PERPETUAL TRUSTEE CO LTD v RAWLINSON AND ANOR [1992] NSWCA 186

PERPETUAL TRUSTEE CO LTD v RAWLINSON AND ANOR [1992] NSWCA 186

The regime in CL4.5.11 of the lease applies to rent payments until Annual Rent is determined, regardless of whether court proceedings have intervened. As a final and binding determination by the umpire prior to resolution of the appeal could render the appeal nugatory, a restraining order should be made preserving the subject matter pending appeal. Any alleged hardship to the lessee flows from the parties' agreement and does not warrant departure from it.

Parties
Lessor/claimant: Perpetual Trustee Co Ltd; Lessee/opponent: Crooks Michell Peacock Stewart Pty Ltd (lessee); Umpire/second Opponent: Mr P. Rawlinson
Jurisdiction
Australia
Judgment Date
08 May 1992
Procedural Posture
Notice of Motion/interlocutory Application / Application for Interlocutory Injunction Pending Appeal
Outcome
Application granted. Restraining order made. Costs ordered against lessee.
Legal Topics
Rent Review, Interlocutory Injunctions, Construction of Lease, Preservation of Subject Matter Pending Appeal
Property Law Landlord and Tenant Rent Review Interlocutory Injunctions Construction of Lease Preservation of Subject Matter Pending Appeal

Case Brief

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Parties

Perpetual Trustee Co Ltd

Lessor/claimant

Crooks Michell Peacock Stewart Pty Ltd (lessee)

Lessee/opponent

Mr P. Rawlinson

Umpire/second Opponent

Procedural Posture

Notice of Motion/interlocutory Application / Application for Interlocutory Injunction Pending Appeal

Legal Issues

  1. 1 Whether Mr Rawlinson (umpire) should be restrained from determining the Annual Rent pending appeal
  2. 2 Proper construction and operation of CL4.5.8 and CL4.5.11 of the lease
  3. 3 Whether interim payment regime under CL4.5.11 applies when proceedings are pending

Ratio Decidendi

The regime in CL4.5.11 of the lease applies to rent payments until Annual Rent is determined, regardless of whether court proceedings have intervened. As a final and binding determination by the umpire prior to resolution of the appeal could render the appeal nugatory, a restraining order should be made preserving the subject matter pending appeal. Any alleged hardship to the lessee flows from the parties' agreement and does not warrant departure from it.

Court Disposition

Application granted. Restraining order made. Costs ordered against lessee.

Orders

  • Mr Rawlinson restrained until further order from determining the Annual Rent of levels 1 to 6, 67 Albert Avenue, Chatswood.
  • Hearing of the appeal to be expedited.