Young v Lamb - [2000] NSWSC 733

CITATION: Young v Lamb [2000] NSWSC 733

CURRENT JURISDICTION: Equity

FILE NUMBER(S): SC 5096/98

HEARING DATE(S): 15, 16 June 2000

JUDGMENT DATE: 27 July 2000

PARTIES :

Robert Francis Patrick Young (P)
Kenneth John Lamb (D1)
Louise Ann Lamb (D2)
William Thomas Newell (D3)
Dianne Margaret Newell (D4)

JUDGMENT OF: Austin J

COUNSEL : M Heath (P)
R Colquhoun (D)

SOLICITORS: Button Hawdon & McMahon (Batemans Bay) (P)
Daryl Hurst (Moruya) (D)

CATCHWORDS: CONTRACT - construction - principles applicable to construction of option to renew lease PARTNERSHIP - ss 5 & 6 of Partnership Act do not authorise a partner to exercise an option to renew a lease of the premises in which the partnership business is conducted REAL PROPERTY - lease - option to renew - letter stating 'intention to exercise' held not be an exercise of the option - service of letter on managing agent held not to be service on lessor for purposes of option clause

LEGISLATION CITED: Conveyancing Act 1919 (NSW) s 170
Partnership Act 1892 (NSW) ss 5 & 6
Property Stock & Business Agents' Act 1941 (NSW) ss 42 & 42AA

CASES CITED: Ballas v Theophilos (No 2) (1958) 98 CLR 193
Ballas v Theophilos [1958] VR 576
Bava Holdings Pty Ltd v Pando Holdings Pty Ltd (1998) NSW ConvR para 55-862
Blackler v Felpure Pty Ltd (Supreme Court of New South Wales, unreported, Bryson J, 24 September 1999)
Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600
Brennan v Kinjella Pty Ltd (1993) 6 BPR 13
Carter v Hyde (1923) 33 CLR 115
Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
Construction Engineering (Aust) Pty Ltd v Hexyl Pty Ltd (1984) 155 CLR 541
Drinkwater v Caddyrack Pty Ltd (Supreme Court of New South Wales, unreported, Young J, 25 September 1997)
Hexyl Pty Ltd v Construction Engineering (Aust) Pty Ltd [1983] 2 NSWLR 624
Lolly Pops (Harbourside) Pty Ltd v Werncog Pty Ltd (1998) NSW ConvR para 55-861
Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673
Quadling v Robinson (1976) 137 CLR 192
Setena Pty Ltd v Permanent Trustee Nominees (Canberra) Ltd (Supreme Court of New South Wales, unreported, McLelland J, 28 October 1986)
Tsaoucis v Gallipoli Memorial Club Limited (1998) NSW ConvR para 55-860

DECISION: Proceedings dismissed

THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION

AUSTIN J

THURSDAY 27 JULY 2000

5096/98 - ROBERT FRANCIS PATRICK YOUNG V KENNETH JOHN LAMB & ORS

JUDGMENT

1 HIS HONOUR: The plaintiff is the registered proprietor of premises at Unit 15, Capital Coast Centre, Queen Street, Moruya. He granted the defendants a registered lease of the premises for three years commencing 1 November 1995, with an option to renew for a further period of three years. The lessees were the first and second defendants as joint tenants as to a one half share, and the third and fourth defendants as joint tenants as to the other half share.…

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 Young v Lamb

Details

AGLC: Young v Lamb [2000] NSWSC 733
Case: [2000] NSWSC 733
Decision Date: 27 July 2000

CaseChat Overview and Summary

In the Supreme Court of Queensland, Young and Lamb were involved in a dispute regarding an option to renew a lease. The partnership, of which both Young and Lamb were members, occupied premises under a lease that contained an option to renew on terms to be agreed. The option could be exercised by giving written notice to the lessor. The partnership intended to exercise the option, and Young sent a letter to the managing agent stating the intention to exercise the option. The dispute arose when the lessor argued that the notice was invalid, and subsequently terminated the lease.

The central legal issues before the court were whether the option to renew could be exercised by a partner under sections 5 and 6 of the Partnership Act, and whether the notice sent by Young to the managing agent constituted proper service on the lessor for the purposes of the option clause in the lease. The court had to determine whether the partnership was entitled to renew the lease and if the notice was effective in exercising that right.

The court held that under sections 5 and 6 of the Partnership Act, a partner could not exercise an option to renew a lease of the premises in which the partnership business was conducted. This was because the option to renew related to the property and not the partnership itself. The court further found that the notice sent by Young to the managing agent was not equivalent to notice to the lessor, as required by the option clause in the lease. The clause stipulated that notice must be given directly to the lessor, and service on a managing agent did not fulfil this requirement.

As a result, the court ruled that the partnership was not entitled to renew the lease, and the notice sent by Young was ineffective. Consequently, the partnership's occupation of the premises was unlawful from the date the notice was ineffective, and the lessor was entitled to terminate the lease. The court ordered that the partnership vacate the premises and that any further claims regarding the lease be dismissed.

Orders