Lugarno Petroleum Pty Limited v Gabriel Shimess [2008] NSWSC 983

Lugarno Petroleum Pty Limited v Gabriel Shimess [2008] NSWSC 983

The plaintiff failed to prove a concluded antecedent oral agreement that net rent of $1,000 per week would be paid. Although the plaintiff's director believed the lease reserved rent at $1,000 per week, the defendants were not aware of that mistaken belief and had been reassured by their solicitor's inquiry that the plaintiff intended the lease to provide rent of $1,000 per month. Accordingly, the defendants did not take unconscientious advantage of any mistake, and the plaintiff was not entitled to rectification, rescission, or rental adjustment.

Jurisdiction
Australia
Judgment Date
26 August 2008
Procedural Posture
Equity Division, Commercial List Proceeding by Summons Seeking Rectification or Rescission of a Lease / Ex Tempore Judgment After Hearing
Outcome
Summons dismissed; plaintiff to pay the defendants' costs.
Legal Topics
['rectification' 'rescission' 'lease Rent' 'mistake' 'unconscientious Advantage']
['equity' 'contract Law' 'property Law'] ['rectification' 'rescission' 'lease Rent' 'mistake' 'unconscientious Advantage']

Case Brief

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Procedural Posture

Equity Division, Commercial List Proceeding by Summons Seeking Rectification or Rescission of a Lease / Ex Tempore Judgment After Hearing

Legal Issues

  1. 1 ['Whether the Plaintiff agreed upon a rent of $1000 per week in about February 2006 in relation to the subject premises.' 'Whether the lease executed in about September 2006 properly reflected the agreement between the parties as to rent.' 'Whether the Defendants were aware that the Plaintiff mistakenly believed that the lease of the service station provided for a rent other than a rent of $12,000 per annum as provided in the lease document.' "If the Defendants were aware of the Plaintiff's mistaken belief, whether the Defendants took unconscientious advantage of that mistake." 'Whether the Plaintiff was entitled to rectification of the lease, rescission of the lease, or an adjustment of rent for the period 1 September 2006 to the present.']

Ratio Decidendi

The plaintiff failed to prove a concluded antecedent oral agreement that net rent of $1,000 per week would be paid. Although the plaintiff's director believed the lease reserved rent at $1,000 per week, the defendants were not aware of that mistaken belief and had been reassured by their solicitor's inquiry that the plaintiff intended the lease to provide rent of $1,000 per month. Accordingly, the defendants did not take unconscientious advantage of any mistake, and the plaintiff was not entitled to rectification, rescission, or rental adjustment.

Court Disposition

Summons dismissed; plaintiff to pay the defendants' costs.

Orders

  • ['The summons be dismissed.' "The plaintiff pay the defendants' costs." 'The exhibits remain with the papers for 28 days and thereafter be dealt with in accordance with the rules.']