Waldorf Australia Pty Ltd v Elias Construction Group Pty Ltd [2010] NSWSC 164

Waldorf Australia Pty Ltd v Elias Construction Group Pty Ltd [2010] NSWSC 164

Waldorf established by clear and convincing proof that Waldorf and Constructions had a common intention that the leases include an option for Waldorf to renew for a further three years, with rent for the further term to be agreed or, failing agreement, determined by a licensed valuer appointed by the parties. The evidence did not establish a common intention that a valuer be nominated by the Real Estate Institute of New South Wales if the parties could not agree on one. The court also found that Waldorf's pre-15 October 2008 communications, viewed as a whole, clearly communicated its decision to take up the further terms and therefore validly exercised the options once rectified. Because...

Jurisdiction
Australia
Judgment Date
10 March 2010
Procedural Posture
Equity Proceedings for Rectification of Residential Tenancy Agreements and Alternative Breach of Warranty of Authority Claim / Principal Judgment After Hearing
Outcome
Leases rectified; options declared validly exercised; claims against the second defendant dismissed; costs reserved.
Legal Topics
['rectification' 'common Mistake' 'common Intention' 'option to Renew Lease' 'exercise of Option' 'authority of Intermediary' 'breach of Warranty of Authority']
['equity' 'contract Law' 'property Law' 'leases and Tenancies'] ['rectification' 'common Mistake' 'common Intention' 'option to Renew Lease' 'exercise of Option' 'authority of Intermediary' 'breach of Warranty of Authority']

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Procedural Posture

Equity Proceedings for Rectification of Residential Tenancy Agreements and Alternative Breach of Warranty of Authority Claim / Principal Judgment After Hearing

Legal Issues

  1. 1 ["Whether the residential tenancy agreements failed to reflect the parties' common intention by omitting an option to renew for a further three years." 'Whether rectification should be ordered where the time for exercise of the option had passed by the date of judgment.' "Whether Waldorf's pre-15 October 2008 communications amounted to valid exercise of the options to renew." 'Whether the alternative claim against the second defendant for breach of warranty of authority needed to be determined.']

Ratio Decidendi

Waldorf established by clear and convincing proof that Waldorf and Constructions had a common intention that the leases include an option for Waldorf to renew for a further three years, with rent for the further term to be agreed or, failing agreement, determined by a licensed valuer appointed by the parties. The evidence did not establish a common intention that a valuer be nominated by the Real Estate Institute of New South Wales if the parties could not agree on one. The court also found that Waldorf's pre-15 October 2008 communications, viewed as a whole, clearly communicated its decision to take up the further terms and therefore validly exercised the options once rectified. Because...

Court Disposition

Leases rectified; options declared validly exercised; claims against the second defendant dismissed; costs reserved.

Orders

  • ['Order that each of the residential tenancy agreements made on 15 October 2005 between the plaintiff as tenant and the first defendant as landlord with respect to units 11, 14, 15, 17, 18, 23, 28, 32, 33, 35, 36, 40, 51 and 52 of premises known as 24 – 28 First Avenue Blacktown be rectified by including therein an...