Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
Hearing dates:
31 October; 2 November 2017
Date of orders:
01 May 2018
Decision date:
01 May 2018
Jurisdiction:
Equity
Before:
Ward CJ in Eq
Decision:
(1) Declare that the binding agreement for lease that came into existence on 30 June 2015 following the valid exercise by the plaintiff on 12 March 2015 of the option contained in registered lease No AF722335 (“the Lease”) of premises known as Shop 4, 54-60 Flinders Avenue, South Camden (“the Premises”), has not been abandoned or relinquished by the plaintiff. (2) Order that the defendant specifically perform the said agreement for lease in relation to the Premises, by providing to the plaintiff within 28 days a lease, for execution by the plaintiff, on the terms provided for under the option clause in the Lease (cl 4.6) with a commencement date of 30 June 2015 and at a commencing rental of $47,644.13 per annum. (3) Order (2) is subject to the provision by the plaintiff to the defendant, within 21 days of a written undertaking by the plaintiff to rectify the breaches of lease referred to in these reasons and the subject of order (4) below; and to indemnify the defendant for any claim by any other tenant in the shopping centre of which the Premises form part in relation to condensate discharge from the lines on the external walls of the building. (4) On the cross-claim, order as follows: (i) Order the plaintiff to rectify any damage to the roof sheeting caused by the installation of air conditioning units and/or an aerial on the roof of the Premises or (at the election of the defendant) to pay the defendant the sum of $10,000 for removal of those items, the relocation and re-gassing of the air conditioning units, and the removal and replacement of the roof sheeting. (ii) Order the plaintiff to indemnify the defendant against any claim by any other tenant in the shopping centre of which the Premises form part in relation to condensate discharge from the external air conditioning compressor lines. (iii) Order the plaintiff to take all necessary steps to install and maintain compliant fire extinguishers on the Premises as required by the Lease. (iv) Order the plaintiff to comply with the requirements under the Lease for provision and maintenance of line-markings for disabled car spaces or (at the election of the defendant) to pay to the defendant the sum of $2,000 in relation thereto. (v) Order the plaintiff to redecorate the Premises in accordance with cl 7.3.3 of the Lease or (at the election of the defendant) to pay to the defendant the sum of $4,300 in relation thereto. (vi) Order the plaintiff to provide the defendant within 21 days (if he has not already done so) with a signage plan for the premises. (vii) Order the plaintiff to produce to the defendant within 21 days (if he has…
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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Gupta v Fordham Laboratories Pty Ltd [2018] NSWSC 551
Case
[2018] NSWSC 551
Decision Date
CaseChat Overview and Summary
The matter involved a dispute between the respondent, Fordham Laboratories Pty Ltd, and the appellant, Gupta. The respondent had granted the appellant an option to lease premises in Sydney, which the appellant exercised. The respondent subsequently refused to proceed with the agreement for lease, claiming that the agreement had been abandoned. The appellant sought specific performance of the agreement for lease and damages for the respondent’s alleged breaches of the option lease. The respondent cross-claimed for damages for the appellant’s alleged breaches of the option lease. The matter was heard in the New South Wales Supreme Court.
The central legal issues were whether the agreement for lease arising out of the exercise of the option had been abandoned, and if not, whether the appellant was entitled to specific performance of the agreement for lease. The court had to consider whether the respondent had abandoned the agreement for lease and if the discretionary considerations relevant to a specific performance order supported ordering specific performance.
The court found that the agreement for lease had not been abandoned. The court also considered the discretionary considerations relevant to a specific performance order. The court found that specific performance of the agreement for lease should be ordered, as the appellant had established a strong case for relief and the respondent had not established any discretionary considerations that would dissuade the court from ordering specific performance. The court also found that the appellant had not breached the option lease. The court dismissed the respondent’s cross-claim.
The court ordered specific performance of the agreement for lease, dismissing the respondent’s claim for damages for the appellant’s alleged breaches of the option lease. The court also dismissed the respondent’s cross-claim. The court ordered the respondent to complete the agreement for lease with the appellant within a specified time. The court ordered the parties to pay their own costs of the proceedings.