Aspromonte Pty. Limited v. Zagari [1999] NSWSC 831

Aspromonte Pty. Limited v. Zagari [1999] NSWSC 831

The defendant entered into possession and began paying rent in about mid-March 1998 during negotiations that led to a lease of at least six months with a six month option, so s 8 of the Retail Leases Act 1994 treated the retail shop lease as entered into at that earlier time. Because no effective s 16(3) certificate had been given before that lease was entered into, s 16 extended the lease to five years. The later execution of the written six month lease with a six month option, although accompanied by a valid certificate for that written lease considered alone, did not amount to a surrender and did not displace the earlier statute-extended lease.

Jurisdiction
Australia
Judgment Date
11 August 1999
Procedural Posture
Equity Division Landlord and Tenant Retail Lease Dispute by Summons and Cross Claim / Urgent Final Hearing
Outcome
The Court held that the defendant had the benefit of a lease commencing in about mid-March 1998 extended by the Retail Leases Act 1994 to five years, subject to the defendant indicating acceptance and commitment to be bound for the extended term; no agreement for a three year lease with a three year option was...
Legal Topics
['retail Leases Act 1994 Minimum Term' 'entry Into Possession and Payment of Rent' 'solicitor Certificate Under S 16' 'surrender or Displacement of Statute Extended Lease' 'caveat Removal']
['landlord and Tenant' 'retail Leases' 'equity'] ['retail Leases Act 1994 Minimum Term' 'entry Into Possession and Payment of Rent' 'solicitor Certificate Under S 16' 'surrender or Displacement of Statute Extended Lease' 'caveat Removal']

Case Brief

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Procedural Posture

Equity Division Landlord and Tenant Retail Lease Dispute by Summons and Cross Claim / Urgent Final Hearing

Legal Issues

  1. 1 ['Whether the defendant had only a month to month lease terminating on 27 August 1999 or a longer leasehold interest in the property.' 'Whether, before the execution of the written lease in June 1998, a retail shop lease had been entered into by entry into possession or payment of rent under the Retail Leases Act 1994.' 'Whether s 16 of the Retail Leases Act 1994 extended the lease term to five years.' "Whether the solicitor's certificate under s 16(3) prevented the application of the minimum five year term." 'Whether the subsequent written six month lease with a six month option surrendered, superseded or displaced any earlier statute-extended lease.' 'Whether there was an enforceable agreement apart from the Retail Leases Act for a three year lease with a three year option.']

Ratio Decidendi

The defendant entered into possession and began paying rent in about mid-March 1998 during negotiations that led to a lease of at least six months with a six month option, so s 8 of the Retail Leases Act 1994 treated the retail shop lease as entered into at that earlier time. Because no effective s 16(3) certificate had been given before that lease was entered into, s 16 extended the lease to five years. The later execution of the written six month lease with a six month option, although accompanied by a valid certificate for that written lease considered alone, did not amount to a surrender and did not displace the earlier statute-extended lease.

Court Disposition

The Court held that the defendant had the benefit of a lease commencing in about mid-March 1998 extended by the Retail Leases Act 1994 to five years, subject to the defendant indicating acceptance and commitment to be bound for the extended term; no agreement for a three year lease with a three year option was...

Orders

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