Landlord and Tenant


Agreement for Lease

Nature of lessees interest in an agreement for lease – an agreement for a lease will be treated as giving rise to a lease in equity, but the lessee has no legal interest in the term: Chan v Cresdon Pty Ltd (1989) 168 CLR 242

Existence of lease — Non-compliance with formal requirements of lease – Lease not executed by landlord and stamped until after termination of tenancy by tenant – Whether guarantee of performance of covenants and conditions enforceable – Whether failure of consideration for guarantee – Intention that agreement constituting lease would be written agreement entered into formally: Gobblers Inc Pty Ltd v Stevens  (1993) NSW ConvR 55-665

Whether a concluded agreement for lease — parties had solicitors — formal lease to be prepared and executed — finding that earlier entry into possession was as caretakers not lessees — consideration for grant of lease not paid — held binding obligations to arise on “exchange” of lease documents and payment of the consideration — no agreement for lease prior to that time. Long & Anor v Piper & Anor [2001] NSWCA 342

Enforceable agreement for lease after defective exercise of option – consideration of acts of part performance: Mahoe Buildings v Fair Investments [1994] ANZ Conv Rep 189

How to plead an implied agreement relying on acts of part performance: Thwaites v Ryan [1984] VR 65

Agreement for lease — Application for specific performance — Contract implied from conduct — Preparation of draft lease in accordance with instructions: Landsmiths Pty Ltd v Hall [1999] NSWSC 735 at [7] – [11]

Agreement to lease — Enforceability — Lessor’s agent sent letter setting out essential terms of proposed lease — Letter stated offer subject to approval of owner Napatarra Pty Ltd v Perpetual Trustee Co Ltd [1999] NSWSC 750

Whether defendant engaged in misleading and deceptive conduct by representing intention to enter into agreement for lease — Whether defendant’s misleading and deceptive conduct causative of plaintiff’s decision to expend moneys on development — Whether plaintiff entitled to damages pursuant to s 82 Trade Practices Act – Equitable estoppel — Principles of equitable estoppel — Whether plaintiff entitled to equitable compensation for its expenditure on basis of principles of equitable estoppel — Whether defendant’s representation that it would enter into an agreement for lease with the plaintiff was sufficiently clear to found an estoppel — Whether necessary for plaintiff to assume that defendant was not free to withdraw from anticipated legal relationship — Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 considered — Whether proposed agreement for lease was sufficiently defined for an estoppel to operate — Held that defendant estopped from departing from plaintiff’s assumption that defendant would enter into agreement for lease — Held that plaintiff entitled to equitable compensation — Calculation of equitable compensation: E K Nominees Pty Ltd v Woolworths Ltd [2006] NSWSC 1172

Negotiations to lease — Enforceability — Application for declaration of entitlement to formal lease : Harrem Pty Ltd v Tebb: [2007] NSWSC 18, BC200700191

ontract – leases and tenancies – plaintiff contended he had oral agreement with defendant for lease of premises or written lease he executed and forwarded to defendant’s agent – plaintiff sought declarations of valid and binding lease and that agreement was ’partly performed’ – plaintiff also sought order for specific performance and declaration that notice to quit was invalid – defendant denied existence of contract – Conveyancing Act 1919(NSW) – Corporations Act 2001 (Cth) – Electronic Transactions Act 2000 (NSW) – authority to bind – Jones v Dunkel – ’factual consideration’ – ’legal consideration’ – whether intention to bind – offer and acceptance – held: Court not satisfied parties intended to bind themselves to oral or written agreement – parties had agreed there was no contract until a formal lease document was executed by both of them – execution of formal lease document did not occur – judgment for defendant: John Hillam v JPSF Pty Ltd [2017] NSWSC 1510

Whether the conduct of the parties gave rise to an enforceable agreement to lease — No written contract – Equity – The doctrine of part performance — Whether part performance sufficient to avoid the consequences of non-compliance with s 4 of the Statute of Frauds 1677 (Imp) and s 34 and s 35 of the Property Law Act 1969 (WA) — Claim for specific performance: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23

Assignment of Lease

Where lessee sold its business to proposed assignee of lease — Where lessee also granted to proposed assignee all rights to receive all income and revenue from the operation of the business — Where lessee agreed with proposed assignee, pending obtaining the lessor’s consent to the assignment, to comply with proposed assignee’s directions — Lessor’s consent sought but never obtained — Construction of contract — Whether contract included obligation by lessee to exercise options to renew the lease at proposed assignee’s request — Implied terms — Duty of parties to cooperate — Doctrine of non derogation from grant — Successful appellant’s right to restitution — Whether damages adequate remedy: Secure Parking (Wa) Pty Ltd v Wilson [2008] WASCA 268.

