Australian Commercial Marketing Pty Ltd v Gold [2018] NSWSC 1701

Australian Commercial Marketing Pty Ltd v Gold [2018] NSWSC 1701

On the proper construction of the Rental Agreement, exercise of the option did not depend on reaching further agreement as to rent and did not require written notice; the uncertain rent review provision was unenforceable but severable, leaving rent at $300 per week plus GST. Dr Gold verbally informed ACM in about October 2016 that she would definitely be staying, which objectively amounted to valid exercise of the option for the three year term. The evidence did not establish a concluded agreement for Dr Gold to occupy additional space, so her exclusion of ACM from parts of the premises was wrongful and amounted to trespass, while she remained liable for outstanding rent under the Rental...

Jurisdiction
Australia
Judgment Date
12 November 2018
Procedural Posture
Equity Proceedings Concerning a Rental Agreement for Occupation of Commercial/professional Office Premises / Principal Judgment After Hearing
Outcome
Option to renew validly exercised; no concluded agreement for additional space; notice to quit invalid; judgment for ACM against Dr Gold for outstanding rent, trespass damages and interest; remaining claims dismissed; each party to bear its own costs.
Legal Topics
['licences' 'option to Renew' 'construction of Commercial Agreements' 'uncertain Rent Review Clause' 'severance' 'oral Exercise of Option' 'agreement for Additional Space' 'trespass' 'specific Performance']
['land Law' 'contract Law' 'equity'] ['licences' 'option to Renew' 'construction of Commercial Agreements' 'uncertain Rent Review Clause' 'severance' 'oral Exercise of Option' 'agreement for Additional Space' 'trespass' 'specific Performance']

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Procedural Posture

Equity Proceedings Concerning a Rental Agreement for Occupation of Commercial/professional Office Premises / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Rental Agreement included oral terms about car parking and shared use of the rear shed, or should be rectified to include them.' 'Whether Dr Gold validly exercised the option to renew for a further three year term ending on 14 August 2020.' 'Whether reaching agreement on rent was a condition precedent to exercise of the option.' 'Whether the option to renew had to be exercised in writing or could be exercised verbally.' 'Whether ACM and Dr Gold concluded an agreement for Dr Gold to occupy additional space in the premises at a new rent of $500 per week.' 'Whether Dr Gold was liable for outstanding rent and damages for trespass arising from occupation of additional space and exclusion of ACM.']

Ratio Decidendi

On the proper construction of the Rental Agreement, exercise of the option did not depend on reaching further agreement as to rent and did not require written notice; the uncertain rent review provision was unenforceable but severable, leaving rent at $300 per week plus GST. Dr Gold verbally informed ACM in about October 2016 that she would definitely be staying, which objectively amounted to valid exercise of the option for the three year term. The evidence did not establish a concluded agreement for Dr Gold to occupy additional space, so her exclusion of ACM from parts of the premises was wrongful and amounted to trespass, while she remained liable for outstanding rent under the Rental...

Court Disposition

Option to renew validly exercised; no concluded agreement for additional space; notice to quit invalid; judgment for ACM against Dr Gold for outstanding rent, trespass damages and interest; remaining claims dismissed; each party to bear its own costs.

Orders

  • ['Declaration that ACM and Dr Gold entered into a Rental Agreement in respect of the premises at 107 Blackwall Road, Woy Woy in the terms of the form of the Rental Agreement sent by Ms Levis of ACM to Dr Gold on 8 August 2016, subject to an additional term that Dr Gold may without extra charge store some archive...