ROBERT MC BROWN and PARTNERS PTY LTD v PERMANENT TRUSTEE CO LTD [1996] NSWCA 453

ROBERT MC BROWN and PARTNERS PTY LTD v PERMANENT TRUSTEE CO LTD [1996] NSWCA 453

CL5 of Schedule Two is expressed to apply notwithstanding any other provision and requires a rent review and determination as at 1 January 1994, thereby modifying CL4.1 of the Memorandum for that review. The lessor does not have a mere option to initiate the procedure; the notification and review are mandatory. The rent after this review is to be the lesser of the amount determined under CL4.1 and $150,784. The parties’ agreement, and the operation of CL5, mandated this process for the first review. As the agreed market rent was $68,096, this sum became the payable rent.

Parties
Appellant/lessee: Robert McBrown and Partners Pty Ltd; Respondent/lessor: Permanent Trustee Co Ltd
Jurisdiction
Australia
Judgment Date
30 May 1996
Procedural Posture
Appeal / Court of Appeal Decision
Outcome
Appeal upheld. Declaration in favour of lessor set aside. Orders in accordance with appeal judgment. Respondent to pay appellant's costs at trial and on appeal.
Legal Topics
Interpretation of Rent Review Clauses, Contractual Obligations in Leases, Rent Abatement, Lease Construction
Landlord and Tenant Commercial Leases Interpretation of Rent Review Clauses Contractual Obligations in Leases Rent Abatement Lease Construction

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Parties

Robert McBrown and Partners Pty Ltd

Appellant/lessee

Permanent Trustee Co Ltd

Respondent/lessor

Procedural Posture

Appeal / Court of Appeal Decision

Legal Issues

  1. 1 Whether CL5 of Schedule Two operates to require a rental review and binding determination for 1 January 1994 regardless of lessor initiation under CL4.1 of Memorandum
  2. 2 How CL5 of Schedule Two modifies or prevails over CL4.1 of Memorandum in respect of rent review and fixing formula

Ratio Decidendi

CL5 of Schedule Two is expressed to apply notwithstanding any other provision and requires a rent review and determination as at 1 January 1994, thereby modifying CL4.1 of the Memorandum for that review. The lessor does not have a mere option to initiate the procedure; the notification and review are mandatory. The rent after this review is to be the lesser of the amount determined under CL4.1 and $150,784. The parties’ agreement, and the operation of CL5, mandated this process for the first review. As the agreed market rent was $68,096, this sum became the payable rent.

Court Disposition

Appeal upheld. Declaration in favour of lessor set aside. Orders in accordance with appeal judgment. Respondent to pay appellant's costs at trial and on appeal.

Orders

  • Appeal upheld.
  • Declaration and orders of Hodgson J set aside.