Young v Pioneer Concrete (Vic) Pty Ltd [1996] FCA 1178

suoement Wo. wt. Le.

IN THE FEDERAL RT OF AUSTRALIA VICTORIA DISTRICT REGISTRY

GENERAL DIVISION No VG 457 of 1994 BETWEEN:

NEIL JOHN YOUNG, ALLAN JAMES MYERS and JENNIFER CLAIRE 0' CALLAGHAN

Applicants ~and- PIONEER NCRETE (VI PTY LT Respondent PIONEER NCRETE I PTY LT

Cross Claimant

-and-

NEIL HN YOUN ALLAN JAMES MYER: nd

ENNIFER IRE QO' LAGHAN Cross Respondents Coram: Olney J Place: Melbourne Date: 26 March 1996

REASONS FOR JUDGMENT

In this proceeding declaratory relief is sought in relation to

the proper construction of a lease of commercial premises.

The facts are not in dispute.

On 1 January 1990 Catchklin Pty Ltd (Catchklin) and the

respondent (Pioneer) executed a lease (the lease) of the first floor, 1183.Toorak Road, Hartwell (the premises). The form of the lease was negotiated between Catchklin and Pioneer,

each of whom were represented by solicitors in the

- 2 _ negotiations. In July 1990 the applicants purchased the premises from Catchklin and became entitled to the reversion

of the premises.

The lease in paragraph 2(a) contains a covenant by the lessee to pay to the lessor during the continuance of the term of the lease the rent set forth in the schedule to the lease. The relevant item in the schedule provides for an annual rental of a specified sum which is subject to review as stipulated in special condition 3. The special conditions and schedule form part of the lease (paragraph 12). The full text of

special condition 3 is set out in the schedule to these

reasons.

In respect of the 18 month periods commencing on 1 July 1991 and on 1 January 1993, the rent was determined in accordance with special conditions 3(a), (b) and (c) by the applicants giving a lessor's notice to Pioneer. Pioneer did not dispute

the amount set out in the lessor's notice on these occasions.

The applicants did not give a lessor's notice or otherwise