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Robinson v Young

Robinson v Young

Case [2005] NSWSC 777 2 August 2005

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CITATION:
Robinson v Young [2005] NSWSC 777

HEARING DATE(S): 29. 30 June, 1 and 19 July 2005

JUDGMENT DATE :

2 August 2005

JUDGMENT OF:
Smart AJ at 1

DECISION:
See paras 88 and 89

CATCHWORDS:
Use of 5 car parking spaces at rear of shop - 1997 lease gave tenant right to occupy by an annexed document - exercise of option to renew - document stated to be annexed to 2002 lease but not annexed - whether contents incorporated - lessors sell property - if document not incorporated rectification would have been granted against lessor- whether rectification should be granted against purchaser - whether it had notice of lessee's equity

LEGISLATION CITED:
Conveyancing Act, 1919
Real Property Act

CASES CITED:
Barnhart v Greenshields (1854) 9 Moo PC C 32, 14 ER 204
Bates (Thomas) & Son Pty Ltd v Wyndhams (Lingerie) Ltd 1981 1 WLR 505
Black v British American Tobacco Australia Services Ltd [2005] NSWSC 241
Codelfa Constructions (1982) 149 CLR 337
Coolibah Pastoral Co v The Commonwealth & Anor (1967) 11 FLR 173
Latec Investments Ltd v Hotel Terrigal Pty Ltd (In Liquidation) (1965) 113 CLR 265
LKT v Chun (2004) NSWSC 820
Longtom Pty Limited v Oberon Shire Council (1996) Butterworths Conv R p 14799
Lyons v Imperial Land & Buildings C. (1894) 15 NSWLR (Eq) 64
Manly Council v Byrne & Anor (2004 NSWCA 1123 per Campbell J)
Misiaris & Anor v Saydels Pty Ltd (1989) NSW Conv R 55-474
Muschinski v Dodds (1985) 160 CLR 583
Ong & Anor v Luong & Anor (1991) NSW Conv R 55.597
Pagano & Anor v Cama (1995) NSW Conv R 55-755
Ryan v Starr & Ors [2005] NSWSC 170
Smith v Jones 1954 2 All ER 823
Taylor & Ors v Johnson (1983) 151 CLR 422
Walton Stores (Interstate) Ltd v Maher & Anor (1988) 164 CLR 387

PARTIES:
Frank Herbert Robinson & Geoffrey Lee Hilzinger v Gregory John Young
Gregory John Young v Frank Herbert Robinson & Geoffrey Lee Hilzinger
Nasser Holdings Pty Ltd v Robinson, Hilzinger & Young

FILE NUMBER(S):
SC 2819/05

COUNSEL:
I Wales SC for plaintiffs
M Bradford for 1st defendant/cross-claimant
G A Moore for 3rd cross-claimant
(2nd cross-claim` settled)

SOLICITORS:
Pltfs: Brennan Tipple Partners
1st deft/1st cross-claimant: Alex Ilkin & Co
3rd cross-claimant: Jacovou & Co

LOWER COURT JURISDICTION:

SMART AJ

Tuesday, 2 August 2005

2819/05:

ROBINSON & HILZINGER v YOUNG

YOUNG v ROBINSON & ANOR (1st cross-claim)
NASSER HOLDINGS PTY LTD v ROBINSON, HILZINGER & YOUNG (3rd cross-claim)

JUDGMENT
1. These proceedings arise out of a lease of lockup shop premises at 17 Morts Road, Mortdale, from Geoffrey Lee Hilzinger, the executor of the will of Harry Bertram Woodward and Helen Jean Robinson to Gregory Young (in the proceedings called Gregory John Young) for a period of five years commencing 1 June 2002 with an option to renew for a period of five years at a yearly rental of $41,712, subject to review in later years (the 2002 lease).

2. 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.

Continue reading Robinson v Young

Details

AGLC: Robinson v Young [2005] NSWSC 777
Case: [2005] NSWSC 777
Decision Date: 2 August 2005

CaseChat Overview and Summary

In Robinson v Young, the dispute revolved around the use of five car parking spaces at the rear of a shop. The original 1997 lease between Robinson and Young included an annexed document granting the tenant, Robinson, the right to occupy the parking spaces. When the lease was renewed in 2002, the document was referenced but not physically annexed to the lease. The question arose whether the contents of the document were incorporated into the 2002 lease and whether the purchaser of the property could be bound by this omission. The court had to decide if rectification should be granted against the purchaser and whether the purchaser had notice of the lessee's equity.

The legal issues before the court included whether the annex to the 1997 lease was incorporated into the 2002 lease and if rectification could be granted against the purchaser who was unaware of the lessee's equity. The court needed to determine if the purchaser was bound by the terms of the annex despite it not being physically annexed to the 2002 lease and whether the purchaser had constructive notice of the lessee's rights. The court also considered the principle of rectification in equity and its applicability to the purchaser.

The court held that the annex to the 1997 lease was intended to be incorporated into the 2002 lease but was not physically annexed. The court found that rectification could be granted to correct the omission in the 2002 lease. However, the court held that the purchaser, who was unaware of the lessee's equity, should not be bound by the rectification. The court reasoned that the purchaser was not bound by the lessee's equity as the purchaser had no actual or constructive notice of it. Consequently, the purchaser was not required to grant rectification against them. The court ordered that the 2002 lease should be rectified to include the annex, but this rectification was only to be against the original lessor, not the subsequent purchaser.

This decision highlights the importance of proper documentation in lease agreements and the implications for subsequent purchasers who may not be bound by undisclosed equities. The court's approach ensures that parties are protected according to the notice they have of certain rights, while also recognising the need for rectification in cases of clear omissions.

Orders