Heaps v Addison Wesley Longman - [1999] NSWSC 1093

CITATION: Heaps v Addison Wesley Longman [1999] NSWSC 1093

CURRENT JURISDICTION: Equity

FILE NUMBER(S): 2690/99

HEARING DATE(S): 2 November 1999

JUDGMENT DATE:
2 November 1999

PARTIES :

Barry Wilson Heaps and Toni Adele Heaps (P)
Addison Wesley Longman Australia Pty Ltd (D)

JUDGMENT OF: Austin J

COUNSEL : W Haffenden (P)
Dr C Birch SC (D)

SOLICITORS: Edington & Alfonso (P)
Stephen Blanks & Associates (D)

CATCHWORDS: LANDLORD & TENANT - construction of rent review clause - procedure to resolve disagreement of valuers - termination of office of umpire - meaning of 'fresh request for the appointment of a substitute umpire' - whether lessor's request to lessee sufficient

CASES CITED: Carradine Properties Ltd v Aslam [1976] 1 WLR 442
Mannai Investments Co Limited v Eagle Star Life Insurance Co [1997] AC 749

DECISION: See paragraph 42.

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

TUESDAY 2 NOVEMBER 1999

2690/99 - BARRY WILSON HEAPS & 1 OR V ADDISON WESLEY LONGMAN AUSTRALIA PTY LTD

JUDGMENT (ex tempore; revised 8 November 1999)

1   HIS HONOUR: These proceedings were commenced by summons filed on 11 June 1999. By that summons the plaintiff sought declaratory relief with respect to the proper construction of clause 4.3.7 of the lease between the plaintiffs as landlords and the defendant as tenant with respect to units A1 and A2, 6-8 Byfield Street, North Ryde (‘Lease’), and with respect to the validity of a determination by the umpire pursuant to that clause. The plaintiffs also sought specific performance, damages and other relief.

2   On 24 August 1999 Registrar Berecry made orders placing this matter in the short matters list for the resolution of a ‘preliminary issue’, that issue being determination of the plaintiffs' entitlement to the declarations sought in paragraphs 1 and 2 of the summons. Those are the paragraphs concerning the proper construction of clause 4.3.7 of the lease and the validity of the umpire's determination. The matter came before me for determination of the preliminary issue.
3 Counsel for both parties agreed that the ‘preliminary issue’ is, in fact, the determination of a separate question under Pt 31 of the Supreme Court Rules. After discussion, the parties agreed on a fresh formulation of the separate question in substitution for the formulation made by the Registrar. As now formulated the separate question is as follows:

‘Did the appointment of the umpire (R Aitken) cease prior to the umpire's letter dated 19 March 1998?’

4 I propose to make orders vacating the Registrar's orders with respect to the separate question and substituting an order for the determination of the above question under Pt 31. For reasons which I shall indicate, my answer to the new separate question is ‘yes’.
5   For the purpose of determination of the separate question, the parties ultimately agreed to rely on only a limited portion of the evidence which was adduced in the application before me today. The limited evidence is the following: Exhibit BH1 to the affidavit of Barry Wilson…

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 Heaps v Addison Wesley Longman

Details

AGLC: Heaps v Addison Wesley Longman [1999] NSWSC 1093
Case: [1999] NSWSC 1093
Decision Date: 2 November 1999

CaseChat Overview and Summary

The case involved a dispute between the landlord, Heaps, and the tenant, Addison Wesley Longman. The issue revolved around the interpretation of a rent review clause in their lease agreement and the process for resolving disagreements between the parties' appointed valuers. The dispute came before the Supreme Court of South Australia, which was asked to determine the appropriate procedure to follow when disagreements between the parties' valuers arose and whether the landlord's request to the tenant was sufficient to terminate the office of the umpire and allow for the appointment of a substitute.

The primary legal issue was the interpretation of the rent review clause in the lease, specifically the process for resolving disagreements between the appointed valuers. The court was required to determine the meaning of the phrase "fresh request for the appointment of a substitute umpire" and whether the landlord's request to the tenant was sufficient to trigger this process. The court also needed to consider the implications of the termination of the office of the umpire and the appointment of a substitute umpire on the rent review process.

The Supreme Court of South Australia held that the phrase "fresh request for the appointment of a substitute umpire" in the lease meant a new and distinct request to appoint a substitute umpire, separate from any previous requests or communications between the parties. The court found that the landlord's request to the tenant was not a "fresh request" as it was part of an ongoing correspondence regarding the rent review process. Therefore, the court concluded that the office of the umpire had not been properly terminated, and the appointment of a substitute umpire was not valid. The court emphasised the importance of strict compliance with the terms of the lease when it came to resolving disagreements between the parties' valuers.

The final orders of the court were that the office of the umpire had not been properly terminated, and the appointment of a substitute umpire was not valid. The court directed the parties to continue with the existing rent review process and to adhere to the terms of the lease regarding the resolution of disagreements between the parties' valuers.

Orders