GJA Kalra Pty Ltd v Amgade Pty Ltd

[2023] NSWCA 119

Court of Appeal

Supreme Court

New South Wales

Medium Neutral Citation:

GJA Kalra Pty Ltd v Amgade Pty Ltd [2023] NSWCA 119

Hearing dates:

15 November 2022

Date of orders:

15 November 2022

Decision date:

15 November 2022

Before:

Bell CJ at [1];
Brereton JA at [4];
Griffiths AJA at [9]

Decision:

Appeal dismissed with costs

Catchwords:

ESTOPPEL – promissory estoppel – detrimental reliance – estoppel asserted to preclude lessors from enforcing rights under a lease of premises – where estoppel said to run with the land – no detrimental reliance shown ­– appeal conceded

Cases Cited:

Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81; (1901) 18 WN (NSW) 152

Hill v AWJ Moore & Co (1990) 5 BPR 11,359

Plimmer v Wellington Corporation (1884) 9 App Cas 699

Vinden v Vinden [1982] 1 NSWLR 618

Ward v Kirkland [1966] 1 All ER 609; [1967] Ch 194

Category:

Principal judgment

Parties:

GJA Kalra Pty Ltd (Appellant)
Amgade Pty Ltd (First Respondent)
Todarello Property Investments Pty Ltd
(Second Respondent)

Representation:

Counsel:
M Green SC with J Mack (Appellant)
P Afshar (Respondents)

Solicitors:
Felicio Law Firm (Appellant)
KB Legals (Respondents)

File Number(s):

2022/151836

 Decision under appeal 

Court or tribunal:

Supreme Court of New South Wales

Jurisdiction:

Equity Division

Citation:

[2022] NSWSC 509

Date of Decision:

29 April 2022

Before:

Peden J

File Number(s):

2019/198412

ex tempore JUDGMENT

1. BELL CJ: This was an appeal brought from a decision of Peden J in which her Honour refused to grant certain declaratory relief based upon an estoppel that was asserted to preclude the respondents from enforcing rights under a lease of premises. Her Honour's decision is GJA Kalra Pty Ltd v Amgade Pty Ltd [2022] NSWSC 509. Written submissions were of course filed by both parties in advance of the appeal.

2. Mr Green SC, who appeared with Mr Mack, commenced oral argument in support of his appeal. That argument proceeded for approximately half an hour, during which he was asked a number of questions from the bench in relation to various aspects of his argument. That questioning and interchange with the bench led Mr Green to concede that in light of the propositions put to him, which he accepted, his client's appeal must fail. That concession was, in my view, properly made. He also accepted that costs must be awarded against the appellant in respect of the appeal.

3. Mr Afshar, who appears for the respondent, did not seek any special costs order. Accordingly, it follows, in my view, that the appeal should be dismissed with costs.

4. BRERETON JA: It is a fundamental element of a promissory estoppel that the representee, or person seeking to invoke the estoppel, has acted to its detriment in reliance upon the representation. For my part, I have little difficulty with the proposition that an estoppel can, in appropriate circumstances, run with the land. Illustrations of this are to be found in Ward v Kirkland [1966] 1 All ER 609; [1967] Ch 194; Plimmer v Wellington Corporation (1884) 9 App Cas 699; Hamilton v Geraghty (1901) 1 SR (NSW) Eq 81; (1901) 18 WN (NSW) 152 in this Court, and more recently in the decision of Needham J in Hill v AWJ Moore & Co Pty Ltd (1990) 5 BPR 11,359.

5. However, that does not mean that just because a promise concerning land is made, it somehow attaches to the land. In this case the appellant conducted the case on the basis that it, or at least a related company, had contracted to purchase the business and take an assignment of the lease on 10 June 2011, before it contends any relevant representation was made. If that contract be the relevant contract, and it contained a warranty by the vendor pertaining to relevant matters, then it is very difficult to see how a representation made after that contract could have been relied on by the appellant.

6. The appellant then contended that the representation became binding by reason of the first payment of rebate to the vendor of the business in August 2011. The problem with that proposition is that first, by that time, the promise had in any event been varied to be conditional upon prompt payment of rent and outgoings, which condition meant that any estoppel could not be enforced if it were not met: see, for example, the judgment of Needham J in Vinden v Vinden [1982] 1 NSWLR 618. Moreover, the allowance of a rebate by the landlord could not possibly be detrimental reliance by either the outgoing or incoming tenant such as to make the promise one from which the landlord could not resile.

7. The ultimate possible act of detrimental reliance was the completion of the purchase and taking of the assignment of the lease, apparently sometime in 2012; but by that time, not only had the promise been varied to make prompt payment of rent and outgoings a condition, but in addition, the appellant had specifically sought confirmation that it would receive a rebate, had not been given that confirmation, and entered into the assignment of the lease which contained terms quite inconsistent with any such promise.

8. In those circumstances, senior counsel for the appellant was right to recognise that the appeal was hopeless. I agree with the orders proposed by the Chief Justice.

9. GRIFFITHS AJA: I agree with the Chief Justice's reasons why the appeal must be dismissed with costs.

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Decision last updated: 30 May 2023