OXS Pty Ltd v Sydney Harbour Foreshore Authority

OXS Pty Ltd (the appellant) appealed from a decision of the primary judge concerning a dispute with the Sydney Harbour Foreshore Authority (the respondent) regarding an alleged agreement for a lease of premises. The appellant sought specific performance of this alleged agreement and also claimed damages for misleading or deceptive conduct.

The central legal issues before the Court of Appeal were whether a concluded agreement for a lease for a new term of 10 years had arisen from correspondence between the parties, and if so, whether it was sufficiently certain in its terms, particularly regarding rent. The court also had to consider whether the respondent had complied with the requirements of section 19 of the *Sydney Harbour Foreshore Authority Act*, which mandates Ministerial consent for leases exceeding five years, and whether any such consent had been obtained or was capable of being obtained. Furthermore, the appeal involved a challenge to the primary judge's findings on claims of misleading or deceptive conduct and loss of opportunity under the *Trade Practices Act*.

The Court of Appeal, comprising Macfarlan, Gleeson and Leeming JJA, dismissed the appeal. The court reasoned that no concluded agreement for a lease had been formed because essential terms, including the initial rent, rent reviews, and turnover rent, had not been agreed upon, rendering the purported agreement insufficiently certain. The court also found that the requirements of section 19 of the *Sydney Harbour Foreshore Authority Act* had not been met, and that the circumstances did not support an implied term that the parties would do all reasonable things to obtain Ministerial consent, nor that the grant of the lease was merely subject to such consent. Regarding the misleading or deceptive conduct claims, the court upheld the primary judge's findings, concluding that the appellant had not established that the respondent had made misleading representations or that the appellant had relied on any non-disclosure to its detriment.

Consequently, the appeal was dismissed, and the appellant was ordered to pay the respondent's costs of the appeal.