Mega & Co Pty Ltd t/as Oporto Clarence Street v Elanor Funds Management Ltd as Trustee for 193 Clarence Hotel Syndicate [2016] NSWCATCD 60

Mega & Co Pty Ltd t/as Oporto Clarence Street v Elanor Funds Management Ltd as Trustee for 193 Clarence Hotel Syndicate [2016] NSWCATCD 60

The Tribunal found on the balance of probabilities that on or about 15 September 2015 the lessee placed a duly signed notice exercising the option in a correctly addressed prepaid envelope and posted it by ordinary mail, and that the notice was more probably than not received into the lessor's office but misplaced there without coming to the attention of the responsible employees. The notice was sufficient in form and, under the applicable principles of service by post and the authorities on exercise of options, validly exercised the option within the option period.

Jurisdiction
Australia
Judgment Date
20 July 2016
Procedural Posture
Retail Lease Dispute Concerning Exercise of an Option to Renew a Lease / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales
Outcome
Application granted; declaration made that the lessee validly exercised the option to renew, and costs ordered in favour of the lessee.
Legal Topics
['exercise of Option to Renew Lease' 'service of Notice by Post' 'validity and Receipt of Notice' 'costs in Tribunal Proceedings']
['property Law' 'leases' 'retail Leases' 'civil Procedure'] ['exercise of Option to Renew Lease' 'service of Notice by Post' 'validity and Receipt of Notice' 'costs in Tribunal Proceedings']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Retail Lease Dispute Concerning Exercise of an Option to Renew a Lease / Principal Judgment After Hearing in the Consumer and Commercial Division of the Civil and Administrative Tribunal of New South Wales

Legal Issues

  1. 1 ['Whether the lessee validly exercised the first option to renew registered lease AE778223K within the option period required by cl 2.08 of variation AG354012P.' 'Whether the notice dated 15 September 2015 was posted, received by the lessor, and sufficient in form to exercise the option.' "Whether the lessor should pay the lessee's costs under Section 60 of the Civil and Administrative Tribunal Act."]

Ratio Decidendi

The Tribunal found on the balance of probabilities that on or about 15 September 2015 the lessee placed a duly signed notice exercising the option in a correctly addressed prepaid envelope and posted it by ordinary mail, and that the notice was more probably than not received into the lessor's office but misplaced there without coming to the attention of the responsible employees. The notice was sufficient in form and, under the applicable principles of service by post and the authorities on exercise of options, validly exercised the option within the option period.

Court Disposition

Application granted; declaration made that the lessee validly exercised the option to renew, and costs ordered in favour of the lessee.

Orders

  • ['Declare that the lessee Mega and Company Pty Ltd on or about 15 September 2015 validly exercised the option to renew registered lease AE778223K in respect of property Part 1/55298 being Ground Floor Shop 193 Clarence St Sydney for a term of five years commencing 1 February 2016 and terminating 31 January 2021 in...