Fedeli and Santopadre v Alex Constructions Pty Ltd - [2016] NSWCATCD 34

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, 1994
Cases 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…

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.

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Details

Case: [2016] NSWCATCD 34
Decision Date: 04 March 2016

CaseChat Overview and Summary

In the matter of Fedeli and Santopadre v Alex Constructions Pty Ltd, the applicants sought to exercise an option to renew a commercial lease, which was governed by Clause 4 of the Law Society Commercial Lease. The applicants, represented by a solicitor, sought to enforce the option to renew against the respondents, who were the landlords and the owners of the leased property. The dispute arose over the validity of the solicitor's authority to exercise the option to renew, the validity of a s133E Notice under the Conveyancing Act, and the applicability of the doctrine of approbation and reprobation. The Civil and Administrative Tribunal of New South Wales was tasked with deciding these legal issues.

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

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

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, 1994
Cases 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…