Mineaplenty Pty Ltd v Trek 31 Pty Ltd [2006] NSWSC 1203

Reported Decision : (2007) ANZ Conv R 123

New South Wales Supreme Court

CITATION : Mineaplenty Pty Ltd v Trek 31 Pty Ltd [2006] NSWSC 1203

HEARING DATE(S) : 30 August - 1 September 2006

JUDGMENT DATE : 15 November 2006

JURISDICTION : Equity Division

JUDGMENT OF : Brereton J

DECISION : (1) Declare that plaintiff has exercised first option conferred by lease and is entitled to further lease upon same terms covenants and conditions as contained in lease subject to deletion of clause incorporating filed memorandum, and at rental determined in accordance with lease. (2) Order that defendant execute and deliver to plaintiff further lease. (3) By way of relief against forfeiture, order that defendant be permanently restrained from exercising power of re-entry in reliance upon any default in respect of payment of rent prior to 1 September 2006. (4) Order that cross-claim be dismissed. (5) Order that defendant pay plaintiff's costs, including of cross-claim.

CATCHWORDS : CONVEYANCING – Lease - Option to Renew – Agency - whether lessee validly and effectively exercised option – principles relating to notices exercising options - where exercise was by and in name of principal of lessee company addressed to principal of lessor company – Estoppel – Waiver - whether lessee waived, or is estopped from relying upon, notice of exercise of option – where lessor informed lessee that a further notice was required as a matter of formality for the records of lessor company - whether lessor estopped from insisting at any time upon payment of amount properly due under the lease – whether lessor is estopped from claiming arrears of rent - where lessor issued annual notices of rent review which mistakenly understated amount properly due in accordance with lease and lessee paid in accordance with those notices – where lessee alleged that rent reviews were incorrectly calculated and overstated rent properly due – where lessor then recalculated and discovered error understating rents – EQUITY – Relief against forfeiture - whether lessee entitled to relief against forfeiture – where no arrears at date of commencement of cross-claim for possession – where lessee did not admit breach – whether admission of breach essential precondition to grant of relief against forfeiture – DEEDS - whether lessee entitled to renewed lease, omitting from its terms reference incorporating filed memorandum – where reference to filed memorandum inserted by lessor or agent after execution and without knowledge of lessee – COSTS – Relief against forfeiture - whether lessor entitled to some part of costs in respect of claim for relief against forfeiture – where forfeiture first asserted in cross-claim in answer to lessee's claim to enforce exercise of option.