Moratic Pty Ltd v Lawrence James Gordon & anor [2007] NSWSC 5

Moratic Pty Ltd v Lawrence James Gordon & anor [2007] NSWSC 5

No term excluding the operation of clause 20 was to be implied; there was no contractual variation omitting clause 20; however, a conventional estoppel arose as both parties dealt with each other on the basis that only standard rent under clause 4.1 was payable, estopping enforcement of clause 20.

Jurisdiction
Australia
Judgment Date
18 January 2007
Procedural Posture
Civil / First Instance Judgment
Outcome
Plaintiff not liable under clause 20; cross-claim dismissed; costs to plaintiff.
Legal Topics
['lease Interpretation' 'implied Terms' 'contractual Variation' 'promissory Estoppel' 'conventional Estoppel']
['contract Law' 'property Law' 'equity'] ['lease Interpretation' 'implied Terms' 'contractual Variation' 'promissory Estoppel' 'conventional Estoppel']

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Procedural Posture

Civil / First Instance Judgment

Legal Issues

  1. 1 ["Whether clause 20 of the lease (covenant to pay 'further rent') is enforceable against the lessee given the parties' conduct and statutory changes; whether a term should be implied in the lease excluding clause 20 if the legislative right of deduction was repealed; whether the lease was varied by conduct to omit clause 20; whether the landlord is estopped (promissory or conventional) from relying on clause 20."]

Ratio Decidendi

No term excluding the operation of clause 20 was to be implied; there was no contractual variation omitting clause 20; however, a conventional estoppel arose as both parties dealt with each other on the basis that only standard rent under clause 4.1 was payable, estopping enforcement of clause 20.

Court Disposition

Plaintiff not liable under clause 20; cross-claim dismissed; costs to plaintiff.

Orders

  • ['Declaration that Plaintiff is not liable to pay to Defendants any amount pursuant to provisions of clause 20 of Lease registered number I271579 of the premises known as the Oaklands Hotel, Millthorpe Street, Oaklands.' 'Cross-claim for arrears under clause 20 dismissed.' "Defendants to pay Plaintiff's costs."...