Dad & Dave Pty Limited v W & J Nicholls Pty Ltd [2005] NSWSC 415

Dad & Dave Pty Limited v W & J Nicholls Pty Ltd [2005] NSWSC 415

The option was validly exercised because the plaintiff served written notice within time and paid the $75,000 premium required by clause 16(d). The defendant had not given a notice under s133E of the Conveyancing Act 1919 and therefore could not rely on alleged subsisting breaches, including any failure to pay GST, to defeat the option. Clause 16(d)(iii) did not require any GST on the $75,000 to be paid at the time of exercise for the exercise to be valid. Specific performance was appropriate, conditional on Mr Geoffrey Christopher Stanfield executing a guarantee of the lessee's obligations under the new lease.

Jurisdiction
Australia
Judgment Date
08 April 2005
Procedural Posture
Claim for Declaration That Option to Renew Lease Was Validly Exercised and for Specific Performance; Cross Claim / Final Judgment
Outcome
Option validly exercised; specific performance ordered conditionally; cross-claim dismissed.
Legal Topics
['option to Renew Lease' 'subsisting Breaches of Lease Covenants' 'goods and Services Tax Under Lease' 'specific Performance' 'guarantee Obligations' 'conveyancing Act 1919 S133 E']
['landlord and Tenant' 'equity' 'statutory Interpretation'] ['option to Renew Lease' 'subsisting Breaches of Lease Covenants' 'goods and Services Tax Under Lease' 'specific Performance' 'guarantee Obligations' 'conveyancing Act 1919 S133 E']

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Procedural Posture

Claim for Declaration That Option to Renew Lease Was Validly Exercised and for Specific Performance; Cross Claim / Final Judgment

Legal Issues

  1. 1 ['Whether the plaintiff validly exercised the option for a further five-year lease.' 'Whether alleged subsisting breaches of lease covenants, including failure to pay GST on the option premium, precluded exercise of the option.' 'Whether the defendant could rely on alleged breaches without giving a notice under s133E of the Conveyancing Act 1919.' 'Whether specific performance should be refused because of an alleged obligation concerning a guarantee under a separate deed.']

Ratio Decidendi

The option was validly exercised because the plaintiff served written notice within time and paid the $75,000 premium required by clause 16(d). The defendant had not given a notice under s133E of the Conveyancing Act 1919 and therefore could not rely on alleged subsisting breaches, including any failure to pay GST, to defeat the option. Clause 16(d)(iii) did not require any GST on the $75,000 to be paid at the time of exercise for the exercise to be valid. Specific performance was appropriate, conditional on Mr Geoffrey Christopher Stanfield executing a guarantee of the lessee's obligations under the new lease.

Court Disposition

Option validly exercised; specific performance ordered conditionally; cross-claim dismissed.

Orders

  • ['Declare that the plaintiff has validly exercised the option to renew lease registered number 695910P between the defendant as lessor and the plaintiff as lessee by assignment from the original lessee.' 'Order that, upon condition that Mr Geoffrey Christopher Stanfield executes a guarantee of the performance by the...