Almaron Pty Limited v Jonamill Pty Limited [2009] NSWADT 89 (30 April 2009)

Last Updated: 6 May 2009

NEW SOUTH WALES ADMINISTRATIVE DECISIONS TRIBUNAL

CITATION:
Almaron Pty Limited v Jonamill Pty Limited [2009] NSWADT 89


DIVISION:
RETAIL LEASES DIVISION

PARTIES:
APPLICANT
Almaron Pty Limited

RESPONDENT
Jonamill Pty Limited



FILE NUMBERS:
085020

HEARING DATES:
4 and 5 February 2009

SUBMISSIONS CLOSED:
5 February 2009



DATE OF DECISION:
30 April 2009

BEFORE:
Rickards K - Judicial Member





LEGISLATION CITED:
Retail Leases Act 1994

CASES CITED:
Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19; (1997) AC 749

TEXTS CITED:


APPLICATION:
Declaration of rights under Lease; validity of notice

MATTER FOR DECISION:



REPRESENTATION:
APPLICANT
S Stanton, barrister
RESPONDENT
M Sneddon, barrister


ORDERS:
1 I declare that there has not been a valid exercise by the Respondent of the Respondent’s option to renew the lease of the subject premises at Shop 8A, 144-148 Cox’s Road North Ryde NSW pursuant to Clause 14.1 of the Lease agreement between the parties dated 1 February 2003
2 I declare that the Lease agreement between the parties terminated on 31 January 2008
3 Unless either party files and serves written submissions in relation to costs within 14 days, there is to be no order as to costs. If either party files and serves submissions as to costs within 14 days, the other party is to file any submissions in reply within 14 days, and decision in relation to costs will be made on the papers.


Reasons for Decision:

REASONS FOR DECISION

BACKGROUND

1 The Applicant is the owner of a shopping centre located at 144 – 148 Cox’s Road, North Ryde. Pursuant to a retail lease agreement dated 1 February 2003, ("the Lease"), it leased shop 8A at that centre to the Respondent.

2 The Respondent is a franchisor operating a chain of retail food shops under the name "Michel’s Patisserie".

3 In accordance with what would appear to be the normal business practice and requirement of the Respondent, clause 24.6 of the Lease confirmed the Applicant’s consent to the Respondent granting a licence to a franchisee to occupy the premises and to operate the business "Michel’s Patisserie" at the premises during the term of the Lease.

4 The name of the Applicant was set out as Lessor on the first page of the Lease without an address and the name of the Respondent was also set out on the first page, together with the address of its registered office as being at 9 Ferngrove Place, Granville NSW.

5 Clause 12.6 of the Lease provided as follows:-

"Notices:

A notice given by a party under this Lease shall be in writing and delivered or sent by ordinary pre-paid post to the other party at the address set out on Page 1 of this Lease unless and until either party gives notice to the other of another address for the giving of notices and any notice shall be deemed duly served at the expiration of three (3) days after the time of posting and in proving the giving of the same it shall be sufficient to prove the envelope containing the same was properly addressed, stamped and registered and put into a post office box in the Commonwealth of Australia. A notice may be signed by the Lessor or on its behalf by any manager, the secretary or other authorised officer, managing agent or solicitor for the time being of the Lessor."

6 The term of the Lease commenced on 1 February 2003 and terminated on 31 January 2008, with an option to renew for a period of five years. The Lease also provided that if the Respondent wished to renew the Lease, then it could do so by forwarding notice to the Applicant no sooner than six months before the expiration of the term of the Lease and no later than three months prior to such date. Accordingly, the Respondent was required to give notice of its intention to renew the Lease no sooner than 31 July 2007 and no later than 31 October 2007.

7 The Respondent asserts that it sent a letter on 16 October 2007 to Mr Sam Cerreto, a director of the Applicant company, in the following terms:

"Dear Sam

Re Lease Option, Shop A, 144 - 148 Cox’s Road, North Ryde

I note that the Lease expires on 31 January 2008 with a five year lease option.

We wish to exercise the Lease Option.

I would appreciate it if you would come back to me with your proposed Year One rental figures so we can discuss.

If you have any questions please feel free to contact me on 02 9738 2400 or 0418 287 420.

Yours faithfully,

David Whittaker

National Store Development Manager

Michel’s Patisserie ... "

8 The above letter was addressed to the Applicant at PO Box 144 North Ryde NSW.

9 The Applicant denies ever receiving this letter prior to 31 October 2007 when the period for renewal of the Lease expired.

