Helicopters Pty Ltd v Bankstown Airport Limited [2009] NSWSC 889

Helicopters Pty Ltd v Bankstown Airport Limited [2009] NSWSC 889

The plaintiff owed unpaid outgoings for ex gratia land tax contributions calculated by reference to its proportion of the relevant aggregated land values, and those outgoings were moneys payable under the sublease. Because those moneys had not been paid when the plaintiff gave its Dispute Notice, clause 4.1(e) meant the plaintiff had no right to give that notice. The defendant was not precluded by waiver or estoppel from relying on clause 4.1(e), and no notice-to-remedy term was implied. Accordingly the reviewed rent was the amount stated in the defendant's Rent Review Notice, the plaintiff's summons was dismissed, and the defendant obtained declarations and money judgments for rental...

Jurisdiction
Australia
Judgment Date
31 August 2009
Procedural Posture
Equity Division Landlord and Tenant Dispute by Summons and Cross Summons / Principal Judgment After Hearing
Outcome
Plaintiff's summons dismissed; cross-summons allowed in part with declarations and money judgments for the defendant, otherwise dismissed.
Legal Topics
['rent Review Notice' 'dispute Notice' 'sublease Outgoings' 'ex Gratia Land Tax Payments' 'waiver' 'estoppel' 'implied Terms' 'bank Guarantee' 'rental Arrears']
['landlord and Tenant' 'taxes and Duties' 'equity' 'contract'] ['rent Review Notice' 'dispute Notice' 'sublease Outgoings' 'ex Gratia Land Tax Payments' 'waiver' 'estoppel' 'implied Terms' 'bank Guarantee' 'rental Arrears']

Case Brief

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Procedural Posture

Equity Division Landlord and Tenant Dispute by Summons and Cross Summons / Principal Judgment After Hearing

Legal Issues

  1. 1 ['Whether the plaintiff was precluded by clause 4.1(e) of the sublease from giving a Dispute Notice because it had not paid all rent and other moneys payable under the sublease.' 'Whether the plaintiff was liable to contribute to ex gratia land tax payments payable by the defendant under clause 26 of the head lease and, if so, how those amounts were to be calculated.' 'Whether the defendant waived, or was estopped from relying on, clause 4.1(e) by its correspondence concerning the rent review and appointment of a valuer.' 'Whether a term should be implied requiring the defendant to give notice to remedy non-payment before relying on clause 4.1(e).' 'Whether the plaintiff breached obligations to pay rent and provide an increased bank guarantee.']

Ratio Decidendi

The plaintiff owed unpaid outgoings for ex gratia land tax contributions calculated by reference to its proportion of the relevant aggregated land values, and those outgoings were moneys payable under the sublease. Because those moneys had not been paid when the plaintiff gave its Dispute Notice, clause 4.1(e) meant the plaintiff had no right to give that notice. The defendant was not precluded by waiver or estoppel from relying on clause 4.1(e), and no notice-to-remedy term was implied. Accordingly the reviewed rent was the amount stated in the defendant's Rent Review Notice, the plaintiff's summons was dismissed, and the defendant obtained declarations and money judgments for rental...

Court Disposition

Plaintiff's summons dismissed; cross-summons allowed in part with declarations and money judgments for the defendant, otherwise dismissed.

Orders

  • ['Declarations in accordance with paras 1 and 2 of the cross-summons.' 'The plaintiff/cross-defendant must pay rental arrears to the defendant/cross-claimant in the sum of $61,486.94 inclusive of GST together with interest pursuant to s 100 of the Civil Procedure Act at the rates prescribed in Schedule 5 to the...