Carter v Schmitt & Ors [2003] NSWSC 1166

New South Wales Supreme Court

CITATION : Carter v Schmitt & Ors [2003] NSWSC 1166 HEARING DATE(S) : 30 October 2003, 10 November 2003 JUDGMENT DATE : 10 December 2003

JUDGMENT OF : Smart AJ at 1 DECISION : See para 71

CATCHWORDS : Option to renew - Agricultural Tenancy - whether correctly exercised LEGISLATION CITED : Agricultural Tenancies Act 1990 Agricultural Tenancies Regulation 2001 Ballas v Theophilos (No 2) (1957) 98 CLR 193 Bava Holdings Pty Ltd v Pando Holdings Pty Ltd (1998) NSW Conv R 55-862 Carter v Hyde (1923) 33 CLR 115 CASES CITED : Mannai Investments Co Ltd v Eagle Star Insurance Co Ltd 1997 AC 749 Prudential Assurance Co Ltd v Health Minders Pty Ltd (1987) 9 NSWLR 673 Riltang Pty Ltd v L Pty Ltd [2002] NSWSC 625 Tonitto & Anor v Bassal & Ors (1992) 28 NSWLR 564 PARTIES : Keith Carter v Schmitt & Ors FILE NUMBER(S) : SC 4878/03 COUNSEL : (P) Mr Bradford (D) Ms Bartush-Peek SOLICITORS : (P) Booth, Brown, Samuels & Olney (D) Long, Howland

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION EQUITY LIST

SMART AJ

Wednesday, 10 December 2003

4878/03: Keith Carter v Schmitt & Ors JUDGMENT

1. The plaintiff, Keith Carter, and his wife have owned a rural property known as "Maybrook", River Road, Geurie for a number of years. By an agreement of 4 November 1998 Mr Carter entered into a sharefarming agreement with John Francis Schmitt, his wife Margaret Rose Schmitt and their sons Andrew John and Mark Frederick. That agreement confers on the Schmitts an option to renew the agreement for a further three years subject to following a particular procedure and to certain conditions. The Schmitts, by their solicitors purported to exercise the option to renew but the plaintiff asserts that it was not validly exercised in that: (a) the Schmitts did not follow the procedure specified in the agreement for exercising the option, and