TOURWEST (Australia) Pty Ltd v Grand Central International Management(S) Pte Ltd
[2000] WASC 241
•6 OCTOBER 2000
TOURWEST (AUSTRALIA) PTY LTD -v- GRAND CENTRAL INTERNATIONAL MANAGEMENT(S) PTE LTD [2000] WASC 241
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2000] WASC 241 | |
| Case No: | CIV:1482/2000 | 25 AUGUST 2000 | |
| Coram: | SCOTT J | 6/10/00 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Defendant's application for summary judgment dismissed Plaintiff's application for extension of injunction granted | ||
| PDF Version |
| Parties: | TOURWEST (AUSTRALIA) PTY LTD (ACN 072 204 098) GRAND CENTRAL INTERNATIONAL MANAGEMENT(S) PTE LTD (ARBN 078 747 494) |
Catchwords: | Landlord and tenant Summary judgment Interlocutory injunction Lease Option to renew Oral exercise of option not in accordance with lease Equity Turns on own facts |
Legislation: | Rules of the Supreme Court, O 16 r 1 |
Case References: | Francourt v Mercantile Credit (1983) 154 CLR 87 Giumelli v Giumelli [1999] HCA 10 Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641 Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148 Hawkesdale Nominees Pty Ltd v Honda Australia Pty Ltd, unreported; FCt SCt of WA; Library No 8337; 22 June 1990 Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989 Moscow Narodny Bank Ltd v Mosbert Finance (Australia) Pty Ltd [1978] WAR 109 MV Yorke Motors v Edwards [1982] 1 ALL ER 1024 Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 7 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Plaintiff
AND
GRAND CENTRAL INTERNATIONAL MANAGEMENT(S) PTE LTD (ARBN 078 747 494)
Defendant
Catchwords:
Landlord and tenant - Summary judgment - Interlocutory injunction - Lease - Option to renew - Oral exercise of option not in accordance with lease - Equity - Turns on own facts
Legislation:
Rules of the Supreme Court, O 16 r 1
Result:
Defendant's application for summary judgment dismissed
Plaintiff's application for extension of injunction granted
(Page 2)
Representation:
Counsel:
Plaintiff : Mr A C Thorpe
Defendant : Mr N G Pakes
Solicitors:
Plaintiff : A C Thorpe
Defendant : Murcia & Associates
Case(s) referred to in judgment(s):
Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87
Giumelli v Giumelli [1999] HCA 10
Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641
Case(s) also cited:
Castlemaine Tooheys Ltd v State of South Australia (1986) 161 CLR 148
Hawkesdale Nominees Pty Ltd v Honda Australia Pty Ltd, unreported; FCt SCt of WA; Library No 8337; 22 June 1990
Lewkowski v Bergalin Pty Ltd, unreported; FCt SCt of WA; Library No 7675; 26 May 1989
Moscow Narodny Bank Ltd v Mosbert Finance (Australia) Pty Ltd [1978] WAR 109
MV Yorke Motors v Edwards [1982] 1 ALL ER 1024
Westwind Air Charter Pty Ltd v Hawker De Havilland Ltd (1990) 3 WAR 7
(Page 3)
1 SCOTT J: Two applications came before this Court on 25 August 2000. The first was an application by the defendant for summary judgment pursuant to O 16 r 1 of the Rules of the Supreme Court and the second an application by the plaintiff for the continuation of an injunction granted by this Court on 30 April 2000.
2 The two applications are interlinked but it was agreed that once the summary judgment application was resolved, the injunction application would follow.
3 The matter arises out of a lease of premises in the Hotel Grand Chancellor in Wellington Street, Perth. The plaintiff is the lessee of those premises from which it operates a tour business. The defendant is the lessor.
