Ostron Pty Ltd v Rose Dion Pty Ltd [2015] NSWSC 643

Supreme Court New South Wales

Medium Neutral Citation: Ostron Pty Ltd v Rose Dion Pty Ltd [2015] NSWSC 643 Hearing dates: 14 May 2015 Date of orders: 28 May 2015 Decision date: 28 May 2015 Jurisdiction: Equity Division Before: Darke J Decision: Agreement for lease not established. Catchwords: REAL PROPERTY – leases – agreement to lease – whether parties entered into binding agreement – binding agreement not established

EQUITY – estoppel – whether landlord represented by conduct that it would enter into lease – whether detrimental reliance proven – estoppel not made out Cases Cited: Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 Sidhu v Van Dyke [2014] HCA 19; (2014) 251 CLR 505 Category: Principal judgment Parties: Ostron Pty Limited (plaintiff)

Rose Dion Pty Limited (first defendant) Dion Investments Pty Limited (second defendant) Representation: Counsel: P Menadue (plaintiff) S Chapple (defendants)

Solicitors: Good Legal (plaintiff) Hansons Lawyers (defendants) File Number(s): 2015/123768 Publication restriction: Nil.

Judgment

Introduction 1. The plaintiff is the lessee of premises owned by the second defendant at 37 Flinders Street, Wollongong. The lease term expired some time ago. The plaintiff is holding over as a monthly tenant. The plaintiff conducts a car detailing business from the premises. 2. The adjoining land at 35 Flinders Street is a vacant site owned by the first defendant. The defendant companies are part of the Dion Group, the managing director of which is Mr Les Dion. 3. In late 2014, negotiations took place between the plaintiff and the defendants for the possible leasing of both properties to the plaintiff so as to enable the plaintiff to expand its business operations. The plaintiff claims that the negotiations gave rise to a binding and enforceable agreement for lease made on about 25 September 2014. An estoppel precluding the defendants from denying the existence of the agreement is also propounded. The defendants deny that any binding agreement for lease was made, and deny that they are bound by any estoppel as alleged. 4. By its Summons filed on 27 April 2015, the plaintiff seeks declaratory relief and a decree of specific performance. The matter was promptly prepared, and the hearing was able to be accommodated in the Duty List. 5. The plaintiff, for whom Mr P Menadue of Counsel appeared, read an affidavit sworn by Mr Steven Juric, who is the sole director of the plaintiff, and an affidavit sworn by Mr Anthony Joseph, a building designer who assisted the plaintiff in the preparation of a development application in relation to the transaction. The defendant, for whom Mr S Chapple of Counsel appeared, read affidavits sworn by Mr Dion, Ms Tracy Preston, Ms Gabrielle Wilson and Ms Anna Massi. Ms Preston and Ms Wilson are respectively a Commercial Manager and a Leasing Executive at the defendant's leasing agents Martin, Morris and Jones ("MMJ"). Ms Massi is a partner of Hansons Lawyers of Wollongong. No affidavits were read in reply. 6. Notwithstanding that a number of conversations deposed to by Mr Juric and Mr Joseph were denied by Ms Preston, none of the deponents were required for cross-examination. In these circumstances the following statement of the facts is derived from the documentary evidence and the affidavit evidence insofar as it was not sought to be contradicted.