Viva Plastic Pty Limited v Stoermer [2006] NSWSC 948

Procedural Posture

Proceedings Seeking a Declaration That the Plaintiff Is Entitled to a Lease of Factory Premises / Urgent Final Hearing in the Duty Judge List; Ex Tempore Judgment

Legal Issues

1. 1 ["Whether a binding agreement for lease came into existence on 13 December 2005 when the Plaintiff orally accepted the essential terms offered by the Defendant's agent, or whether any agreement was conditional upon formal execution and exchange of counterparts of the lease" 'Whether the Defendant, by his agent, represented to the Plaintiff in May 2006 that the Plaintiff was entitled to carry out substantial work on the premises so that the Defendant was estopped from denying that a binding lease had come into existence' 'If a binding agreement for lease existed, whether the Plaintiff had breached its rent obligations so as to justify termination' 'Whether the Defendant was presently entitled to vacant possession of the property']

Ratio Decidendi

Although the parties had reached consensus on sufficiently certain lease terms, the evidence did not establish a common intention that the informal acceptance on 13 December 2005 would be immediately legally binding rather than conditional on formal execution and exchange of lease counterparts. The Plaintiff had already been in occupation, did not return executed documents until after receiving the Notice to Quit, and had not paid the required bond and associated costs. The estoppel claim also failed because there was no evidence of a prior assurance by the Defendant on which the Plaintiff relied before carrying out the floor works. The Plaintiff therefore occupied only as a monthly...

Court Disposition

No binding agreement for lease; the Plaintiff occupied only as a monthly tenant and the Defendant was entitled to vacant possession after expiry of the Notice to Quit.

Orders

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