ASHINGTON HOLDINGS PTY LTD v WIPEMA SERVICES PTY LTD [1999] NSWCA 456

Reported Decision : (2000) NSW ConvR 55-928

New South Wales Court of Appeal CITATION : ASHINGTON HOLDINGS PTY LTD v WIPEMA SERVICES PTY LTD [1999] NSWCA 456 revised - 21/12/99 FILE NUMBER(S) : CA 40757/98 HEARING DATE(S) : 27 September 1999 JUDGMENT DATE : 10 December 1999

PARTIES : ASHINGTON HOLDINGS PTY LTD V WIPEMA SERVICES PTY LTD JUDGMENT OF : Mason P at 1; Handley JA at 41; Fitzgerald JA at 42

LOWER COURT JURISDICTION : Supreme Court - Equity Division LOWER COURT FILE NUMBER(S) : 1339/98 LOWER COURT JUDICIAL OFFICER : Young J

COUNSEL : Appellant: B Coles QC and M Ashhurst Respondent: M Skinner SOLICITORS : Appellant: Dobes & Andrews Respondent: Taylor Kelso CATCHWORDS : CONTRACTS - Discharge - Lease - Option to renew lease exercised - Breakdown of negotiations between lessor and lessee regarding renewal of the lease leading to cessation of rent payments - Whether there was an enforceable agreement to lease - Tender by appellant to respondent of document in form of lease in same terms as original lease - Refusal by respondent to execute ; ESTOPPEL BY CONVENTION - Registration of strata plan pertaining to leased property following renewal of option - Whether the registration of the strata plan altered the premises making performance of the lessor's obligations impossible - Whether lessee's consent to registration estops it from taking this stance. DECISION : Appeal upheld. See par 40.

IN THE SUPREME COURT OF NEW SOUTH WALES COURT OF APPEAL

CA40757/98 ED 1339/98

MASON P HANDLEY JA FITZGERALD JA

Friday 10 December 1999 ASHINGTON HOLDINGS PTY LIMITED v WIPEMA SERVICES PTY LIMITED

The appellant was the owner of premises at 16 O'Connell Street, Sydney, and the respondent was the lessee of Level 7. In addition to rent, the lease required the respondent to pay the appellant 8.09% of the "additional outgoings", as defined in cl 23 of the lease. On 27 October 1997, the respondent exercised an option to renew its lease for a further term of three years commencing on 1 March 1998.