Kevin Edward Smith & Anor v Scott Lutiger T/As Scott Doney Autos & Anor [2000] NSWSC 233

Kevin Edward Smith & Anor v Scott Lutiger T/As Scott Doney Autos & Anor [2000] NSWSC 233

The alleged agreement for lease until the end of 2000 was not proved because the 8 January 1998 letter did not contain concluded terms capable of simple acceptance and the surrounding conduct did not establish an agreement. Although Mr and Mrs Smith remained trustees and the defendants had a lease terminable on one month's notice, that lease was granted without Mrs Smith's authority and bound only Mr Smith and/or Tresaire. The rights asserted by the defendants were therefore rights against Mr Smith and/or Tresaire, and the one month's notice given with their authority was valid. Mr Smith, as registered proprietor, was entitled to possession.

Jurisdiction
Australia
Judgment Date
20 March 2000
Procedural Posture
Proceedings Seeking Possession of Property and Damages, With a Cross Claim by the Defendants / Judgment After Hearing
Outcome
Judgment for the plaintiffs for possession; cross-claim dismissed.
Legal Topics
['invalid Appointment of New Trustee' 'agreement for Lease' 'holding Over From Month to Month' 'notice to Terminate Lease' "registered Proprietor's Entitlement to Possession"]
['trusts and Trustees' 'property Law' 'real Property' 'leases'] ['invalid Appointment of New Trustee' 'agreement for Lease' 'holding Over From Month to Month' 'notice to Terminate Lease' "registered Proprietor's Entitlement to Possession"]

Case Brief

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Procedural Posture

Proceedings Seeking Possession of Property and Damages, With a Cross Claim by the Defendants / Judgment After Hearing

Legal Issues

  1. 1 ['Whether the defendants had an agreement entitling them to a lease of the premises until the end of 2000.' "If there was no such agreement for lease, whether the one month's notice given to the defendants was a valid notice." 'Whether the first plaintiff as registered proprietor was entitled to possession.']

Ratio Decidendi

The alleged agreement for lease until the end of 2000 was not proved because the 8 January 1998 letter did not contain concluded terms capable of simple acceptance and the surrounding conduct did not establish an agreement. Although Mr and Mrs Smith remained trustees and the defendants had a lease terminable on one month's notice, that lease was granted without Mrs Smith's authority and bound only Mr Smith and/or Tresaire. The rights asserted by the defendants were therefore rights against Mr Smith and/or Tresaire, and the one month's notice given with their authority was valid. Mr Smith, as registered proprietor, was entitled to possession.

Court Disposition

Judgment for the plaintiffs for possession; cross-claim dismissed.

Orders

  • ['The defendants give to the first plaintiff possession of the property Unit 1, 34-36 Plasser Crescent, St Marys.' 'Leave given for the issue of a writ of possession, with a direction that the writ must not be executed prior to 1 May.' 'The cross-claim is dismissed.' 'The defendants will continue to pay an...