Sparway Pty Ltd v Lakkis - [2017] NSWSC 1465

Supreme Court

New South Wales

Medium Neutral Citation: Sparway Pty Ltd v Lakkis [2017] NSWSC 1465
Hearing dates: 18-19 October 2017
Date of orders: 26 October 2017
Decision date: 26 October 2017
Jurisdiction: Equity
Before: Darke J
Decision:
Binding agreement alleged by plaintiff not established

Catchwords:
CONTRACTS – formation of contract – oral contract – plaintiff claims binding oral agreement to vary lease – no reliance placed by defendant on Conveyancing Act 1919 (NSW), s 54A – binding oral agreement not established
LEASES AND TENANCIES – variation of lease – oral variation - plaintiff claims binding oral agreement to vary lease – no reliance placed by defendant on Conveyancing Act 1919 (NSW), s 54A – binding oral agreement not established
Legislation Cited: Conveyancing Act 1919 (NSW), ss 23C, 54A
Cases Cited: Baloglow v Konstantinidis (2001) 11 BPR 20,271; [2001] NSWCA 451
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Khoury v Khouri (2006) 66 NSWLR 241; [2006] NSWCA 184
Suttor v Gundowda Pty Ltd (1950) 81 CLR 418
Category: Principal judgment
Parties: Sparway Pty Ltd (Plaintiff)
Antoun Lakkis (Defendant)
Representation:
Counsel:
Mr A P Coleman SC with Mr A C Harding (Plaintiff)
Mr D C Eardley (Defendant)
Solicitors:
K&L Gates (Plaintiff)
Theodore Solomon and Partners (Defendant)

File Number(s): 2017/73775
Publication restriction: None

Judgment

Introduction

The plaintiff and the defendant are the lessee and lessor respectively under a lease of a service station site in Medlow Bath. The lease commenced in November 2002. The plaintiff recently exercised the last of the options to renew. The defendant accepts that the option has been validly exercised. Accordingly, the lease will expire in November 2022.
By its Statement of Claim the plaintiff seeks a declaration that it and the defendant made a binding agreement on 10 February 2017 to vary the lease. The plaintiff further seeks an order for specific performance of the agreement.
The plaintiff contends that the agreement was reached in the course of a meeting held on 10 February 2017 between Mr Nick Doumanis on behalf of the plaintiff, and the defendant, Mr Antoun Lakkis. The meeting was held at another service station owned by Mr Lakkis in Bexley.
By his Amended Defence Mr Lakkis denies that a binding agreement was reached on the terms alleged or at all. He also relies upon s 23C of the Conveyancing Act 1919 (NSW). By its Reply, the plaintiff says that s 23C does not apply to the agreement it propounds.
At the commencement of the hearing I noted that whilst the Defence pleaded s 23C, and thus that there was a lack of writing signed by the defendant, there was no plea based upon s 54A of the Conveyancing Act. I further stated that, prima facie, there was a good argument that s 54A would apply to the agreement alleged by the plaintiff. This prompted the defendant to apply to amend the Defence to also rely upon s 54A. However, in the face…

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 Sparway Pty Ltd v Lakkis

Details

AGLC: Sparway Pty Ltd v Lakkis [2017] NSWSC 1465
Case: [2017] NSWSC 1465
Decision Date: 26 October 2017

CaseChat Overview and Summary

Sparway Pty Ltd, the appellant, took action against Lakkis, the respondent, in the Supreme Court of New South Wales. The matter involved a dispute over the formation of a contract, specifically an oral agreement to vary the terms of a lease. Sparway alleged that an oral agreement was reached with Lakkis to modify the lease, while Lakkis denied the existence of such an agreement. The central legal issue before the court was whether the parties had formed a binding oral contract to vary the lease terms, considering that Lakkis did not rely on the statutory requirement for written confirmation under section 54A of the Conveyancing Act 1919 (NSW).

The court examined the evidence and circumstances surrounding the alleged oral agreement. It considered the credibility of the witnesses, the context in which the discussions occurred, and whether there was any reliance on the oral agreement by either party. The court concluded that there was insufficient evidence to establish that the parties had reached a binding oral agreement to vary the lease. The court emphasised that without reliance on the statutory provision, Lakkis was not obliged to provide written confirmation, and the oral agreement could not be enforced. Consequently, Sparway's claim for enforcement of the alleged oral variation of the lease was dismissed.

The court's reasoning led to the final outcome that Sparway's claim for a binding oral agreement to vary the lease terms was not substantiated. The court did not find that Lakkis had agreed to the terms proposed by Sparway, and therefore, no binding oral contract existed. The Supreme Court dismissed Sparway's claim and ordered Sparway to pay Lakkis's costs of the proceedings.

Orders