American Home Assurance Co v Grimes George Street Garage Pty Ltd [2007] NSWSC 1400

New South Wales Supreme Court

CITATION : American Home Assurance Co v Grimes George Street Garage Pty Ltd [2007] NSWSC 1400

HEARING DATE(S) : 25/06/2007

JUDGMENT DATE : 7 December 2007

JUDGMENT OF : Howie J at 1

DECISION : Judgment for the defendant. The plaintiff is to pay the defendant's costs.

CATCHWORDS : Landlord and Tenant - Rent - Date upon which increase in rent is payable.

Codelfa Constructions Pty Ltd v State Rail Authority of NSW (1981) 149 CLR 337 CASES CITED : Investors Compensation Scheme Ltd v Westbromidge Building Society (1998) 1 All ER 98 Joint Coal Board v Nonne Pty Ltd (1984) 3 BRP [97207] CH Bailey v Memorail Enterprises [1974] 1 All ER 1003

PARTIES : American Home Assurance Co v Grimes George Street Garage Pty Ltd

FILE NUMBER(S) : SC 2006/13515

COUNSEL : D Murr SC - Plaintiff S G Finch SC/T L Wong - Defendant

SOLICITORS : Minter Ellison Lawyers - Plaintiff Freehills Solicitors - Defendant

IN THE SUPREME COURT OF NEW SOUTH WALES COMMON LAW DIVISION

HOWIE J

FRIDAY 7 DECEMBER 2007

2006/13515 AMERICAN HOME ASSURANCE CO v GRIMES GEORGE STREET GARAGE PTY LTD

JUDGMENT 1 HIS HONOUR: By statement of claim the plaintiff seeks payment of what it alleges are outstanding payments of rent for premises in George Street Sydney that the defendant leased as a garage. The period over which it is alleged that there was a shortfall in rent payments was from 22 February 2002 to 25 May 2006. Over that period the defendant paid the plaintiff rent at the rate of $450,000 per annum whereas the plaintiff claims that the proper rent was $637,500 per annum. The plaintiff calculates the shortfall between the rent paid and what it submits was the amount to be paid under the terms of the contract as $798,891.13 and seeks an order for the payment of that amount and interest. 2 The issue before the Court is to be resolved by the proper construction of the terms of the lease agreements to determine the date upon which any adjustment of the annual rent applies. The plaintiff contends that, once the adjustment had been determined, the adjusted rent ran from the commencement of the renewed lease (the retrospective approach). The defendant contends that the adjusted rent ran only from the date of its determination (the prospective approach).