Cermak & Anor v Ruth Consolidated Industries Pty Ltd & Anor [2004] NSWSC 882

Cermak & Anor v Ruth Consolidated Industries Pty Ltd & Anor [2004] NSWSC 882

The appeal failed because the Master was entitled to accept evidence that the Respondents genuinely believed the GST-inclusive rent provision was a deliberate and conscious change by the Appellants, leaving no basis for rectification or misleading and deceptive conduct; the Master was also correct to find that the storage area was included in the lease and that there was no separate agreement for its use.

Jurisdiction
Australia
Judgment Date
21 September 2004
Procedural Posture
Appeal From Supreme Court (master) Concerning Rectification of Lease, Damages, and Cross Claim for Breach of Covenant for Quiet Enjoyment / Appeal to a Judge of the Supreme Court From Decision of Master Macready
Outcome
Appellants' appeal dismissed with costs.
Legal Topics
['rectification of Lease' 'gst Inclusive Rent' 'misleading and Deceptive Conduct' 'appeal From Master' 'covenant for Quiet Enjoyment' 'construction of Lease' 'storage Area Under Leased Premises']
['equity' 'contract Law' 'property Law' 'trade Practices' 'civil Procedure'] ['rectification of Lease' 'gst Inclusive Rent' 'misleading and Deceptive Conduct' 'appeal From Master' 'covenant for Quiet Enjoyment' 'construction of Lease' 'storage Area Under Leased Premises']

Case Brief

Summary, issues, holding and outcome

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Procedural Posture

Appeal From Supreme Court (master) Concerning Rectification of Lease, Damages, and Cross Claim for Breach of Covenant for Quiet Enjoyment / Appeal to a Judge of the Supreme Court From Decision of Master Macready

Legal Issues

  1. 1 ['Whether the Respondents suspected the Appellants had made a mistake in drafting the new lease provision that rent was inclusive of GST' "Whether there was demonstrable error in the Master's finding of fact that the Respondents believed the GST change had been made deliberately and consciously" 'Whether the Respondents engaged in misleading and deceptive conduct for the purposes of the Trade Practices Act 1974 (Cth) by not drawing attention to the GST provision' "Whether the lease included the storage area and whether there was any separate agreement for the Appellants' use of that area"]

Ratio Decidendi

The appeal failed because the Master was entitled to accept evidence that the Respondents genuinely believed the GST-inclusive rent provision was a deliberate and conscious change by the Appellants, leaving no basis for rectification or misleading and deceptive conduct; the Master was also correct to find that the storage area was included in the lease and that there was no separate agreement for its use.

Court Disposition

Appellants' appeal dismissed with costs.

Orders

  • ["The Appellants' appeal is dismissed with costs."]