Perpetual Trustee Company Limited v Anthony Nguyen & Thi Nguyen [2015] NSWCATCD 19

Perpetual Trustee Company Limited v Anthony Nguyen & Thi Nguyen [2015] NSWCATCD 19

The objective intention of the parties, the prior communications, and the formula in clause 5.2 showed that the respondents were to pay a proportion of outgoings calculated by reference to the area of the premises over the gross lettable area of the centre, equivalent to 1.52% of total outgoings. The printed figure 0.0152% was a mistake and its literal application would produce commercial nonsense. The estoppel defence failed because the Tribunal did not accept that Mr Nguyen relied on 0.0152% and there was no evidence of reliance by Mrs Nguyen. The respondents were therefore liable for unpaid outgoings and interest, but no special circumstances justified a costs order.

Jurisdiction
Australia
Judgment Date
17 February 2015
Procedural Posture
Retail Lease Dispute Concerning Construction of Lease Terms, Mistake, Estoppel and Costs / Principal Judgment After Hearing
Outcome
Application allowed in part; respondents ordered to pay unpaid outgoings and interest, with no order as to costs.
Legal Topics
['construction of Lease Agreement' 'outgoings Under Retail Lease' 'mistake in Contractual Instrument' 'estoppel' 'interest' 'costs in Tribunal Proceedings']
['retail Leases' 'contract Law' 'civil Procedure'] ['construction of Lease Agreement' 'outgoings Under Retail Lease' 'mistake in Contractual Instrument' 'estoppel' 'interest' 'costs in Tribunal Proceedings']

Case Brief

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Procedural Posture

Retail Lease Dispute Concerning Construction of Lease Terms, Mistake, Estoppel and Costs / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether, on proper construction of the lease agreement, the respondents' proportion of total outgoings was 1.52% or 0.0152%." 'Whether the applicant was estopped from denying that the proportion of outgoings payable by the respondents was only 0.0152%.' 'Whether the applicant should recover legal costs claimed under the retail lease or costs of the proceedings.' 'Whether interest should be awarded and in what amount.']

Ratio Decidendi

The objective intention of the parties, the prior communications, and the formula in clause 5.2 showed that the respondents were to pay a proportion of outgoings calculated by reference to the area of the premises over the gross lettable area of the centre, equivalent to 1.52% of total outgoings. The printed figure 0.0152% was a mistake and its literal application would produce commercial nonsense. The estoppel defence failed because the Tribunal did not accept that Mr Nguyen relied on 0.0152% and there was no evidence of reliance by Mrs Nguyen. The respondents were therefore liable for unpaid outgoings and interest, but no special circumstances justified a costs order.

Court Disposition

Application allowed in part; respondents ordered to pay unpaid outgoings and interest, with no order as to costs.

Orders

  • ['The 1st and 2nd Respondents are to pay the sum of $164,496.03 to the Applicant.' 'There is no order made as to costs to the effect that the parties are to each bear their own costs of the proceedings.']