CJ Bova Pty Limited v Geoffrey Needham Pty Limited [2009] NSWSC 1353

New South Wales Supreme Court

CITATION : CJ Bova Pty Limited v Geoffrey Needham Pty Limited [2009] NSWSC 1353

HEARING DATE(S) : 3/12/09

JUDGMENT DATE : 4 December 2009

JURISDICTION : Equity

JUDGMENT OF : Forster J at 1

DECISION : See paragraph 38 of judgment.

CATCHWORDS : Offer and acceptance - acceptance must correspond with offer - offeree "prepared to accept subject to confirmation" of nominated matters - not merely "checking exercise" - held that no contract brought into existence.

CATEGORY : Procedural and other rulings

CASES CITED : Guang Dong Zhi Gao Australia Pty Ltd v Fortuna Network Pty Ltd [2009] NSWSC 1170

Plaintiff/Respondent- C J Bova Pty Limited PARTIES : First Defendant-Geoffrey Needham Pty Limited Second Defendant- Dr Geoffrey Needham

FILE NUMBER(S) : SC 1792/09

COUNSEL : Plaintiff/Respondent- I.R.Pike Defendant/Applicant- D.Roberts

SOLICITORS : Plaintiff/Respondent- Nathan Thomas Mattock Defendant/Applicant- Robert Bryan Cameron

IN THE SUPREME COURT OF NEW SOUTH WALES EQUITY DIVISION DUTY JUDGE LIST

FORSTER J

FRIDAY, 4 DECEMBER 2009

(1972/09) C J BOVA PTY LIMITED v GEOFFREY NEEDHAM PTY LIMITED & ANOR JUDGMENT 1 HIS HONOUR: By their notice of motion filed on 25 November 2009 the defendants seek a declaration that these proceedings have been settled by agreement between the parties. They also seek consequential relief giving effect to the alleged settlement. 2 The plaintiff disputes the defendants' entitlement to such relief. However, both parties have sought to have the issue determined by me on a final basis notwithstanding that the application has been brought by notice of motion in the proceedings themselves. 3 The application came before me yesterday, 3 December 2009, while I was sitting as the Duty Judge in the Equity Division. As the business of the court permitted me to do so, I acceded to the parties' application and agreed to hear the dispute on a final basis. 4 For the reasons that follow, I propose to dismiss the defendants' notice of motion with costs. 5 The dispute between the parties has its origins in a lease by the plaintiff of premises to the first defendant (and guaranteed by the second defendant) for a term of 3 years from 17 June 2004. The lease was in writing and is in evidence before me. 6 Pursuant to the exercise by the first defendant of an option contained in the lease, the plaintiff granted to the first defendant a further lease of the premises for a term of 3 years commencing on 17 June 2007. The first defendant continued in occupation of the leased premises following the expiration of the original term, but a year or so later, namely in July 2008, the first defendant notified the plaintiff of its intention to vacate those premises. It did so in August 2008. 7 The plaintiff claims that the first defendant's conduct constituted a repudiation of what in effect amounted to an equitable lease. It has sought damages for the first defendant's alleged breaches of various provisions of that lease, including its failure to pay rent, its failure to redecorate the leased premises and its failure to repair and make good those premises. The plaintiff has also sought damages for the first defendant's alleged removal of certain items alleged to belong to the plaintiff. 8 Mr Roberts of Counsel, who appeared for the defendants, drew my attention to clauses 10(1)–(3) of the lease which provided as follows: "BOND