Toga Pty Limited v Perpetual Nominees Limited and CFS Managed Property Limited

Toga Pty Limited sought a declaration of rights and liabilities under section 72(1)(f)(iii) of the Conveyancing Act 1919 (NSW) and rectification of the Option Lease from Perpetual Nominees Limited and CFS Managed Property Limited. The dispute centred on the interpretation of the Option Lease, particularly whether the option to purchase was exercisable and the rights and obligations of the parties post-exercise. The case was heard in the Supreme Court of New South Wales, Equity Division.

The primary legal issue was the interpretation and construction of the Option Lease and whether the option to purchase was validly exercised. The court also had to consider whether the option was conditional upon the payment of certain fees and whether the Jones v Dunkel inference applied to the exercise of the option. Additionally, the court needed to determine the rectification of the lease and the powers of the Tribunal under sections 70 and 72 of the Conveyancing Act.

The court held that the option to purchase was exercisable, and the condition regarding the payment of certain fees was not a valid condition precedent. The court applied the Jones v Dunkel inference to the conduct of the parties, finding that the option had been effectively exercised. The court also granted the rectification of the lease to reflect the true intentions of the parties. The powers of the Tribunal under sections 70 and 72 of the Conveyancing Act were affirmed, and the court found that the Tribunal had the authority to make the necessary declarations and orders.

The final orders of the court were that the Cross Applicants were granted leave to file the amended Cross Application. The Applicant was required to pay the Respondent the Annual Rent and the Lessee's Contributions from 13 November 2010 to 12 November 2011 under the Option Lease that came into existence upon exercise of the option in the Sublease. There was no order as to costs, but the parties were at liberty to make written submissions within 28 days.