Comdox v Robins [2009] NSWSC 367

New South Wales Supreme Court

CITATION : Comdox v Robins [2009] NSWSC 367

HEARING DATE(S) : 30 April 2009

JUDGMENT DATE : 8 May 2009

JURISDICTION : Equity

JUDGMENT OF : Bryson AJ

(1) A declaration that the Plaintiff has validly exercised the Option Renew the Lease registered as Lease AD146130T in relation to the premises identified as Folio Identifier 2/597630 and known as 306 Oxford Street, Bondi Junction in the state of New South Wales. DECISION : (2) Order that the First and Second Defendant grant to the Plaintiff a new lease for a further term of three years commencing on 17 April 2009 and expiring on 16 April 2012 which is subject to clause 9.2 of the existing lease but in other respects is to be identical to the existing lease. (3) Order that the First and Second Defendant pay the Plaintiff's costs of this Statement of Claim.(4) Reserve liberty to apply with respect to compliance with Order 2.

CATCHWORDS : LESSOR and LESSEE – option to renew lease – formalities of exercise – lease cl 9 provided for giving notice of desire to take a new lease and also service of notice of exercise of option – one notice was given – consideration in detail of meaning and effect of cl. 9, a non-standard term – notices were combined in one document, which was held to be sufficient – provisions of lease authorising giving notices under Conveyancing Act 1919 s 170 were facultative and not mandatory and exercise was not defeated by non-compliance – notice sent by post to lessor was returned unclaimed, notice sent by post to solicitor, who was the Chairman of Directors was perceived by him and treated by him and by lessor as effective – HELD – effective exercise of option to renew. Decision on operation of non-standard clause, not a clause in general use.