Boulay Pty Ltd v The Trust Company Ltd [2017] NSWSC 222

Supreme Court New South Wales

Medium Neutral Citation: Boulay Pty Ltd v The Trust Company Ltd [2017] NSWSC 222 Hearing dates: 9 March 2017 Decision date: 10 March 2017 Jurisdiction: Equity - Commercial List Before: Stevenson J Decision: Declaration refused; proceedings dismissed Catchwords: CONTRACT – construction – commercial lease – market review of rent – whether lessor's notice of rent at review date must be served by that review date Cases Cited: Queensland Electricity Generating Board v New Hope Collieries Pty Ltd [1989] 1 Lloyd's Rep 205 Category: Principal judgment Parties: Boulay Pty Ltd (Plaintiff) The Trust Company Limited (First Defendant) IOF Custodian Pty Limited as trustee for AJO Subtrust 2 (Second Defendant) Representation: Counsel: I M Jackman SC with V Brigden (Plaintiff) T G R Parker SC (Defendants)

Solicitors: Landerer & Co (Plaintiff) Mills Oakley Lawyers (Defendants) File Number(s): SC 2016/351912

Judgment 1. The plaintiff, Boulay Pty Ltd, and the defendants, the Trust Company Limited and IOF Custodian Pty Limited as trustee for AJO Subtrust 2, are parties to a sublease dated 27 May 2013 in respect of premises in Castlereagh Street, Sydney. 2. For simplicity, I will refer to the parties as the "Lessee" and the "Lessor" and to the governing document as the "Lease". 3. The Lease is for a period of eight years commencing on 1 February 2014, with an option to renew for five years. 4. The Lease provides for rent reviews. 5. The Lease defines "Review Date" to mean the dates in, relevantly, Item 8 of the Reference Schedule. 6. Item 8 in the Reference Schedule specifies rent review dates as follows: Review Date Review Method 1 February 2015 No review 1 February 2016 Market 1 February 2017 No review 1 February 2018 Market 1 February 2019 No review 1 February 2020 Market