Howard v 185 Elizabeth Street - [2006] NSWSC 614

CITATION: Howard v 185 Elizabeth Street [2006] NSWSC 614

HEARING DATE(S): 23/05/06

JUDGMENT DATE :
23 May 2006

JURISDICTION: Equity Division

JUDGMENT OF: White J

EX TEMPORE JUDGMENT DATE: 05/23/2006

DECISION: See paras 30-32 of judgment.

CATCHWORDS: LANDLORD & TENANT – Plaintiffs and defendant commenced negotiations for creation of lease agreement – Defendant forwarded leasing proposal to plaintiffs – First plaintiff made alterations to leasing proposal – Leasing proposal allegedly returned to defendant – Leasing proposal expressed not to create binding legal relations – No memorandum or note indicating defendant’s acceptance of altered leasing proposal – Section 54A Conveyancing Act 1919 (NSW) considered – Whether serious question to be tried that parties created binding lease agreement - LANDLORD & TENANT – Leases and licences – Defendant entered into lease agreement with third party in relation to commercial premises – Third party gave licence to plaintiffs to occupy premises – Plaintiffs allegedly in arrears – Third party sent plaintiffs notice of termination of licence agreement – Defendants subsequently terminated lease agreement with third party – Whether serious question to be tried that plaintiffs entitled to possession of premises pursuant to licence agreement or otherwise.

LEGISLATION CITED: Conveyancing Act 1919 (NSW)

PARTIES: Eleanor Howard & Anor
v
185 Elizabeth Street Pty Ltd

FILE NUMBER(S): SC 2721/06

COUNSEL: Plaintiff: M Dicker
Defendant: In person

SOLICITORS: Plaintiff: Sparke Helmore Lawyers
Defendant: N/A

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
DUTY JUDGE LIST

WHITE J

Tuesday, 23 May 2006

2721/06 Eleanor Howard & Anor v 185 Elizabeth Street Pty Ltd

JUDGMENT

1 HIS HONOUR: The principal issue on the present application is whether there is a serious question to be tried that the second plaintiff, Australian Commercial & General Corporation Pty Limited (ACG), is entitled to possession of suites 111-114, 185 Elizabeth Street, Sydney, pursuant to an agreement for lease allegedly made with the defendant. The defendant is the owner of the premises.

2 There is a further question as to whether it is seriously arguable that the first plaintiff, Ms Howard, or a company associated with her, is entitled to possession of suite 111 pursuant to a licence given to her by a previous lessee of the suite. Consequential questions arise with respect to what orders should be made concerning the removal of the plaintiffs’ goods.

3 On 6 May 2006, Hamilton J made orders by consent and without admissions, restraining the defendant, up to and including today, from leasing, licensing, granting occupation of or otherwise dealing with the premises. Orders were also made requiring the defendant to grant supervised access to Ms Howard, or any person authorised in writing by her, to the premises between specified hours on Thursday 18 May and Monday 22 May 2006 for the purposes of checking documents and goods, sorting documents, and removing documents and goods to which she, or persons associated with the plaintiffs, are entitled.

4 Today, the plaintiffs seek the continuation of the injunction restraining the defendant from leasing or otherwise…

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 Howard v 185 Elizabeth Street

Details

AGLC: Howard v 185 Elizabeth Street [2006] NSWSC 614
Case: [2006] NSWSC 614
Decision Date: 23/05/2006

CaseChat Overview and Summary

In the case of Howard v 185 Elizabeth Street, the plaintiffs sought to establish a binding lease agreement with the defendant for a commercial property located at 185 Elizabeth Street. The defendant had forwarded a leasing proposal to the plaintiffs, which the first plaintiff subsequently altered and returned. The proposal included a clause stating that it did not create binding legal relations. The plaintiffs claimed that the defendant had accepted the altered proposal, while the defendant maintained that no binding agreement had been reached due to the absence of a written memorandum or note confirming such acceptance. The plaintiffs also argued that the defendant had granted a third party a licence to occupy the premises, and that they were in arrears. Upon termination of the licence, the third party notified the plaintiffs, who then sought possession of the premises either pursuant to the licence agreement or otherwise.

The primary legal issues before the court were whether there was a binding lease agreement between the parties and whether the plaintiffs were entitled to possession of the premises. The court needed to determine if there was a serious question to be tried regarding the creation of a binding lease agreement and whether the plaintiffs had a valid licence to occupy the premises. The court also had to consider if the plaintiffs were entitled to possession under the licence agreement or otherwise.

The court found that there was no serious question to be tried regarding the creation of a binding lease agreement, as there was no evidence of the defendant's acceptance of the altered leasing proposal. Furthermore, the court held that the plaintiffs were not entitled to possession of the premises. The plaintiffs did not have a valid licence to occupy the premises as they were in arrears, and the third party had terminated the licence agreement. Additionally, the plaintiffs were not entitled to possession under the licence agreement or otherwise.

As a result, the plaintiffs' claims were dismissed, and no orders were made in their favour.

Orders