Fedeli and Santopadre v Alex Constructions Pty Ltd [2016] NSWCATCD 34

Fedeli and Santopadre v Alex Constructions Pty Ltd [2016] NSWCATCD 34

The option to renew under the lease was validly exercised even though the notice was signed by the lessees' solicitor, as the parties had adopted a course of communication through solicitors, and this was not objected to at the relevant time. The s133E Notice issued by the lessor's solicitor was valid and issued within the statutory 14-day period after the notice of exercise of option. However, all alleged breaches except for non-payment of May rent were not proven or were historical, and the missed rent payment was found to be de minimus as it was subsequently paid and equity would grant relief. The lessees did not acquire proprietary rights to the courtyard or facilities, only ancillary...

Parties
Applicant: Gabriella Fedeli; Applicant: Domenico Santopadre; Respondent: Alex Constructions Pty Ltd
Jurisdiction
Australia
Judgment Date
04 March 2016
Procedural Posture
Leasing Dispute, Original Decision Application / Principal Judgment
Outcome
Application allowed in part. Option validly exercised; applicants entitled to renewal.
Legal Topics
Exercise of Lease Option to Renew, Validity of Notices Under Conveyancing Act, Authority of Solicitor to Act in Lease Matters, Relief Against Forfeiture, Ancillary Rights/use of Common Property, Quiet Enjoyment, Timing and Content Requirements for Statutory Notices
Property Law Landlord and Tenant Commercial Leasing Exercise of Lease Option to Renew Validity of Notices Under Conveyancing Act Authority of Solicitor to Act in Lease Matters Relief Against Forfeiture Ancillary Rights/use of Common Property +2 more

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 6 Authorities cited 26 Party arguments 2 Amounts and remedies 2
Sign in to unlock

Parties

Gabriella Fedeli

Applicant

Domenico Santopadre

Applicant

Alex Constructions Pty Ltd

Respondent

Procedural Posture

Leasing Dispute, Original Decision Application / Principal Judgment

Legal Issues

  1. 1 Whether the option to renew under the lease was validly exercised given it was signed by a solicitor rather than the lessees personally
  2. 2 Whether the s133E Notice issued by the lessor's solicitor was valid and issued within the prescribed time
  3. 3 Whether breaches specified in the s133E Notice precluded renewal of the lease

Ratio Decidendi

The option to renew under the lease was validly exercised even though the notice was signed by the lessees' solicitor, as the parties had adopted a course of communication through solicitors, and this was not objected to at the relevant time. The s133E Notice issued by the lessor's solicitor was valid and issued within the statutory 14-day period after the notice of exercise of option. However, all alleged breaches except for non-payment of May rent were not proven or were historical, and the missed rent payment was found to be de minimus as it was subsequently paid and equity would grant relief. The lessees did not acquire proprietary rights to the courtyard or facilities, only ancillary...

Court Disposition

Application allowed in part. Option validly exercised; applicants entitled to renewal.

Orders

  • The option to renew was exercised in accordance with the terms of the Lease.
  • The Applicants are entitled to the option to renew the Lease notwithstanding the s133E Notice.