Howard v 185 Elizabeth Street [2006] NSWSC 614

Howard v 185 Elizabeth Street [2006] NSWSC 614

There was no serious question to be tried that either plaintiff was entitled to possession. Even assuming the amended proposal was returned, it expressly was not binding and was subject to execution of a lease, no memorandum or note signed by or on behalf of the lessor accepted the final terms, and there was no sufficient part performance or estoppel. Any licence from the former lessee was terminated or expired with the former tenancy. The plaintiffs had no legal right to more access than the defendant offered for removal of goods.

Jurisdiction
Australia
Judgment Date
23 May 2006
Procedural Posture
Landlord and Tenant Dispute Concerning Alleged Agreement for Lease, Licence to Occupy Commercial Premises, Interlocutory Injunction and Access to Premises / Application to Continue Injunction and for Access/possession Orders
Outcome
Application for continuation of the injunction and possession orders refused; limited supervised access ordered; costs of the day's proceedings awarded to the defendant; matter stood over for directions.
Legal Topics
['agreement for Lease' 'licence to Occupy Premises' 'interlocutory Injunction' 'serious Question to Be Tried' 'conveyancing Act 1919 (nsw) S 54 A' 'possession of Commercial Premises' 'removal of Goods']
['landlord and Tenant' 'equity' 'property Law'] ['agreement for Lease' 'licence to Occupy Premises' 'interlocutory Injunction' 'serious Question to Be Tried' 'conveyancing Act 1919 (nsw) S 54 A' 'possession of Commercial Premises' 'removal of Goods']

Case Brief

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Procedural Posture

Landlord and Tenant Dispute Concerning Alleged Agreement for Lease, Licence to Occupy Commercial Premises, Interlocutory Injunction and Access to Premises / Application to Continue Injunction and for Access/possession Orders

Legal Issues

  1. 1 ['Whether there was a serious question to be tried that Australian Commercial & General Corporation Pty Limited was entitled to possession of suites 111-114 pursuant to an agreement for lease allegedly made with the defendant.' 'Whether there was a serious question to be tried that Ms Howard, or a company associated with her, was entitled to possession of suite 111 pursuant to a licence from a previous lessee.' "Whether further orders should be made for access to the premises to remove the plaintiffs' goods."]

Ratio Decidendi

There was no serious question to be tried that either plaintiff was entitled to possession. Even assuming the amended proposal was returned, it expressly was not binding and was subject to execution of a lease, no memorandum or note signed by or on behalf of the lessor accepted the final terms, and there was no sufficient part performance or estoppel. Any licence from the former lessee was terminated or expired with the former tenancy. The plaintiffs had no legal right to more access than the defendant offered for removal of goods.

Court Disposition

Application for continuation of the injunction and possession orders refused; limited supervised access ordered; costs of the day's proceedings awarded to the defendant; matter stood over for directions.

Orders

  • ['The defendant grant supervised access to the first plaintiff, or any person authorised in writing by the first plaintiff, to suites 111, 112, 113 and 114, 185 Elizabeth Street, Sydney between 9.00am and 5.00pm on Monday 29 May 2006 for checking documents and goods, sorting through documents, and removing documents...