Fewson v Wells [1999] NSWSC 1124

New South Wales Supreme Court CITATION : Fewson v Wells [1999] NSWSC 1124 CURRENT JURISDICTION : Equity FILE NUMBER(S) : 3675 of 1999 HEARING DATE(S) : 9 November 1999 JUDGMENT DATE : 23 November 1999

Fewson Pty Limited (Plaintiff) PARTIES : Martin David Wells (First Defendant) Norman Wright (Second Defendant) JUDGMENT OF : Windeyer J at 1

COUNSEL : Mr C.A. Moore (Plaintiff) Mr A. Gelbart (Defendants) SOLICITORS : Cutler Hughes & Harris (Plaintiff) Wheelers (Defendants) CATCHWORDS : LANDLORD AND TENANT - form and contents of lease - whether lease between plaintiff and defendants contained a three month termination clause - termination clause on a separate piece of paper inserted between pages of lease - not signed by parties - pure question of fact DECISION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

WINDEYER J

TUESDAY 23 NOVEMBER 1999

FEWSON PTY LIMITED v MARTIN DAVID WELLS & ANOR

JUDGMENT Issue 1 The question to be decided is whether a lease between Fewson Pty Limited (Fewson) and the defendants, Martin David Wells (Wells) and Norman Wright (Wright) of part of property 54 Duffy Avenue, Thornleigh contained a clause as follows: 38. This lease may be terminated at any time by the lessor or the lessee providing three (3) months notice in writing is given.

The landlord or its agent (Mr Clark) says the clause was included, the tenants say it was not. The landlord puts in evidence the original lease with a page including the clause attached. The tenants put in evidence what they allege is a copy of the lease they signed which does not include the attached page. One side has changed the document. This is the only real issue. There is now no real dispute as to whether one of the two notices of termination was valid if clause 38 was included in the lease. It does not matter which one was valid as all the landlord seeks is an order for possession.