Lifoon Pty Ltd v Gillard & Ors; Hendriks & Ors v Gillard & Anor [2006] NSWCA 182

Lifoon Pty Ltd v Gillard & Ors; Hendriks & Ors v Gillard & Anor [2006] NSWCA 182

The landlord's appeal failed because the trial judge's findings that the option was orally exercised, that the landlord's managing director represented that written notice was unnecessary, and that the tenants relied on that representation were supported by the evidence; contributory reliance was sufficient to complete the estoppel. The former solicitors' appeal succeeded in part because the trial judge erred in treating s 54A of the Conveyancing Act 1919 as a potential defence: the registered lease and option clause were a signed written offer capable of oral acceptance and amounted to a sufficient memorandum. On the facts known in April 2004, including uncorroborated evidence from the...

Jurisdiction
Australia
Judgment Date
07 July 2006
Procedural Posture
Appeal and Application for Leave to Appeal / New South Wales Court of Appeal From Supreme Court of New South Wales, Equity Division, Bergin J
Outcome
CA 40662 of 2005: appeal dismissed. CA 40644 of 2005: leave to appeal granted in part, appeal allowed, orders 6 and 10 of 20 July 2005 set aside, proceedings remitted to Bergin J.
Legal Topics
['exercise of Option to Renew Commercial Lease' 'reliance and Change of Position' 's 54 a Conveyancing Act 1919 Writing Requirement' 'oral Acceptance of Signed Written Offer' "solicitor's Duty of Advice" 'inquiry as to Damages' 'calderbank Offer and Costs']
['estoppel' 'conveyancing' 'landlord and Tenant' 'professional Negligence' 'civil Procedure'] ['exercise of Option to Renew Commercial Lease' 'reliance and Change of Position' 's 54 a Conveyancing Act 1919 Writing Requirement' 'oral Acceptance of Signed Written Offer' "solicitor's Duty of Advice" 'inquiry as to Damages' 'calderbank Offer and Costs']

Case Brief

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Procedural Posture

Appeal and Application for Leave to Appeal / New South Wales Court of Appeal From Supreme Court of New South Wales, Equity Division, Bergin J

Legal Issues

  1. 1 ['Whether the tenants orally exercised the option of renewal at the meeting on 24 March 2003 and whether the landlord was estopped from relying on the absence of written notice.' "Whether reliance on the landlord's representation need only be a contributing cause of the tenants' change of position for estoppel to be established." 'Whether s 54A of the Conveyancing Act 1919 gave the landlord a potential defence to enforcement of the renewed lease.' 'Whether the former solicitors breached their duty by failing to advise the tenants that the landlord had a strong case that they were only monthly tenants.' 'Whether the damages inquiry ordered against the former solicitors was too wide.' 'Whether the former solicitors should have leave to appeal against costs orders based on a Calderbank letter.']

Ratio Decidendi

The landlord's appeal failed because the trial judge's findings that the option was orally exercised, that the landlord's managing director represented that written notice was unnecessary, and that the tenants relied on that representation were supported by the evidence; contributory reliance was sufficient to complete the estoppel. The former solicitors' appeal succeeded in part because the trial judge erred in treating s 54A of the Conveyancing Act 1919 as a potential defence: the registered lease and option clause were a signed written offer capable of oral acceptance and amounted to a sufficient memorandum. On the facts known in April 2004, including uncorroborated evidence from the...

Court Disposition

CA 40662 of 2005: appeal dismissed. CA 40644 of 2005: leave to appeal granted in part, appeal allowed, orders 6 and 10 of 20 July 2005 set aside, proceedings remitted to Bergin J.

Orders

  • ['CA 40662 of 2005: Appeal dismissed.' 'CA 40662 of 2005: Appellant to pay the costs of both sets of respondents.' 'CA 40644 of 2005: Leave to appeal granted limited to grounds 1-3 of the draft notice of appeal and orders 1 and 2 as sought in that draft.' 'CA 40644 of 2005: Notice of appeal to be filed and served...