4 The lease between the plaintiff and the defendant, stamped on 11 January 2000 provided for an initial term of one year commencing on 1 May 1999, together with an option for a further term of four years. The option is contained in cl 34 of the lease which provides:
"34 Option to renew
If:
(a) the tenant at least six months but not earlier than nine months prior to the date for commencement of a further term gives the landlord notice to grant the further term; and
(b) there is no subsisting default by the tenant at the date of service of the notice and at termination in:
(i) the payment of the money payable; or
(ii) the performance or observance of the tenant's covenants;
the landlord shall grant the tenant that further term at the rent and on the terms and conditions of this lease excepting any further term which has been exercised by the tenant."
"43 Notice
(Page 4)
- Any notice, demand or application required to be given by either party to the other pursuant to the terms of this lease:
(a) must be in writing; and
(b) may, without prejudice to any other mode of delivery, be:
(i) delivered to the other party personally;
(ii) left at the address or sent by prepaid post addressed to the other party to the address. Any notice sent by post shall be deemed to have been served 48 hours after it has been posted. If, in the case of service by leaving the notice at the address, the notice is served on a Saturday, Sunday or public holiday or after 5.00 pm then it will be deemed to be given or made on the next following day which is not a Sunday, Saturday or public holiday; or
(iii) sent by facsimile to the facsimile number of the addressee party if the addressee party notifies a facsimile number for the purpose of receiving notices."
7 The defendant disputes that any such conversation occurred or that it was ever advised by the plaintiff of the exercise of the option and contends that in any event oral notice of the exercise of the option was not sufficient to comply with the requirements of cl 43 of the lease, set out earlier in these reasons.
(Page 5)
8 The central issue that falls for consideration at this stage of the proceedings is whether if the evidence to be called for the plaintiff is accepted, the oral exercise of the option could be effective in law. The defendant maintains that it is entitled to summary judgment because the oral exercise of the option is not sufficient in law to make it effective so that in any event the plaintiff's claim must fail. The plaintiff, on the other hand, contends that the oral exercise of the option is sufficient in law for equity to protect the plaintiff against eviction proceedings threatened by the defendant.
9 At this stage of the proceedings, it is not, of course, necessary to make any final determination of the issues. The question is whether the plaintiff has an arguable case against the defendant so as to sustain the injunction which prevents the defendant from evicting the plaintiff: Fancourt v Mercantile Credit Ltd (1983) 154 CLR 87 at 99.
10 The plaintiff also contends that at the time that the verbal notice was given to exercise the option, it was not in possession of a copy of the final lease because the defendant had not forwarded a copy to it. The defendant, on the other hand, maintains that the plaintiff had been provided with a copy of the draft lease and that the reason why the plaintiff was not provided with the lease in its final form was that the plaintiff had failed to pay certain expenses which the plaintiff was obliged to pay under the contractual arrangement between the parties. Again, it is not necessary to descend into detail on that issue for the purposes of these reasons.
11 In addition, the plaintiff also contends that estoppel would come to its aid in that when the defendant's agent was advised that the plaintiff was exercising the option of renewal, the defendant's agent did not advise the plaintiff of the need to give notice in writing and thus led the plaintiff to continue in its business in the expectation that the lease-hold arrangement between the parties would continue. Thus it is contended the defendant is estopped from relying upon the written notice provision in the lease set out earlier in these reasons.
12 Whilst it would be inappropriate for me to express any concluded opinion on the issues between the parties, on balance it does seem that the plaintiff has an arguable case: see Giumelli v Giumelli [1999] HCA 10 per Gleeson CJ, McHugh, Gummow, Kirby and Callinan JJ, at [2] and [35] and Grundt v Great Boulder Gold Mines Ltd (1937) 59 CLR 641 at 674-675 per Dixon J.
(Page 6)
13 For these reasons I have come to the conclusion that the defendant's application for summary judgment should be refused and that the injunction in favour of the plaintiff granted on 30 April 2000 and extended by Miller J on 5 May 2000, should be continued on the same terms and conditions until trial.
14 The defendant's application for summary judgment will be dismissed.
15 I would add that to grant the defendant the orders which it seeks would have the effect of terminating the lease and depriving the plaintiff of any rights which it may have in relation to the option.
16 The defendant's interests are best served by bringing this action on for trial expeditiously.
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