Kyrollos 4M Pty Ltd v Bassal [2018] NSWSC 833

Kyrollos 4M Pty Ltd v Bassal [2018] NSWSC 833

The plaintiff validly exercised the option to renew as no prescribed notice under s 133E was served. Both parties agreed in writing to the rent review procedure adopted by the valuer, thus varying the lease or creating an estoppel by convention; the rent determination was binding. No sufficiently serious breaches or other discretionary grounds were established to withhold specific performance. The plaintiff is entitled to a new lease, specific performance, refund of overpaid rent and costs.

Parties
Plaintiff: Kyrollos 4M Pty Ltd; First Defendant: Tarek Bassal; Second Defendant: Maysa Bassal; Third Defendant: Samia Bassal
Jurisdiction
Australia
Judgment Date
06 June 2018
Procedural Posture
Principal Judgment / Final Judgment
Outcome
Judgment for the plaintiff. Specific performance granted. Declaration that option validly exercised. Refund of overpaid rent. Defendants to pay costs.
Legal Topics
Leases, Option to Renew, Specific Performance, Rent Review, Variation of Lease, Estoppel by Convention
Land Law Equity Leases Option to Renew Specific Performance Rent Review Variation of Lease Estoppel by Convention

Case Brief

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Parties

Kyrollos 4M Pty Ltd

Plaintiff

Tarek Bassal

First Defendant

Maysa Bassal

Second Defendant

Samia Bassal

Third Defendant

Procedural Posture

Principal Judgment / Final Judgment

Legal Issues

  1. 1 Whether the plaintiff validly exercised the first option to renew the lease and is entitled to a new lease under the lease terms
  2. 2 Whether current market rent for the new lease was determined in accordance with the lease
  3. 3 Whether specific performance should be granted to enforce the obligation to grant a new lease, having regard to alleged breaches and presence or absence of prescribed notice under s 133E of Conveyancing Act

Ratio Decidendi

The plaintiff validly exercised the option to renew as no prescribed notice under s 133E was served. Both parties agreed in writing to the rent review procedure adopted by the valuer, thus varying the lease or creating an estoppel by convention; the rent determination was binding. No sufficiently serious breaches or other discretionary grounds were established to withhold specific performance. The plaintiff is entitled to a new lease, specific performance, refund of overpaid rent and costs.

Court Disposition

Judgment for the plaintiff. Specific performance granted. Declaration that option validly exercised. Refund of overpaid rent. Defendants to pay costs.

Orders

  • Declare that the plaintiff has validly exercised the first option to renew in registered lease AG268329 and is entitled to a new lease as stipulated in the lease.
  • Order that the lessor under registered lease AG268329 forthwith execute all such documents and do all such things as are necessary to grant the new lease to the plaintiff.