Reid v Hipkiss [2001] NSWSC 986

New South Wales Supreme Court

CITATION : Reid v Hipkiss [2001] NSWSC 986 CURRENT JURISDICTION: Equity Division FILE NUMBER(S) : SC 4332/01 HEARING DATE(S) : 18/10/01 JUDGMENT DATE : 18 October 2001

Brett Jason Reid (P) PARTIES : John Anthony Victor Hipkiss (D1) Sophia Hipkiss (D2) JUDGMENT OF : Young CJ in Eq

COUNSEL : J de Vere Tyndall (P) R W Tregenza (D) SOLICITORS : Malouf (D) CATCHWORDS : LANDLORD & TENANT [48]- Rent- Covenant to pay the rent in advance- Dispute as to whether rent wholly paid- Construction of covenant. Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61 Clun's case (1613) 10 Co Rep 127b; 77 ER 1117 Cromwel v Andrews (1583) Cro Eliz 15; 78 ER 281 Dibble v Bowater (1853) 2 E & B 564 CASES CITED : Ex parte Alcock; Re McConnell (1955) 55 SR (NSW) 259 Felthouse v Bindley (1862) 11 CB (NS) 869; 142 ER 1037 Ford v Centenary Investments Pty Ltd [1957] VR 288 Integrated Computer Services Pty Ltd v Digital Equipment Corp (Aust) Pty Ltd (1988) 5 BPR 11,110 Pobjie Agencies Pty Ltd v Vinidex Tube Makers Pty Ltd [2000] NSWCA 105 DECISION : See paras 30 and 31.

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

4332 of 2001 YOUNG CJ in EQ

Thursday 18 October 2001 REID v HIPKISS & ANOR

Judgment 1 His Honour: This is a dispute between the landlords and tenant of licensed premises at Murrurundi. By lease bearing date 4 December 1995, the plaintiff leased from the defendants the Railway Hotel at Murrurundi for twelve years. The lease, which is under the Torrens System, provided that the rent would be $49,400 for the first two years, payable by twelve monthly instalments in advance, and then could be adjusted in accordance with a formula, which involved, should the parties not otherwise agree, to determination by a valuer. 2 Clause 1.5 of the lease said: "The rent is payable monthly in advance during the term of this Lease, the first payment to be made on the date on which the Lessee enters into possession of the premises". 3 It seems common ground that the lessee entered into possession on the seventh day of the month. 4 Clause 4.10.1 of the lease under the heading "DEFAULT" provided: "If the rent is unpaid for 28 days after it has become due although no formal demand is made; …"