Renaldo Plus 3 Pty Limited (Receivers & Managers Appointed) v Coles Supermarkets Australia Pty Ltd [2011] NSWSC 649

Supreme Court New South Wales

Medium Neutral Citation: Renaldo Plus 3 Pty Limited (Receivers & Managers Appointed) v Coles Supermarkets Australia Pty Ltd [2011] NSWSC 649 Hearing dates: 27 June 2011 Decision date: 30 June 2011 Before: Ball J Decision: 1.Amended summons be dismissed. 2.Declare that, on its proper construction, paragraph 2.1 of Schedule B of Schedule 3 of the Agreement for Lease between Renaldo Plus 3 Pty Ltd ( Renaldo Plus 3 ) as lessor and Coles Supermarkets Australia Pty Ltd ( Coles ) as lessee made 24 October 2005 as varied by Deed Variation of Agreement for Lease dated 25 January 2006 (the Agreement for Lease ) provides as follows: (a) In the event the Gross Sales of Coles in any Lease Year exceed $25 million but are not greater than $40 million, Coles will be obliged to pay 2% of the amount of Gross Sales in excess of $25 million in Percentage Rent to Renaldo Plus 3. (b) In the event the Gross Sales of Coles in any Lease Year exceed $40 million but are not greater than $50 million then Coles will be obliged to pay Percentage Rent to Renaldo Plus 3 as follows: (a) 2% of the amount of Gross Sales in excess of $25 million but less than $40 million; and (b) 1.75% of the amount of Gross Sales in excess of $40 million but not greater than $50 million. (c) In the event that the Gross Sales of Coles in any Lease Year are in excess of $50 million then, Coles will be obliged to pay Percentage Rent to Renaldo Plus 3 as follows: (a) 2% of the amount of Gross Sales in excess of $25 million but less than $40 million; (b) 1.75% of amount of Gross Sales in excess of $40 million but not greater than $50 million; and (c) 1.5% of Gross Sales in excess of $50 million. 3.Renaldo Plus 3 pay Coles' costs of the proceedings. Catchwords: CONTRACT - construction - percentage rent clause - whether clause should be construed contra proferentem - no issue of principle Cases Cited: North v Marina [2003] NSWSC 64 Category: Principal judgment Parties: Renaldo Plus 3 Pty Limited (Receivers & Managers Appointed) (Plaintiff) Coles Supermarkets Australia Pty Ltd (Defendant) Representation: JWJ Stevenson SC (Plaintiff) NCT Bilinsky (Plaintiff) IR Pike (Defendant) Henry Davis York (Plaintiff) Norton Rose (Defendant) File Number(s): 2010/61620