Barak Pty Limited v WTH Pty Limited [2003] NSWSC 15

Barak Pty Limited v WTH Pty Limited [2003] NSWSC 15

Rectification is granted as both parties’ common intention was for the development consent condition to apply to the combined premises. As at the relevant time, the conditions imposed by the Council were objectively and subjectively satisfactory to the defendant, and/or were reasonable or usual having regard to the intended use. Accordingly, the defendant had no right to terminate the leases under clause 41, and the purported termination was ineffective. The plaintiff is entitled to rectification, judgment for unpaid rent plus interest, and costs.

Parties
Plaintiff: Barak Pty Limited; Defendant: WTH Pty Limited trading as Avis Australia
Jurisdiction
Australia
Judgment Date
10 February 2003
Procedural Posture
Civil / Final Judgment at Trial
Outcome
Plaintiff entitled to rectification and to judgment for unpaid rent plus interest; defendant's cross-claim dismissed; defendant to pay plaintiff's costs.
Legal Topics
Rectification of Instruments, Interpretation of Lease Conditions, Development Consent Requirements, Termination of Lease
Contract Law Equity Rectification of Instruments Interpretation of Lease Conditions Development Consent Requirements Termination of Lease

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Parties

Barak Pty Limited

Plaintiff

WTH Pty Limited trading as Avis Australia

Defendant

Procedural Posture

Civil / Final Judgment at Trial

Legal Issues

  1. 1 Correct construction of clause 41 of each lease regarding development consent
  2. 2 Whether clause 41 reflects the parties' agreement or should be rectified
  3. 3 Whether purported termination by defendant was in accord with lease provisions after rectification

Ratio Decidendi

Rectification is granted as both parties’ common intention was for the development consent condition to apply to the combined premises. As at the relevant time, the conditions imposed by the Council were objectively and subjectively satisfactory to the defendant, and/or were reasonable or usual having regard to the intended use. Accordingly, the defendant had no right to terminate the leases under clause 41, and the purported termination was ineffective. The plaintiff is entitled to rectification, judgment for unpaid rent plus interest, and costs.

Court Disposition

Plaintiff entitled to rectification and to judgment for unpaid rent plus interest; defendant's cross-claim dismissed; defendant to pay plaintiff's costs.

Orders

  • Leases to be rectified by inserting 'together with the other premises' in clause 41 of each lease.
  • Judgment for plaintiff for unpaid rent and interest (quantum to be agreed between parties).