Thorn Australia Pty Ltd v Centuria Property Funds Ltd [2021] NSWSC 1217

Procedural Posture

Equity Proceedings Seeking Declaratory Relief Concerning Whether a Binding Lease or Agreement for Lease Came Into Existence / Principal Judgment After Hearing of the Summons and Cross Summons

Legal Issues

1. 1 ['Whether the plaintiff delivered the Lease and Incentive Deed so as to become bound by them as deeds.' 'Whether the plaintiff evinced an objectively ascertained intention to be immediately bound by the signed documents before execution by the defendants.' 'Whether the plaintiff was entitled to withdraw from the proposed lease transaction before the defendants executed the formal lease documents.']

Ratio Decidendi

The plaintiff did not deliver any of the deeds it signed because, viewed objectively in light of the Heads of Agreement, the parties' communications, and the agreed process for execution of the formal documents, the plaintiff did not evince an intention to be immediately bound before the defendants signed. The right to withdraw before execution of formal lease documents by both the lessee and lessors had not been abrogated or abandoned. As the defendants had not signed the deeds by 16 August 2021, the plaintiff was entitled to withdraw from the transaction and recall the deeds.

Court Disposition

Plaintiff held not to have delivered the deeds and held entitled to withdraw from the proposed lease transaction; Cross-Claim to be dismissed.

Orders

• ['Declarations to be made to the effect that the plaintiff did not become bound by either the Incentive Deed or the Lease.' 'Declaration to be made that the parties did not enter into any binding agreement for lease, or binding lease, in respect of the premises.' 'The Cross-Claim will be dismissed.' "The...