HOOSH Inc (Haberfield out of School Hours) v State of New South Wales [2016] NSWSC 953

Supreme Court New South Wales

Medium Neutral Citation: HOOSH Inc (Haberfield out of School Hours) v State of New South Wales [2016] NSWSC 953 Hearing dates: 1 July 2016 Decision date: 08 July 2016 Jurisdiction: Equity - Expedition List Before: Stevenson J Decision: Separate questions answered Catchwords: CONTRACTS – licence to use part of primary school premises for before and after school care – exercise of option – whether notice exercising option given to school principal – whether service on school principal was service on Minister for purpose of licence – nature of licensee's entitlement assuming option was exercised Legislation Cited: Uniform Civil Procedure Rules 2005 (NSW) Category: Principal judgment Parties: HOOSH Inc (Haberfield out of School Hours) (Plaintiff) State of New South Wales (Defendant) Representation: Counsel: C A Evatt with I Kirgiz (Plaintiff) P M Knowles (Defendant)

Solicitors: Lincoln Smith & Company (Plaintiff) Hunt & Hunt (Defendant) File Number(s): SC 2016/154539

Judgment 1. By a Deed of Licence dated 11 March 2004, the Minister for Education and Training granted the plaintiff, HOOSH Inc (Haberfield out of School Hours) a licence for 10 years from 1 January 2004 to use a designated part of the Haberfield Public School site for the purposes of "organising and operating before and after school childcare and vacation care for children". The annual licence fee was $1. Evidently, the reason the licence fee was this nominal figure was because HOOSH had funded the construction of the premises, located in the school grounds, from which HOOSH conducts the centre. 2. Clause 29 of the Licence was entitled "Option to Renew" and was in the following terms: "If [HOOSH] desire to take a renewal licence of the Premises from the expiration of the term of this Licence then [HOOSH] shall give notice in writing of such desire to the [Minister], not less than three months and not more than six months prior to the expiration of the term of this Licence then PROVIDED THAT [HOOSH] shall not be in breach of any terms of this Licence at the time of exercising this option then the [Minister] may, in its absolute discretion, and at the expense and cost of [HOOSH] grant a Licence of the Premises to [HOOSH] for a further term specified in Item 8 of the Reference Schedule [of 10 years] from the expiration of the term of this Licence subject to the same terms and conditions of this Licence excepting this Clause 29. The Licence fee for the further term shall be the proper market Licence fee for the Premises which shall be determined by the State Valuation Office. The Licence fee so determined shall not in any circumstances be less than the Licence fee payable during the immediately preceding year of the term of this Licence. The cost of such valuation is to [be] shared equally by the [Minister] and [HOOSH]." [Emphasis in original] 1. On 3 June 2016 I made an order pursuant to Uniform Civil Procedure Rules 2005 (NSW) r 28.2 that the following two questions be determined separately from, and apart from any other issues in the proceedings: 1. whether Ms Lucille Scaltrito, a director of HOOSH, handed a document (being a notice purporting to exercise the option in cl 29 of the Licence) to the principal of Haberfield Public School, Ms Karlynne Jacobsen; and 2. whether, if so, that constituted the exercise by HOOSH of the option contained in cl 29 of the Licence. 1. The second question gives rise to two further questions, namely: 1. whether service on Ms Jacobsen was service on the Minister in accordance with the Licence; and 2. whether, on its proper construction, cl 29 of the Licence creates an option which would entitle HOOSH to a further 10 year term upon service of an effective notice.