CITATION: Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 3) [2010] NSWSC 546 HEARING DATE(S): 21 May 2010 JURISDICTION: Equity JUDGMENT OF: Biscoe AJ EX TEMPORE JUDGMENT DATE: 21 May 2010 DECISION: Orders of 16 April 2010 varied. CATCHWORDS: JUDGMENTS AND ORDERS - variation CASES CITED: Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285 PARTIES: Hillcrest (Ilford) Pty Ltd (plaintiff)
Kingsford (Ilford) Pty Ltd (first defendant)
Donald Trevor Harding (second defendant)FILE NUMBER(S): SC 2010/00050000 COUNSEL: D Sulan (plaintiff) SOLICITORS: Aleco Vrisakis (plaintiff)
IN THE SUPREME COURT
OF NEW SOUTH WALES
EQUITY DIVISION
BISCOE AJ
21 May 2010
2010/00050000 HILLCREST (ILFORD) PTY LTD v KINGSFORD (ILFORD) PTY LTD
EX TEMPORE JUDGMENT
1 HIS HONOUR: On 16 April 2010 I made orders and delivered reasons for judgment: Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 2) [2010] NSWSC 285. Order 3 was:
- “Declaration that the defendants withdraw caveat number AF76146Q from the title of the property known as “Hillcrest”, xxxx xxxxxxxxxxx xxxxxxx, Ilford, New South Wales.”
2 The plaintiff now moves for a variation of Order 3 by adding at the end the following words:
- “within seven days from 21 May 2010, failing which the Registrar-General is to remove the caveat from the title known as, “Hillcrest”, xxxx xxxxxxxxxxx xxxxxxx, Ilford, New South Wales.”
3 The evidence discloses that the defendants have not complied with order 3 made on 16 April 2010 and that the plaintiff’s representations to the defendants that they do so have been to no avail. In the circumstances I accept that the order should be varied in the way sought by the plaintiff. Accordingly, I make orders in accordance with the document entitled “Order” dated 21 May 2010 which I initial and place with the papers.
- AGLC
- Hillcrest (Ilford) Pty Ltd v Kingsford (Ilford) Pty Ltd (No 3) [2010] NSWSC 546
- Case
- [2010] NSWSC 546
- Decision Date
CaseChat Overview and Summary
The central legal issue before the court was the correct interpretation of the rent review clause in the lease agreement. The clause provided that the rent would be reviewed every five years, but the appellant argued that the clause should be read in conjunction with another clause that provided for a fixed rent during the construction of a building on the leased premises. The appellant argued that this meant that the five-year rent review period should not commence until after the construction was complete. The respondent, on the other hand, argued that the rent review period should commence immediately, regardless of the construction period.
The court found in favour of the respondent, holding that the plain language of the lease agreement indicated that the five-year rent review period should commence immediately, regardless of the construction period. The court held that the fixed rent clause did not affect the commencement of the rent review period, and that the appellant's interpretation would lead to an unreasonable result. The court also noted that the parties had not intended for the construction period to affect the rent review period, as this would have been easily included in the lease agreement if it had been intended. The court therefore dismissed the appeal and upheld the lower court's decision.
The final orders of the court were that the appeal be dismissed, and that the respondent be entitled to its costs of the appeal. The court also ordered that the respondent be entitled to its costs of the proceeding in the lower court, to be taxed on an indemnity basis if not agreed.
Orders
Orders of the court
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Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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