TAB Ltd v A&N Selim Pty Ltd [2003] NSWSC 1149

New South Wales Supreme Court

CITATION : TAB Ltd v A&N Selim Pty Ltd [2003] NSWSC 1149 HEARING DATE(S) : 27 November, 2003 JUDGMENT DATE : 27 November 2003 JURISDICTION: Equity Division JUDGMENT OF : Palmer J DECISION : Summons dismissed with costs.

CATCHWORDS : CONTRACT - AGREEMENT FOR LEASE - UNJUST ENRICHMENT - Lessor and lessee negotiate for new lease - no express agreement as to rent - no formal lease executed - lessee continues in occupation after expiry of existing lease and pays higher rent - whether parties evinced common intention to be bound by informal agreement for lease - whether, if no binding lease, lessee entitled to repayment of rent and outgoings on restitutionary basis. HELD: No concluded agreement, no binding agreement for lease, lessor not unjustly enriched by payment of monthly rent. - Air Great Lakes Pty Ltd v K.S. Easter (Holdings) Pty Ltd (1985) 2 NSWLR 309 - Allen v Carbone (1975) 132 CLR 528 CASES CITED : - Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 - Brambles Holdings Limited v Bathurst City Council (2001) 53 NSWLR 153 - Film Bars Pty Ltd v Pacific Film Laboratories Pty Ltd (1979) 1BPR 9251 - Godecke v Kirwan (1973) 129 CLR 629 PARTIES : TAB Limited - Plaintiff A. & N. Selim Pty Ltd - Defendant FILE NUMBER(S) : SC 5362/03 COUNSEL : T.M. Lynch - Plaintiff F.P. Donohoe - Defendant SOLICITORS : Hunt & Hunt - Plaintiff James Soulos - Defendant

Ex tempore

Introduction

1 By its Summons filed on 20 October 2003, the Plaintiff seeks a declaration to the effect that it has validly exercised an option to renew a lease between itself and the Defendant in respect of retail premises known as 288 The Boulevard, Punchbowl ("the premises"). It seeks an order that the Defendant specifically perform the agreement arising out of exercise of the option by granting a lease upon certain terms, as well as other consequential relief. 2 The Defendant denies that any binding agreement to grant an option to renew the lease has ever come into existence. The Plaintiff responds that, if that is so, then it is entitled to repayment of a proportion of rent and other expenses which it has paid since 1 November 1998 during the period of its occupation of the premises. The ground for repayment is said to be that the payments were made under a mistake and the Defendant has been unjustly enriched thereby.