Fewson v Wells [1999] NSWSC 1124

Fewson v Wells [1999] NSWSC 1124

The plaintiff established, on the evidence, that the disputed clause 38 formed part of the lease. The defendants' own evidence that they expected a minimum twelve months and thereafter three months notice did not provide a basis for treating the lease as agreed unless it included the disputed clause, and clause 35 to some extent supported that conclusion. Accordingly, the plaintiff was entitled to a declaration as to entitlement to possession, and at least the second notice to terminate was valid.

Jurisdiction
Australia
Judgment Date
23 November 1999
Procedural Posture
Landlord and Tenant; Lease Possession Dispute / Judgment After Hearing in the Equity Division
Outcome
Plaintiff entitled to declaration as to entitlement to possession; defendants to pay plaintiff's costs.
Legal Topics
['form and Contents of Lease' 'termination Clause' 'notice to Quit' 'possession of Leased Premises' 'factual Dispute About Lease Annexures']
['landlord and Tenant' 'property Law' 'contract Law'] ['form and Contents of Lease' 'termination Clause' 'notice to Quit' 'possession of Leased Premises' 'factual Dispute About Lease Annexures']

Case Brief

Summary, issues, holding and outcome

More case intelligence is available

Unlock the full research layer for this judgment.

Full judgment text Downloadable case file Legal principles 1 Authorities cited 2 Party arguments 2 Amounts and remedies 1
Sign in to unlock

Procedural Posture

Landlord and Tenant; Lease Possession Dispute / Judgment After Hearing in the Equity Division

Legal Issues

  1. 1 ['Whether the lease between Fewson Pty Limited and the defendants contained clause 38 permitting termination by either lessor or lessee on three months notice in writing.' 'Whether a notice of termination was valid if clause 38 was included in the lease.' 'Whether the plaintiff was entitled to possession of the premises.']

Ratio Decidendi

The plaintiff established, on the evidence, that the disputed clause 38 formed part of the lease. The defendants' own evidence that they expected a minimum twelve months and thereafter three months notice did not provide a basis for treating the lease as agreed unless it included the disputed clause, and clause 35 to some extent supported that conclusion. Accordingly, the plaintiff was entitled to a declaration as to entitlement to possession, and at least the second notice to terminate was valid.

Court Disposition

Plaintiff entitled to declaration as to entitlement to possession; defendants to pay plaintiff's costs.

Orders

  • ['The plaintiff is entitled to the declaration sought as to entitlement to possession.' 'The Court will hear argument as to when possession should be given.' 'The defendants must pay the costs of the plaintiff.']