Assignment of reversion – whether such an assignment releases landlord from covenants extending to personal covenants: BHP v Chersterfield Properties Ltd [2001] 3 WLR 277 


Not to alter premises without landlord’s consent

Alteration of premises — Whether the Respondent obtained the requisite consent of the applicant to alter the premises pursuant to cl 2.13 of the Lease — Consent not obtained – damages — Appropriate measure of damage — Onus on Landlord to prove actual damage suffered — No diminution to value of building — Compensatory damages awarded for restoration of foyer to its original proportions — Nominal damages awarded for Respondent’s failure to abide by its obligations under cl 2.13 of the lease: Bowen Investments Pty Ltd v Tabcorp Holdings Ltd [2007] FCA 708 and on appeal [2008] FCAFC 38 and on appeal to High Court [2009] HCA 8

To repair

As to repair – “good and substantial repair” – meaning of: Alcatel Australia Ltd v Scarcella [1998] 44 NSWLR 349

Lessor’s duty to maintain premises in tenantable repair – when lessor acting by agent receives notice of defect – timely notice not proved: Austin v Bonney [1999] 1 Qd R 114

Lessor’s duty to maintain premises in tenantable repair – tenants right to terminate for breach  – circumstances justifying termination: Bond v Weeks [1999] 1 Qd R 134

Application for damages against lessee for breach of covenants contained in lease: Alamdo Holdings Pty Ltd v Australian Window Furnishings (NSW) Pty Ltd [2004] NSWSC 487

Quiet enjoyment

Inadequate sound insulation in flats – whether covenant concerned only to protect security of occupation – whether extending to protection from noise disturbance: Southwark London Borough v Mills [1999] 2 WLR 409

Exhaust fans to dissipate odours from restaurant — Claim by lessee that exhaust system was defective — Claim of financial loss and entitlement to terminate: Battik Pty Ltd v Hawkesbury Nominees Pty Ltd [1999] ACTSC 55


Duty on landlord to mitigate damages after termination of lease: Vickers v Stichtenoth Investments Pty Ltd (1989) 52 SASR 90. 

Claim by respondent landlord for rent and damages against appellant tenants consequent upon abandonment of lease — Tenants proposed to sublet premises — Convenant in lease requiring consent of landlord to subletting — Landlord’s consent not to be unreasonably withheld: Hodgins v Duke Nominees [2000] SASC 153 (Full Court)

Termination for breach – Damages – Ability to recover substantial damages after termination where termination based on express provision making contractual term essential. Contracts – Lease – Breach of term by lessee – Whether lessor entitled after terminating lease to recover loss of bargain damages where but for express contractual provisions providing for the consequences of breach the lessor would not have been entitled to terminate. Real property – Lease – Covenants that touch and concern the land – Whether the right to seek damages for breach of covenant to pay rent touches and concerns the land – Whether the assignee of a leasehold reversion is entitled to terminate a lease and recover loss of bargain damages, notwithstanding the absence of privity of contract between the assignee and lessee. Real property – Lease – Guarantors – Whether guarantor’s covenant to guarantee payment of rent by the lessee touches and concerns the land and passes with the leasehold reversion: Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd — [2008] HCA 10

Breach of lease clause — Measure of damages — Appeal against decision of Federal Court of Australia Full Court (FCAFC) — Appellant tenant destroyed building foyer and constructed new foyer without respondent landlord’s consent: Tabcorp Holdings Ltd v Bowen Investments Pty Ltd  [2009] HCA 8

Equitable Lease

Leases — Expiry — Occupation — Appeal from decision of magistrate — Decision finding equitable lease: NZI Insurance Australia Ltd v Baryzcha  [2002] SASC 16

Leases — Negotiations to lease — Enforceability — Application for declaration of entitlement to formal lease: Harrem Pty Ltd v Tebb [2007] NSWSC 18


Sub-lessee not estopped from relying on representation that lessor’s consent not required — Representation to found estoppel must be clear: JDM Investments Pty Ltd v Todbern Pty Ltd [2000] NSWSC 349

Application in equity with respect to assignment of lease over portion of defendant’s building Kokos International Pty Ltd v Libra Motors Pty Ltd [2005] WASC 209

