Aspro's Pty Limitied v Robert Frederick Hayter & Ors [2005] NSWSC 512

New South Wales Supreme Court

CITATION : Aspro's Pty Limitied v Robert Frederick Hayter & Ors [2005] NSWSC 512

HEARING DATE(S) : 23, 24, 25 May 2005

JUDGMENT DATE : 1 June 2005

JURISDICTION : Equity Division

JUDGMENT OF : Bergin J

DECISION : Rectification ordered

CATCHWORDS : Application for rectification of the Rent Review clause of a lease - Whether the plaintiff has established an identical corresponding contractual intention different from that which is in the Lease - Common mistake

Australasian Performing Right Association Ltd v Austarama Television Pty Ltd [1972] 2 NSWLR 467 Commissioner of Stamp Duties (NSW) v Carlenka Pty Ltd (1995) 41 NSWLR 329 CASES CITED : Maralinga Pty Limited v Major Enterprises Pty Limited (1973) 128 CLR 336 Pukallus v Cameron (1982) 180 CLR 447

Aspro's Pty Limited (Plaintiff) Robert Frederick Hayter (First Defendant) PARTIES : Judith Anne Hayter (Second Defendant) Keith Fountain (Third Defendant)

FILE NUMBER(S) : SC 1383/04

M. McCulloch SC (Plaintiff) COUNSEL : Marcus Young (Defendants)

Ebsworth & Ebsworth (Plaintiff) SOLICITORS : Dixon Holmes Du Pont (Defendants)

LOWER COURT JURISDICTION :

- 1 - IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION

BERGIN J

1 JUNE 2005

1383/04 ASPRO'S PTY LIMITED V ROBERT FREDERICK HAYTER & ORS JUDGMENT 1 The plaintiff, Aspro's Pty Limited, seeks rectification of a lease between it as lessee and the defendants, Robert Frederick Hayter, Judith Anne Hayter and Keith Fountain, as lessors (the Lease) in respect of premises located at 414 Bourke Street, Surry Hills (the leased premises). The plaintiff claims that the rent review clause, clause 6.2, does not express the true agreement between the parties. The basis of the plaintiff's claim is that there was a common mistake or alternatively that there was a unilateral mistake made by the plaintiff. 2 The Lease is dated 14 September 1998 and is for a period of 20 years. The leased premises are commercial premises from which the plaintiff operates a franchise business under an agreement with Video Ezy Australia Pty Limited that involves the hiring and sale of pre-recorded video cassette tapes and DVDs. The plaintiff also owns and operates another Video Ezy franchise from premises in Redfern. 3 In early 1997 the principal of the plaintiff, Peter Aspres, decided to establish a Video Ezy business in Surry Hills. In looking for premises he made contact with the real estate agency, Nationwide Realty in Elizabeth Street, Surry Hills. Mr Aspres there met with Mr Martin Vogt and explained to him that he was looking for ground floor commercial retail space of around 300-400m². It was in about August 1997 that Mr Vogt contacted Mr Aspres and they went together to inspect the leased premises. At the premises Mr Vogt introduced Mr Aspres to the first defendant, Robert Frederick Hayter, and after viewing the upstairs area of the premises Mr Aspres had a conversation with Mr Hayter in which they discussed various aspects of the building. There is no issue that the building needed substantial work to be done prior to occupancy. The leased premises are owned by the defendants, and at this time Mr Hayter's company, Ausfers Pty Ltd, a retailer in sheepskin products, was on a month-to-month tenancy, after the expiration of its lease.