Insearch Ltd v Kin Hing P/L - [2003] NSWSC 875

CITATION: INSEARCH LTD v. KIN HING P/L & ORS [2003] NSWSC 875

HEARING DATE(S): 15 & 16/09/2003

JUDGMENT DATE:
26 September 2003

JURISDICTION:
EQUITY

JUDGMENT OF: Bryson J at 1

DECISION: Judgment for defendants

CATCHWORDS: LANDLORD and TENANT - agreement to lease - formation of agreement - correspondence marked "Subject to Lease" and expressing conditions for binding effect requiring execution of formal lease - held no agreement for lease formed, no estoppel or other alleged causes of action

LEGISLATION CITED: Real Property Act 1900 s.42
Trade Practices Act s.52

CASES CITED: Baulkham Hills Private Hospital Pty Ltd v. GR Securities Pty Ltd (1986) 40 NSWLR 622
Expectation Pty Ltd v. Pinnacle VRB Ltd [2002] WASCA 160
MacKay v. Dick (1881) 6 App Cas 251
Pentagold Investments Pty Ltd. v. Romanos [2001]
NSWCA 425

PARTIES :
Insearch Limited - Plaintiff
Kin Hing Pty Ltd and Ford Hing Pty Ltd - First Defendants
Shop Distributive and Allied Employees' Association New South Wales Branch - Second Defendant

FILE NUMBER(S): SC 4239/2003

COUNSEL: R. Harper - Plaintiff
D. Raphael - First Defendants
G. Blake SC - Second Defendant

SOLICITORS: Deacons Lawyers - Plaintiff
Mok & Associates - First Defendants
Holman Webb Lawyers - Second Defendant

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

BRYSON J.

Friday 26 September 2003

4239/2003 INSEARCH LIMITED v. KIN HING PTY LTD, FORD HING PTY LTD & SHOP DISTRIBUTIVE AND ALLIED EMPLOYEES’ ASSOCIATION

JUDGMENT

1 HIS HONOUR: These proceedings relate to leasing commercial premises at Level 3, Prince Centre, 8 Quay Street, Haymarket. Level 3 is the stratum in Folio Identifier 155/SP 34481. By lease dated 9 February 1999 the first and second defendants referred to as Kin Hing, who were then registered proprietors granted Insearch a lease now registered 5587858C of Level 3 for a term of five years commencing on 8 November 1998 and expiring on 7 November 2003, with an option to renew for a period of five years set out in cl.20 in these words:

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: [2003] NSWSC 875
Decision Date: 26 September 2003

CaseChat Overview and Summary

The case of Insearch Ltd v Kin Hing P/L involved a dispute between the plaintiff, Insearch Ltd, and the defendant, Kin Hing P/L, regarding the formation of an agreement for the lease of a property. The matter was heard in the Supreme Court of Queensland. The plaintiff claimed that a binding lease agreement had been formed, while the defendant argued that no such agreement existed, and that the plaintiff's claims for estoppel and other causes of action should be dismissed.

The central legal issue the court had to decide was whether a binding lease agreement had been formed between the parties, and if so, under what conditions. The court considered whether the correspondence between the parties, which included terms such as "Subject to Lease" and outlined conditions for a binding agreement, was sufficient to constitute a binding lease. The court also examined whether the plaintiff could establish any alternative causes of action, such as promissory or proprietary estoppel.

The court found that the correspondence between the parties did not amount to a binding lease agreement, as the terms were marked "Subject to Lease" and required the execution of a formal lease for binding effect. The court held that the defendant's correspondence did not constitute an unequivocal expression of intention to be bound, and therefore, no binding agreement was formed. The court also dismissed the plaintiff's claims for estoppel and other causes of action, finding that there was no basis for any of the plaintiff's claims. The court concluded that no agreement for a lease had been formed and that the defendant was not estopped from asserting this fact.

The court ordered that the plaintiff's claims be dismissed with costs. The court held that the plaintiff take nothing by way of its claims and that the defendant recover its costs of the proceedings.

Orders