Dee-Tech Pty Limited v Neddam Holdings Pty Limited (No 2) [2009] NSWSC 1355

New South Wales Supreme Court

CITATION : Dee-Tech Pty Limited v Neddam Holdings Pty Limited (No 2) [2009] NSWSC 1355 This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S) : 12 - 13 October 2009

JUDGMENT DATE : 8 December 2009

JUDGMENT OF : Gzell J

DECISION : Injunction vacated. Lease rectified. Obligation to pay outgoings implied as essential term. Account to be taken by Associate Judge. Plaintiff ordered to give possession and writ of possession to issue. Mesne profits to be paid.

CATCHWORDS : EQUITY - General Principles and Maxims of Equity - rectification of lease variation - provision defining outgoings "in the lease commencing 1 February 2006" - lease commenced 1 February 2005 - whether common intention of parties that earlier date applied - whether subsequent oral agreement that later date applied - whether obligation to pay outgoings to be implied and as an essential term - CONTRACTS - General Contractual Principles - Construction and Interpretation of Contracts - whether change in shareholding of plaintiff lessee without consent of defendant lessor in breach - whether keeping a dog on premises in breach - whether refusal of access to a building inspector in breach - whether failure to take out insurance policies approved by defendant in breach of essential term - LANDLORD AND TENANT - Termination of Tenancy - defendant restrained from re-entry for breach - whether acceptance of rent and outgoings and insistence on taking out insurance policies in accordance with lease a waiver of notice under the Conveyancing Act 1919, s 129 - calculation of rent and outgoings in arrears difficult - whether an account to be taken by an Associate Judge - whether plaintiff should be relieved from forfeiture of lease