Long v Piper

[2001] NSWCA 342

NEW SOUTH WALES COURT OF APPEAL

CITATION:    Long & Anor v Piper & Anor [2001]  NSWCA 342

FILE NUMBER(S):
40560/00

HEARING DATE(S):             30 July 2001

JUDGMENT DATE:               28/09/2001

PARTIES:
Michael Howard Long & Anette Cheryl Long - Appellants
Terrence John Piper & Lynette Jean Piper - Respondents

JUDGMENT OF:      Priestley JA Giles JA Foster AJA   

LOWER COURT JURISDICTION:             District Court

LOWER COURT FILE NUMBER(S):        DC 22/97 (Dubbo), DC 9278/99 (Sydney)

LOWER COURT JUDICIAL OFFICER:   Taylor DCJ

COUNSEL:
G K Downes QC & P A Regattieri - Appellants
D F Rofe QC & R W Cameron - Respondents

SOLICITORS:
M J Duffy & Son, Dubbo - Apellants
Sweeney Waterford, Wee Waa - Respondents

CATCHWORDS:
CONTRACT - whether a concluded agreement for lease - parties had solicitors - formal lease to be prepared and executed - finding that earlier entry into possession was as caretakers not lessees - consideration for grant of lease not paid - held binding obligations to arise on "exchange" of lease documents and payment of the consideration - no agreement for lease prior to that time.  D

LEGISLATION CITED:

DECISION:
Appeal dismissed with costs.

JUDGMENT:

IN THE SUPREME COURT
OF NEW SOUTH WALES
COURT OF APPEAL

CA  40560/00

DC  22 of 1997 (Dubbo)     

DC  9278 of 1999 (Sydney)

PRIESTLEY JA

GILES JA
  FOSTER AJA

Friday 28 September 2001

LONG & ANOR V PIPER & ANOR

JUDGMENT

1. PRIESTLEY JA:  I agree with Giles JA.

2. GILES JA:  The appellants, Mr Michael Long and his wife Mrs Annette Long, owned the Imperial Hotel at Pilliga in New South Wales.  Mr Long was the licensee of the hotel.  They sued the respondents, Mr Terrence Piper and his wife Mrs Lynette Piper, claiming damages for breach of an agreement by which the respondents would lease the hotel for five years from 1 July 1993.  Taylor DCJ held that a concluded agreement for lease had not come into existence, and gave judgment for the respondents with costs. 

   Facts

3. The appellants became the owners of the hotel in June 1991.  They installed a lessee.  In May 1992 the hotel was destroyed by fire.  It was rebuilt by December 1992, but the lessee did not go back into possession. Mr Long became the licensee and ran the hotel himself.

4. At some time prior to June 1993 the appellants placed the hotel with a number of hotel brokers for sale or lease.  The respondents saw one of the brokers’ advertisements.  In late May or early June 1993 the respondents inspected the hotel.  They were prepared to buy the hotel for $420,000, but could not obtain the necessary finance.  An arrangement was negotiated by which they would lease the hotel for five years with an option to purchase at the end of the term, paying $90,000 for the lease with a correspondingly reduced payment for the freehold if the option was exercised.  It was not suggested that a concluded agreement for lease came into existence at this stage. 

5. In the course of negotiating the arrangement there was discussion…