Misleading or deceptive conduct and estoppel – where plaintiff negotiated with defendant for defendant to take lease of real property – where negotiations came to consensus on principal commercial terms of lease – where heads of agreement exchanged – where drafting of detailed terms of agreement of lease finalised – where defendant withdrew from negotiations and lease not executed – whether defendant engaged in misleading or deceptive conduct – whether representations made – silence – whether reliance – whether defendant engaged in unconscionable conduct – Trade Practices Act 1974 (Cth) ss 51A, 51AA, 51AC, 52. ESTOPPEL – equitable estoppel – conventional estoppel – whether defendant estopped from resiling from a mutual or common assumption that defendant would enter into binding agreement for lease – whether reliance. REMEDIES – restitution – quantum meruit – consideration of principles – whether plaintiff entitled to payment for work provided and costs incurred in connection with proposed lease: BBB Constructions v Aldi Foods [2010] NSWSC 1352


Relief against – notice stating time for remedying default – whether actual time allowed to pass before forfeiture relevant: Westbrook Holdings v Roseramble Pty Ltd (1995) 13 WAR 273

Preservation of lease – Right of re-entry: Hosking v Elizabeth City Centre [2000] SASC 346

Plaintiff (sub-lessee) sought interlocutory relief pending hearing — Judge made declaration that plaintiff had not exercised option to renew sub-lease: Liristis Holdings Pty Ltd v Wallville Pty Ltd [2001] NSWSC 958


Fixtures & fittings – relevant factors: Ball-Guymer v Livantes 102 FLR 326

What constitutes “total destruction of premises”: Re Precision Street Industrial Property Pty Ltd [1994] 2 Qd R 614

Termination of periodic tenancy- Validity of notice to quit- Expiry to be at end of one of the recurring periods of the tenancy- Insufficient evidence to ascertain date on which such period ends: Samios v Petersilka 113 FCR 63

Torrens system — Unregistered lease of retail premises — Landlord in default under mortgage — Deed of variation of lease to reduce rent after default — Requirement of variation that lessee cease to trade: Figgins Pty Ltd v SEAA Enterprises Pty Ltd (1999) 162 ALR 382 (High Court)

Existence of leases — Tenancy contract — Company in liquidation — Nature of tenancy ACN 006 530 132 Pty Ltd (in liq) v Freedman [1999] VSC 441

Directors — Lease by company — Duty of care owed by directors to tenant — Alleged duty to take reasonable care to ensure company does not breach lessor’s covenants — Whether such a duty of care exists : Tsaprazis v Goldcrest Properties Pty Ltd [2000] NSWSC 206

Liability for land tax – Whether land tax rate or charge in respect of demised premises – Whether landlord or tenant liable for land tax -Construction of lease: Australia and New Zealand Banking Group Ltd v 122 Acland Street Pty Ltd [2000] VSC 428

Effect of disclaimer of lease on guarantee: Sandtara Pty Ltd v Abigroup Ltd & Ors (1996) ANZ Conv R 633

Guarantees under Lease & Assignments

Whether guarantee runs with land or reversion – guarantee of lessee’s obligation to pay rent – transfer of reversion without express assignment: Simmons v Lee  [1998] 2 Qd R 671

Securities for obligations of lessee — Default by tenant in payment of rent and land tax — Failure to remedy breach — Repudiation and re-entry by landlord — Licence arrangement to permit tenant’s access to premises in return for immediate payment of a portion of arrears and land tax, resolution of the balance of indebtedness by payment of fees equal to the rent payable under terminated lease and reinstatement of bank guarantees — Failure to comply with all further conditions — Whether guarantees continued to apply or were discharged or extinguished on termination of the leases and grant of the licence — Whether by entry into the licence the landlords fully mitigated their loss such that the landlords’ damages were nil — Progressive Mailing House v Tabali (1984–1985) 157 CLR 17 distinguished — Koch Marine Inc v D’Amica Di Navigazione ARL [1980] 1 Lloyd’s Rep 75 and Luxer Holdings Pty Ltd v Glentham Pty Ltd (2007) 35 WAR 254 considered — Appeal dismissed: Tebb v Filsee Pty Ltd [2010] VSCA 311


Leases — Equitable leases — Lessee’s claim to possession — Injunction to put lessee into possession — Injunction to preserve status quo: Solomon v Firstline Holdings Pty Ltd [1999] WASC 143

