Aspromonte Pty. Limited v. Zagari [1999] NSWSC 831

Reported Decision : [2000] 9 BPR 17,247 [1999] NSW ConvR 55-916

New South Wales Supreme Court CITATION : Aspromonte Pty. Limited v. Zagari [1999] NSWSC 831 CURRENT JURISDICTION : Equity Division FILE NUMBER(S) : No.3390 of 1999 HEARING DATE(S) : 9th and 10th August 1999 JUDGMENT DATE : 11 August 1999

PARTIES : Aspromonte Pty. Limited - Ptff/XDef Francesco Zagari - Defendant/XCl JUDGMENT OF : Hodgson CJinEq at 1

COUNSEL : Dr. C. Birch for plaintiff Mr. N. Kidd for defendant SOLICITORS : Agostino & Co., Fairfield for plaintiff Stewart Levitt & Co., Sydney for defendant CATCHWORDS : LANDLORD AND TENANT - RETAIL LEASES ACT. Prospective tenant spends $30,000 on preparation of shop, and then goes into possession and starts paying rent, in expectation of being granted a lease for not less than 6 months. Three months later, in June 1998, tenant and landlord execute a lease for 6 months with a 6 months option, commencing on 1st July, and solicitor gives a certificate under s.16 of the Retail Leases Act. Tenant claims benefit of 5 year lease. HELD that, prior to giving of the certificate, a lease had arisen to which the Retail Leases Act applied, so that its term was extended to 5 years; and that, while such a lease could be surrendered, the execution of the 6 month lease neither effected such a surrender nor displaced the pre-existing statute-extended lease. ACTS CITED : Retail Leases Act 1994 ss.6, 7, 8, 16. DECISION : See p.17 of judgment

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IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

CORAM: HODGSON, CJ in Eq.

Wednesday 11th August 1999

NO. 3390 OF 1999 ASPROMONTE PTY. LIMITED V. ZAGARI JUDGMENT