Thirsty Mack’s Pty Ltd v Hasbeen Pty Ltd [2008] FCA 32

Thirsty Mack’s Pty Ltd v Hasbeen Pty Ltd [2008] FCA 32

The option to purchase gave the applicant an equitable interest with priority and indefeasibility by virtue of s 117 of the Real Property Act 1886 (SA). The terms of the option, as revealed in the registered lease and extension, indicate the parties intended for the applicant to receive an unencumbered fee simple. Therefore, the first respondent was required to provide a contract for sale of the property free of the Gunabee Lease.

Parties
Applicant: Thirsty Mack's Pty Ltd; First Respondent: Hasbeen Pty Ltd; Second Respondent: Gunabee Pty Ltd
Jurisdiction
Australia
Judgment Date
25 January 2008
Procedural Posture
Proceeding Seeking Determination of Separate Questions (landlord and Tenant, Option to Purchase) / Judgment on Separately Determined Questions
Outcome
Separate questions answered in applicant's favour
Legal Topics
Options to Purchase, Equitable Interests, Land Registration, Priority of Interests
Property Law Equity Landlord and Tenant Options to Purchase Equitable Interests Land Registration Priority of Interests

Case Brief

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Parties

Thirsty Mack's Pty Ltd

Applicant

Hasbeen Pty Ltd

First Respondent

Gunabee Pty Ltd

Second Respondent

Procedural Posture

Proceeding Seeking Determination of Separate Questions (landlord and Tenant, Option to Purchase) / Judgment on Separately Determined Questions

Legal Issues

  1. 1 Whether the applicant has an equitable interest in the property pursuant to the Option to Purchase and whether such interest is prior to the Gunabee Lease
  2. 2 Whether the first respondent is required to provide to the applicant a contract for sale and purchase of unencumbered fee simple

Ratio Decidendi

The option to purchase gave the applicant an equitable interest with priority and indefeasibility by virtue of s 117 of the Real Property Act 1886 (SA). The terms of the option, as revealed in the registered lease and extension, indicate the parties intended for the applicant to receive an unencumbered fee simple. Therefore, the first respondent was required to provide a contract for sale of the property free of the Gunabee Lease.

Court Disposition

Separate questions answered in applicant's favour

Orders

  • Applicant has an equitable interest pursuant to the Option to Purchase, with priority over the Gunabee Lease
  • First respondent is required to provide to the applicant a contract for sale and purchase of unencumbered fee simple