34
- Decision Date
CaseChat Overview and Summary
The primary legal issues that the Tribunal had to resolve were whether the option to renew the lease was validly exercised by the solicitor, whether the s133E Notice was properly served, and whether the doctrine of approbation and reprobation applied in this case. The Tribunal needed to determine if the solicitor had the authority to issue and receive notices under the Lease and the Conveyancing Act. Additionally, the Tribunal had to consider whether the s133E Notice, which was intended to prohibit the exercise of the option to renew, was valid and if it affected the applicants' entitlement to the option to renew the Lease.
The Tribunal found that the option to renew was exercised in accordance with the terms of the Lease, and the solicitor had the authority to issue and receive notices under the Lease and the Conveyancing Act. The Tribunal held that the s133E Notice was invalid and did not affect the applicants' entitlement to the option to renew the Lease. Furthermore, the Tribunal determined that the doctrine of approbation and reprobation did not apply in this case, as the respondents had not explicitly approved the solicitor's actions.
In conclusion, the Tribunal ordered that the option to renew the Lease was validly exercised by the applicants, and they were entitled to the option to renew the Lease notwithstanding the invalid s133E Notice. The Tribunal also outlined the procedure for any costs application, requiring the parties to lodge and serve their submissions within specified timeframes. The Tribunal emphasised that the determination of any costs application would be based on the papers lodged in the Tribunal.
Orders
Orders of the court
1. The option to renew was exercised in accordance with the terms of the Lease.
2. The Applicants are entitled to the option to renew the Lease notwithstanding the s133E Notice.
3. The Applicants are entitled to the option to renew the Lease notwithstanding a breach of clause 4.2.2.
4. Any costs application pursuant to section 60 of the Civil and Administrative Tribunal Act 2013 or Rule 38 of the Civil and Administrative Tribunal Rule 2014 must be lodged in the Tribunal and served on the costs respondent within 21 days of the date of this order either attaching or referring to the documents relied upon in support of the application.
5. The costs respondent will have 21 days after the date of receipt of the costs application referred to above, to lodge in the Tribunal and serve on the costs applicant the submissions, if any, in response to the costs application, such submissions either attaching or referring to the documents relied upon.
6. The cost applicant will have 14 days after the date of receipt of the cost respondent's submissions to lodge in the Tribunal and serve on the costs respondent the submissions, if any, in reply, such submissions either attaching or referring to the documents relied upon.
7. The Tribunal will determine any costs application on the basis of the papers lodged in the Tribunal.
Background
Background to the litigation
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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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