Universal Roofing and Accessories Pty Ltd v Singh

[2004] NSWSC 32

CITATION:	Universal Roofing and Accessories Pty Ltd v Singh [2004] NSWSC 32
HEARING DATE(S):	02/02/04
JUDGMENT DATE:	2 February 2004
JURISDICTION:	Equity Division
JUDGMENT OF:	Young CJ in Eq
DECISION:	Application for interlocutory injunction declined.
CATCHWORDS:	EVIDENCE [96]- Privilege- Without prejudice correspondence- Admitted as basis of estoppel or election- Evidence Act 1995, s 131(2)(i). LANDLORD & TENANT [23]- Option to renew- Form of exercise- Written notice necessary.
LEGISLATION CITED:	Evidence Act 1995, s 131(2)(i)
CASES CITED:	New Hart Builders Ltd v Brindley [1975] Ch 342 R v Shurmer (1886) 17 QBD 323 Tsaoucis v Gallipoli Memorial Club Ltd (No 1) (1998) 9 BPR 16265; (1998) 9 BPR 16275 (C/A) Wilson v Nightingale (1846) 8 QB 1034; 115 ER 1163
PARTIES :	Universal Roofing and Accessories Pty Limited (P1) Sayed Mouawad (P2) Gurumeet Rattan Singh (D1) Kateryna Singh (D2)
FILE NUMBER(S):	SC 1049/04
COUNSEL:	M Sahade (S) (P) J Oakley (D)
SOLICITORS:	Marcel Sahade (P) Osborne Bricknell Howell (D)

IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

YOUNG CJ in EQ

Monday 2 February 2004

1049/04 – UNIVERSAL ROOFING & ACCESSORIES PTY LTD v GURUMEET RATTAN SINGH

JUDGMENT

1 HIS HONOUR: This is an interlocutory application for an injunction made by the lessee of property at 39 Bore Street Silverwater.

2 The applicant was granted a lease for three years from 1 July 2000 terminating on 30 June 2003 with an option to renew for two periods of three years.

3 The schedule to the lease showed that the relevant extension period was from 1 July 2003 to 30 June 2006 and that the first day the option for renewal could be exercised was 1 January 2003, and the last day the option for renewal could be exercised was 31 March 2003.

4 Clauses 4.3 and 4.4.1 read as follows:

"4.3 The tenant can renew this lease more than once if that is stated in Item 11B in the schedule ... .
4.4 The tenant can exercise the option only if -
4.4.1 - the tenant serves on the landlord a notice of exercise of option not earlier than the first day stated in Item 11D in the schedule and not later than the last day stated in Item 11E in the Schedule ... ."

5 No notice in writing was given within the prescribed period, however there is evidence that within the period an oral notification was given by the tenant to the landlord that it desired to renew the lease.

6 At the moment I am trying an interlocutory application, that is I have begged to decide whether there is a strongly arguable or prima facie case and where the balance of convenience lies.

7 Mr Sahade, who appears for the plaintiff, says that it is very significant that in the lease there are copious references to notices in writing. He instances 5.13, 8.24, 9.2, 12.2, 12.4.4, and I think about half a dozen others. He also has argued that the standard form of lease in this State always makes it explicit that the exercise is to be in writing. He calls in aid the contra proferentum rule that this is a document which was prepared by the landlord and should be construed against the landlord, and the expressio unius rule which shows when in some clauses of a lease the words "in writing" are used and in others they are not, then one might infer that in those others the notice may not need to be in writing. He also has taken me to some basic principles of contract law.

8 However, in this particular area the whole flow of the authorities is that a notice under this sort of lease to be served needs to be in writing. I decided this in Tsaoucis v Gallipoli Memorial Club Ltd (No 1) (1998) 9 BPR 16265 which was affirmed by the Court of Appeal in (1998) 9 BPR 16275. That finding was certainly nothing novel, it follows from the decision of Goulding J in New Hart Builders Ltd v Brindley [1975] Ch 342 and the other authorities as set out in the Third Edition of my annotated Conveyancing and Real Property Legislation at page 297.

9 Indeed, the use of the word "served" in cl 4.4.1 itself implies that the notice is to be in writing: Wilson v Nightingale (1846) 8 QB 1034; 115 ER 1163 and R v Shurmer (1886) 17 QBD 323.

10 Despite Mr Sahade putting forward all the arguments that could be put the other way, I am not convinced that there is a prima facie case that the option has been properly exercised.

11 There was also an evidentiary point involved in this case. After the alleged exercise of option there were a series of "without prejudice" correspondence between the tenants legal representatives and the landlord's legal representatives. Miss Oakley for the landlord said that these would not have been written had the tenant exercised the option because the tenant already would have had an equitable lease.

12 Mr Sahade took the objection under s 131 of the Evidence Act to the admissibility of these without prejudice letters. I admitted them under the exception in s 131(2)(i) on the basis that they were the making of a communication which affected the right of a person, and it seemed to me that this material which was being put forward as grounding an argument of estoppel or election was in the same plight as many of the examples cited in Mr Odgers useful book on the annotated Evidence Act. However, because no prima facie case has been made out, this matter had no significance in the ultimate. Accordingly I decline to grant the interlocutory injunction. The injunction accordingly will expire at 5 pm tonight as granted by the duty judge during vacation.

13 I give leave to the defendant to file in court a cross-claim for possession.

14 I stand the matter over to the Registrar's list on 10 February at 9.30 am.

15 The plaintiff is to pay the costs of the interlocutory application.

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Last Modified: 02/10/2004