Mesne Profits

The profits of an estate received by a tenant in wrongful possession and recoverable by the landlord – a claim for mesne profits made independently of proceedings for possession cannot be maintained if it is made before the plaintiff obtains possession of the subject premises: Min for State of the Interior v RT Co Pty Ltd (1962) 107 CLR 1


Mortgagee bound by lease – variation of lease between mortgagor and tenant – mortgagor in breach of mortgage at time of variation – mortgagee not bound by variation – whether mortgagee entitled to arrears of rent: SEAA Enterprises Pty Ltd v Figgins Holdings Pty Ltd [1998] 2 VR 90 and on appeal to High Court (1999) 162 ALR 382


Complaints against tenants — Duty of lessor — Application for leave to appeal QLD District Court decision for respondents — Respondents occupied and managed motel adjacent to applicant’s (lessor) rental property: Peden Pty Ltd v Bortolazzo [2006] QCA 350

Option to Renew

Sublease surrendered in consideration of a further sub-lease – failure of sub-lessee to comply with the formalities for exercise of option to renew under new sublease – whether sublessors estopped form denying entitlement of sublessee to a further term: S & E Promotions v Tobin Bros 122 ALR 637

Option to renew — Holding over: Marquette v Doherty [2002] NSWSC 580

Principles governing the purported exercise of an option to renew: Whitegum Petroleum Pty Ltd -v- Bernadini Pty Ltd [2010] WASC 108 at [32] – [37]

Quiet Enjoyment

Whether damagse for mental distress – only when distress caused by physical inconvenience:  Musumeci v Winadell Pty Ltd 34 NSWLR 723

Liabilities of landlord: AF Textile Printers Pty Ltd v Thalut Nominees Pty Ltd  [2007] VSC 73

Registration of leases – Consequences of Failing to Register

Whether the conduct of the parties gave rise to an enforceable agreement to lease — No written contract – Equity – The doctrine of part performance — Whether part performance sufficient to avoid the consequences of non-compliance with s 4 of the Statute of Frauds 1677 (Imp) and s 34 and s 35 of the Property Law Act 1969 (WA) — Claim for specific performance: Lighting By Design (Aust) Pty Ltd v Cannington Nominees Pty Ltd [2008] WASCA 23

Application by registered mortgagee for order for possession after liquidation of mortgagor company — unregistered lease over portion of land — lessee claiming plaintiff estopped from denying effect of lease or alternatively counterclaiming against company directors for repayment of rental monies — whether company directors unjustly enriched by receipt of rental monies paid and improvements made to land by lessees. Held: mortgagee entitled to possession — counterclaim not made out: Farmer No 1 Pty Ltd v Rignanese Pty Ltd (In Liq) and Ors [2007] SASC 326


Recovery of rent through seizure of chattels — Unlawful distress through unlawful entry — Whether constitutes irregular distress — No damage caused by entry to premises: Matthias v Scott [2000] TASSC 88

Unpaid rent — Breach of covenant — Application for recovery of rent — Lease included convenant requiring applicant to replace air-conditioning system: Sansom Nominees Pty Ltd v Meade [2005] WASC 9

Arrears of rent — Holding-over period — Application for payment of rent and outgoings — First respondent in possession of premises as monthly tenant pursuant to holding-over provisions in lease: Clambrake Pty Ltd v Tipperary Projects Pty Ltd (No 3) [2009] WASC 52

Specific Performance

Leases — Breach of lease by lessee — Abandonment of supermarket premises — Application for injunction to compel lessee to comply with terms of lease — Difficulties in forcing businesses to continue operation: Ruffy Investments Pty Ltd v Payless Superbarn (Vic) Pty Ltd [1999] VSC 458


Sublease surrendered in consideration of a further sub-lease – failure of sub lessee to comply with the formalities for exercise of option to renew under new sublease – whether sublessors estopped form denying entitlement of sublessee to a further term: S & E Promotions v Tobin Bros 122 ALR 637

Breach of sub-lease – right to re-enter – whether re-entry effected – whether premises abandoned or temporarily vacated for refurbishment – repudiation and surrender – estoppel – notice to remedy breach and notice of re-entry – whether sufficient: Leda Commercial Properties Pty Ltd v DHK Retailers Pty Ltd 111 FLR 81


Termination of tenancy – repudiation by lessee – acceptance – surrender – assessment of damages: Copperart Pty Ltd v Bayside Developments Pty Ltd 16 WAR 396