NSW Caselaw
New South Wales Supreme Court
CITATION : Azkanaad v Galanos (No 2) [2008] NSWSC 476
HEARING DATE(S) : 13 May 2008
JUDGMENT DATE : 16 May 2008
JUDGMENT OF : Gzell J
DECISION : Summons dismissed with costs.
CATCHWORDS : LANDLORD AND TENANT - Creation of Relationship of Landlord and Tenant - Whether concluded agreement for lease contained in correspondence - Whether in first class in Masters v Cameron (1954) 91 CLR 353 - Whether conventional estoppel applied to failure to demand rent increases - Whether repudiatory conduct precluded specific performance - Whether no agreement for lease in equity - Whether tenancy at will terminated by notice to quit under the Conveyancing Act 1919, s 127(1) - Whether relief from forfeiture available
LEGISLATION CITED : Real Property Act 1900 Conveyancing Act 1919
Walsh v Lonsdale (1882) 21 Ch D 9 Marshall v Council of the Shire of Snowy River (1994) 7 BPR 14,447 Masters v Cameron (1954) 91 CLR 353 CASES CITED : Brew v Whitlock (No 2) [1967] VR 803 Whitlock v Brew (1968) 118 CLR 445 Azkanaad v Galanos [2008] NSWSC 398 Moratic Pty Ltd v Lawrence James Gordon & Anor [2007] NSWSC 5
PARTIES : Azkanaad Pty Ltd (Plaintiff) Galanos Bros Pty Ltd (Defendnat)
FILE NUMBER(S) : SC 2454/08
COUNSEL : Mr M Sahade (Plaintiff) Mr N Cotman SC (Defendant)
SOLICITORS : Philip Goldman & Co (Plaintiff) V A Lawyers (Defedant)
IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION
GZELL J
FRIDAY 16 MAY 2008
2454/08 AZKANAAD PTY LTD v GALANOS BROS PTY LTD (NO 2) JUDGMENT Introduction 1 The plaintiff, Azkanaad Pty Ltd, entered into occupation of land at Woolooware, in Sydney on 4 March 2003. The land was owned by the defendant, Galanos Bros Pty Ltd. In March 2008, Galanos served a one month notice to quit. Azkanaad seeks declarations that the notice to quit was of no force and effect, that Galanos is bound by a lease contained in correspondence and Azkanaad is not liable to pay rent increases under the lease. Azkanaad seeks specific performance of the lease or, in the alternative, relief from forfeiture of it. The correspondence 2 On 29 May 2002 the solicitors for Azkanaad wrote to the solicitors for Galanos stating that they were instructed that their respective clients had negotiated the terms of a proposed lease of the land. They summarised its terms as follows:
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