H A Jacob & Sons v Jacob & Anor [2002] NSWSC 244

New South Wales Supreme Court

CITATION : H A Jacob & Sons v Jacob & Anor [2002] NSWSC 244 CURRENT JURISDICTION: Common Law Division FILE NUMBER(S) : SC 10761 of 2001 HEARING DATE(S) : 28 February 2002 JUDGMENT DATE : 2 April 2002

H A Jacob & Sons Pty Limited (Plaintiff) PARTIES : v Donald Paul Jacob and Elaine Gweneth Jacob (Defendants) JUDGMENT OF : Master Malpass

LOWER COURT Local Court JURISDICTION : LOWER COURT 432/00 Local Court Albury FILE NUMBER(S) : LOWER COURT H Syme LCM JUDICIAL OFFICER :

COUNSEL : Mr J Pappas (Plaintiff) Mr M Pesman (Defendants) SOLICITORS : D G Skinner & Associates (Plaintiff) Adams Leyland (Defendants) CATCHWORDS : Notice of exercise of option to renew - authority and service - jurisdiction of Local Court. LEGISLATION CITED : Conveyancing Act 1919, s 170. CASES CITED : N/A DECISION : See paragraph 24.

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

Master Malpass

TUESDAY 2 APRIL 2002

10761 of 2001 H A Jacob & Sons Pty Limited v Donald Paul Jacob and Elaine Gweneth Jacob

JUDGMENT 1 Master Malpass: The plaintiff in these proceedings was the defendant in proceedings brought by the defendants in the Local Court. It was a claim brought for the recovery of certain monetary sums (including the sum of $4,524 being three months rent from 1 January 2000 to 31 March 2000). The claim was founded on an equitable lease said to arise from the exercise of an option to renew. It was alleged that the exercise was effected by written notice dated 30 October 1996. It seems to be common ground that it was alleged to have been exercised on that day. 2 The claim came before H Syme LCM at Albury. The hearing proceeded over at least two days. Judgment was delivered on 10 February 2001. Judgment was allowed in respect of certain amounts (including amounts for rent). 3 The plaintiff now appeals to this Court against the judgment. The appeal is restricted to an error of law. The many grounds of appeal may be found in the Amended Summons. 4 Although many matters have been agitated during submissions (the detail of these matters may be found in the written submissions filed in the court), it is unnecessary for present purposes to address most of them. It is common ground that the judgment rested on the decisions made concerning the exercise of the option to renew. The learned Magistrate decided inter alia that the defendant had given a valid notice of the exercise of the option and that the option was exercised with the authority of the plaintiff. 5 Before proceeding further, it is convenient to mention briefly certain matters of fact relevant to the decisions. 6 As at 30 October 1996, the plaintiff was a family company (inter alia directors and shareholders were members of the Jacob family). It remains unclear as to who were the actual directors at that time. The company operated five dealerships (Jacob Toyota). For present purposes, the court is concerned with the dealership operated at 400 Griffith Road, Lavington (the property). 7 At the time, the property was owned by the defendants. At the time of its acquisition, the intention was to use it for family business activities. The defendants are husband and wife and she is a lawyer. She prepared the lease which saw the property being leased to the plaintiff. The lease was dated 14 July 1995. It was for a term of 22 months. Clause 4 of the lease contained the option to renew. It contemplated renewal for a period of four years. The lease provided that the tenant could exercise the option only if the tenant served on the landlord a Notice of Exercise of Option not later than 30 October 1996. Clause 14 contains provisions as to service (as provided in s 170 of the Conveyancing Act 1919). 8 The hearing was a hotly contested affair. There were agreed issues and some agreed facts. A number of witnesses were called and many documents were tendered. The learned Magistrate inter alia accepted the evidence of Donald Jacob (one of the defendants). She preferred his evidence to that of another member of the family (Neville Jacob). Whilst these findings were challenged in the appeal, that challenge can be put aside for present purposes. 9 The evidence threw up some curious matters. I shall refer to some of them. 10 The evidence adduced in support of the claim relied on a document which was Exhibit G. It was a copy document in the form of a letter dated 30 October 1996. It had the letterhead Jacob Toyota One Team, One Dream. It was addressed to Don and Elaine Jacob. It contained the following:- "As per the terms of our lease, H.A.Jacob and Sons Pty. Ltd hereby exercises its option to renew the lease of 400 Griffith Road, Lavington for the period 1st May 1997 to 30th April 2001. Thank you for the cordial relationship for the last six years and we look forward to the future years ahead."