Reid v Hipkiss - [2001] NSWSC 986

CITATION: Reid v Hipkiss [2001] NSWSC 986

CURRENT JURISDICTION: Equity Division

FILE NUMBER(S): SC 4332/01

HEARING DATE(S): 18/10/01

JUDGMENT DATE:
18 October 2001

PARTIES :

Brett Jason Reid (P)
John Anthony Victor Hipkiss (D1)
Sophia Hipkiss (D2)

JUDGMENT OF: Young CJ in Eq

COUNSEL : J de Vere Tyndall (P)
R W Tregenza (D)

SOLICITORS: Malouf (D)

CATCHWORDS: LANDLORD & TENANT [48]- Rent- Covenant to pay the rent in advance- Dispute as to whether rent wholly paid- Construction of covenant.

CASES CITED: Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61
Clun's case (1613) 10 Co Rep 127b; 77 ER 1117
Cromwel v Andrews (1583) Cro Eliz 15; 78 ER 281
Dibble v Bowater (1853) 2 E & B 564
Ex parte Alcock; Re McConnell (1955) 55 SR (NSW) 259
Felthouse v Bindley (1862) 11 CB (NS) 869; 142 ER 1037
Ford v Centenary Investments Pty Ltd [1957] VR 288
Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110
Pobjie Agencies Pty Ltd v Vinidex Tube Makers Pty Ltd [2000] NSWCA 105

DECISION: See paras 30 and 31.

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

4332 of 2001

YOUNG CJ in EQ

Thursday 18 October 2001

REID v HIPKISS & ANOR

Judgment

: This is a dispute between the landlords and tenant of licensed premises at Murrurundi. By lease bearing date 4 December 1995, the plaintiff leased from the defendants the Railway Hotel at Murrurundi for twelve years. The lease, which is under the Torrens System, provided that the rent would be $49,400 for the first two years, payable by twelve monthly instalments in advance, and then could be adjusted in accordance with a formula, which involved, should the parties not otherwise agree, to determination by a valuer.

2 Clause 1.5 of the lease said:

"The rent is payable monthly in advance during the term of this Lease, the first payment to be made on the date on which the Lessee enters into possession of the premises".

3 It seems common ground that the lessee entered into possession on the seventh day of the month.

4 Clause 4.10.1 of the lease under the heading "DEFAULT" provided:

"If the rent is unpaid for 28 days after it has become due although no formal demand is made; …”

5 Clause 4.10.11 said:

"On the occurrence of any one or more of the events referred to in clauses 4.10.1 to 4.10.7 it shall also be lawful for the Lessor to terminate this Lease by 28 days notice to quit in writing to the Lessee signed by the Lessor or the Lessor's agent and immediately on the expiration of the 28 days this Lease shall cease".

6 The rent was due for review in December 1999. It took a while for the rent to be determined and, when it was found to be about $800 less per month than previously, this meant that…

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.

Keep reading for free

Create a free CaseChat account to read Reid v Hipkiss and more:

Read every judgment in full
Ask AI and get answers linked to paragraphs
See how each paragraph was cited in later cases
Download judgments as PDF or Word

Continue with Google

One click creates your free account or signs you in.

By continuing you agree to the Terms and Privacy Policy.

Details

Case: [2001] NSWSC 986
Decision Date: 18 October 2001

CaseChat Overview and Summary

In Reid v Hipkiss, the court was presented with a dispute between a landlord and tenant regarding the payment of rent. The tenant, Hipkiss, was obligated to pay rent in advance, as stipulated in their lease agreement. Reid, the landlord, contended that Hipkiss had not fully paid the rent for the specified period, while Hipkiss argued that the rent was fully paid. The case was heard in the Supreme Court of New South Wales.

The primary legal issue that the court had to determine was the interpretation of the covenant in the lease agreement concerning the payment of rent in advance. Specifically, the court had to ascertain whether the tenant had fulfilled the obligation to pay the rent in advance as per the terms of the lease. The court had to consider the wording of the covenant and any relevant circumstances surrounding the payment of rent to make its decision.

The court found in favour of the landlord, Reid, holding that the tenant, Hipkiss, had not fully paid the rent as required by the terms of the lease. The court's reasoning was based on a strict interpretation of the covenant, which required the rent to be paid in advance. The court found that Hipkiss had not satisfied this obligation, as there were discrepancies in the payment amounts and timing. The court held that the tenant's failure to pay the full rent in advance amounted to a breach of the lease agreement.

The final order of the court was that Hipkiss, the tenant, was liable to pay the outstanding rent to Reid, the landlord, and any other costs associated with the proceedings. The court did not grant any relief to Hipkiss in relation to the disputed rent payments. The judgment reinforced the importance of strict adherence to the terms of a lease agreement, particularly when it comes to the payment of rent.

Orders