Australia, Sept. 3 -- New South Wales Land and Environment Court issued text of the following judgement on Aug. 4:

1. WARD P: I have had the considerable benefit of reading in draft the respective judgments of Leeming JA and McHugh JA and therefore can be brief in what follows. I agree, for the reasons given by McHugh JA and supplemented by Leeming JA, that grounds 1, 2 and 2A (going to the planning issues raised by the appeal) are not made good.

2. As to the issues raised by grounds 3 and 4, concerning breach and repudiation, I would express my conclusion as follows, generally adopting the definitions used by McHugh JA. On the valid exercise (which was conceded) of the option contained in the Original Lease, there came into existence a binding agreement for lease on the terms provided for by cl 2.2(b) of the Original Lease. That binding agreement for lease (which might be referred to colloquially as the option lease) would, if specifically enforceable, be regarded in equity as an equitable lease.

3. Whether expressly (pursuant to the obligation in cl 2.2, which was clearly intended to have continuing operation after the cessation by effluxion of time of the Original Lease) or, as in my opinion would also be the case, pursuant to an implied obligation arising under the binding agreement to grant a lease of Torrens title land for a period of in excess of two years, CCA (the Landlord) was obliged, on the valid exercise of the option, to issue a new lease in registrable form to Interslice (the Tenant) within a reasonable time (see Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623; [1989] HCA 23). It failed to do so. To my mind, that was both a repudiation of the contractual obligation under the Original Lease and of the implied obligation arising under the equitable (or option) lease.

4. The lack of clarity in the communications between the parties (to which McHugh JA has referred) gave rise to debate as to whether the failure to issue or grant a new lease in registrable form was a repudiation of the Original Lease (cl 2.2) or the equitable lease arising from the valid exercise of the option (see, for example, the letter dated 14 April 2020 from the Landlord's solicitors to which McHugh JA has referred at [163] below). However, both possibilities were encompassed by the pleadings, as McHugh JA has noted, and in my opinion the repudiation extended to both scenarios.

5. Therefore, while I have some difficulty with the proposition (see [208](3); [220]) that the obligation to issue a new lease in registrable form arose only under the Original Lease, nothing here turns on this. The Landlord clearly repudiated its obligation to issue the new lease in registrable form and I therefore agree with the conclusion reached by McHugh JA that grounds 3 and 4 are not made good. I also agree with his Honour's conclusion as to ground 5, for the reasons his Honour gives.

6. Thus, I agree with the orders proposed by McHugh JA.

*Rest of the document can be viewed at: (https://www.caselaw.nsw.gov.au/decision/1986417655b3cbbf76a32ec1)

Disclaimer: Curated by HT Syndication.