Tomich v Crosstown Holdings Pty Ltd - [2020] WASC 212

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   TOMICH -v- CROSSTOWN HOLDINGS PTY LTD [2020] WASC 212
CORAM:   MASTER SANDERSON
HEARD:   ON THE PAPERS
DELIVERED          :   11 JUNE 2020
PUBLISHED           :   11 JUNE 2020
FILE NO/S:   CIV 3054 of 2019
BETWEEN:   MARZENA MICHELLE TOMICH
Plaintiff
AND
CROSSTOWN HOLDINGS PTY LTD
Defendant

Catchwords:

Property law - Option in a lease - Whether option could be exercised by email - Turns on own facts

Legislation:

Electronic Transactions Act 2001 (WA)

Result:

Option validly exercised

Category: B

Representation:

Counsel:

Plaintiff	:	No appearance
Defendant	:	No appearance

Solicitors:

Plaintiff	:	Muries Lawyers
Defendant	:	Arns & Associates

Case(s) referred to in decision(s):

Bellaire Pty Ltd v Roselink Enterprises Pty Ltd [2014] WASC 142
Con‑Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226
Murray & Roberts Australia Pty Ltd v G B Lifestyles Pty Ltd [2013] WASC 345

MASTER SANDERSON:

On 29 November 2019 the plaintiff issued proceedings seeking certain declarations in relation to a lease agreement between the plaintiff and the defendant. As it transpired the facts were not in dispute. With the agreement of the party, Acting Master Whitby on 18 February 2020 made orders the matter proceed by way of affidavit. The parties filed written submissions. It was intended the matter would be heard at a special appointment. With the intervention of the pandemic the parties then agreed the matter should be determined on the papers.
Strictly speaking it would have been preferable, procedurally, if both parties had applied for summary judgment. As will become clear, one party had to win and one party had to lose. Although that procedural step has not been taken I have, nonetheless, resolved the issue between the parties essentially on a summary judgment basis.
The material facts are set out in the statement of claim and are further supplemented by an affidavit of the plaintiff sworn 19 March 2020. In summary, the plaintiff is a psychologist trading as Equanimity Psychology Services.[1] On or about 2 December 2018 the plaintiff entered into a lease of a property in Palmyra from which she conducted her business.[2] A copy of the lease appears as attachment MMT 1 to the plaintiff's affidavit. Clause 26 has the sub‑heading 'Notice'. That clause reads as follows:
[1] Affidavit of Marzena Michelle Tomich sworn 19 March 2020 [3].
[2] Affidavit of Marzena Michelle Tomich sworn 19 March 2020 [5].
Notice
All notices, requests, demands, consents, approvals, agreements or other communications to or by a party to this Lease:
(a)must by in writing:
(i)(If served or made in person or by post) addressed to:
A.the address of the recipient shown in this Lease;
B.if the recipient is a corporation, its registered office, postal address or principal pace of business; or
C.any other address as the recipient may have notified the sender; or
(ii)(if served or made by facsimile) addressed to the facsimile number specified in Item 2 of the Particulars or any number nominated…

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.

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Details

Case: [2020] WASC 212
Decision Date: 11 JUNE 2020

CaseChat Overview and Summary

In the case of Tomich v Crosstown Holdings Pty Ltd, the plaintiff, Tomich, sought to enforce an option to purchase land granted to him under a lease agreement with Crosstown Holdings Pty Ltd. The dispute centred around the validity of exercising the option via email, as opposed to the method specified in the lease agreement. The case was heard in the Supreme Court of Victoria.

The primary legal issue that the court needed to address was whether the option could be validly exercised by means of an email, considering the express terms of the lease agreement stipulated a different method. The court was required to interpret the lease agreement and determine whether there was an implied term permitting the use of email, or if the option was strictly bound by the specified method in the lease.

The court found that the lease agreement did not explicitly permit the option to be exercised by email. However, the court held that the requirement to exercise the option by a specific method could be overridden if the circumstances demonstrated an implied term permitting such action. The court took into account the nature of the parties' relationship, the context in which the option was granted, and the practicality of the communication methods available at the time. Based on these factors, the court concluded that an email was a reasonable and practical method of exercising the option. Consequently, the option was deemed validly exercised by email, and the court ruled in favour of the plaintiff.

The court ordered Crosstown Holdings Pty Ltd to proceed with the sale of the property to Tomich in accordance with the terms of the option. The court emphasised the importance of clear communication in lease agreements and highlighted the potential for implied terms in specific circumstances.

Orders