NSW Caselaw
New South Wales Supreme Court
CITATION : Waldorf Australia Pty Ltd v Elias Construction Group Pty Ltd [2010] NSWSC 164
HEARING DATE(S) : 07/12/09. 08/12/09, 09/12/09
JUDGMENT DATE : 10 March 2010
JURISDICTION : Equity
JUDGMENT OF : Barrett J
1. Order that each of the residential tenancy agreements made on 15 October 2005 between the plaintiff as tenant and the first defendant as landlord with respect to units 11, 14, 15, 17, 18, 23, 28, 32, 33, 35, 36, 40, 51 and 52 of premises known as 24 – 28 First Avenue Blacktown be rectified by including therein an option to renew as follows: "The tenant has an option to extend this lease for a further period of three years, exercisable at any time prior to 15 October 2008. The rent for the further term is to be as agreed between the parties or failing agreement to be fair market rental as determined by a licensed valuer appointed by the parties." DECISION : 2. Declare that the plaintiff validly and effectually exercised each such option to renew. 3. Order that the plaintiff's claims against the second defendant be dismissed. 4, Question of costs reserved for further argument.
CATCHWORDS : EQUITY - rectification - whether leases fail to reflect common intention of parties - non-inclusion of option to renew - EQUITY - equity does nothing in vain - whether rectification by inclusion of option to renew should be decreed when time for exercise of option has passed - whether past acts of lessee amounted to exercise
CATEGORY : Principal judgment
Australian Gypsum Ltd v Australian Plaster Co Ltd [1930] HCA 38; (1930) 45 CLR 54 Commissioner of Stamp Duties v Carlenka Pty Ltd (1995) 41 NSWLR 329 Fowler v Fowler (1859) 4 De G & J 250 Johnson v Bones [1970] 1 NSWR 28 CASES CITED : Kelly v Ollis [2003] NSWSC 1032; (2005) NSW ConvR 56-101 Maralinga Pty Ltd v Major Enterprises Pty Ltd [1973] HCA 23; (1973) 128 CLR 336 Pukallus v Cameron [1982] HCA 63; (1982) 150 CLR 447 Tsaoucis v Gallipoli Memorial Club Ltd [1998] NSW ConvR 55-860 Young v Lamb [2001] NSWCA 225; (2001) 10 BPR 18,553
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