10 The Applicant asserts that on 18 March 2007 it had notified the Respondent in writing that its postal address had changed from PO Box 144 North Ryde to PO Box 6180 North Ryde. This notice is claimed to have been given by way of a letter headed "Sena Developments, a Division of Alramon Pty Ltd". This letter is said by the Respondent to have been sent by pre paid post on that same day. The letter read as follows:

"Michel’s Patisserie

Attention Directors

9 Ferngrove Place

SOUTH GRANVILLE NSW 2142

To Whom it May Concern

RE: CHANGE OF POSTAL ADDRESS

Please note that the new postal address for the company is as follows:

PO Box 6180, North Ryde NSW 2113

Please ensure all correspondence is forwarded to the above address.

Yours faithfully

Salvatore Cerreto

Director"

11 The Applicant further asserts that a letter in the same terms was hand delivered on 18 March 2007 to the franchisee operating the business at Shop 8A.

12 Notwithstanding the change of postal address, the telephone numbers of the Applicant and the facsimile number remained the same.

13 Due to the Applicant’s contention that it did not receive notice of the exercise of option to renew by the Respondent within the period allowed by the Lease, it has refused to renew the Lease. The Respondent remains in occupation of the shop pending resolution of this dispute.

14 The Applicant seeks a declaration from this Tribunal to the effect that it has the right not to grant the Respondent the option, and that it is entitled to vacant possession of the shop.

ISSUES TO BE DECIDED

15 The fundamental issue to be decided is of course whether the Respondent validly exercised the option to renew the Lease.

16 There is no issue that, if properly delivered, the Respondent’s notice was valid. The preliminary issues which need to be determined are whether the Respondent’s purported notice of exercise of option was properly delivered to the Applicant pursuant to the terms of the Lease, and whether in turn the Applicant had properly notified the Respondent previously of its change of address for delivery of notices.

17 There is a quantity of evidence which has been placed before the Tribunal which does not go to these issues and which shall not be addressed within this decision.

THE APPLICANT’S CASE

18 Evidence was given on behalf of the Applicant by its two directors Mr Sam Cerreto and Mr Norm Cerreto, and also by Mr Anthony Papallo.

19 It is convenient at this point to set out that, during the hearing, the Applicant sought to introduce evidence from Mr Norm Cerreto concerning conversations which he claimed to have had with the Respondent’s manager Mr David Whittaker at a time after mediation of this dispute had been unsuccessfully undertaken in March 2008. After hearing argument, I disallowed this evidence and held that the conversations were protected by the provisions of section 131 of the Evidence Act 1995. Evidence was also given, without objection by the Respondent, by Mr Anthony Papallo concerning a similar alleged conversation. Mr Papallo is a builder retained from time to time by the Applicant, and gave evidence that he overheard a conversation between the Respondent’s manager Mr David Whittaker and both Norm and Sam Cerreto, and that in the course of that conversation he heard Mr Whittaker admit that he had not sent an option notice. This evidence was not objected to by the Respondent but was challenged as being unreliable and incorrect. Determination of the issues in dispute between the parties has not required me to decide whether or not such a conversation took place in the terms as alleged.

20 Other evidence given by Mr Norm Cerreto was that he had caused to be sent to the Respondent a letter advising of notice of change of postal address for the Applicant on 18 March 2007, as set out in paragraph 10 above. It transpires that this was a standard letter sent to a number of parties with whom the Applicant did business and that the mailing was claimed to have been physically undertaken by his father Sam Cerreto. Mr Norm Cerreto also confirmed that the Applicant’s telephone number and facsimile number did not change at this time.

21 A series of tax invoices issued by the Applicant on and after April 2007 in respect of the premises were admitted into evidence. These tax invoices are headed "Sena Developments, a Division of Alramon Pty Ltd" and contain the new post box address for the Applicant. Mr Norm Cerreto gave evidence, which was not disputed, that the rent set out in these invoices had been paid by the Respondent.

22 Mr Norm Cerreto also gave evidence that on 3 December 2007 he instructed his then solicitor to write to the Respondent to ask whether it wished to have a new Lease, because he had become aware that the Respondent had not exercised its option to renew. He stated that the Respondent then for the first time brought to his attention a letter which it claimed had been sent on 16 October 2007 to the original postal address of the Applicant and which had indicated the Respondent’s election to renew the Lease.

23 Mr Norm Cerreto denied that the Applicant had at any time received the notice dated 16 October 2007, and also stated that by that time the relevant post office box was no longer used by the Applicant. Material received under summons from Australia Post relating to the original post office box and admitted into evidence supported this contention.

24 Other documents were admitted into evidence on behalf of the Applicant which related to negotiations which had taken place between the parties concerning use of the footpath outside the shop and payment for umbrellas and garden pots which had been placed in that location. This material included a letter from the Respondent to the Applicant at its original postal address dated 18 December 2006 which set out the Respondent’s views concerning payment for these items, and a further tax invoice from the Applicant under the same heading "Sena Developments, a Division of Alramon Pty Ltd" dated 20 November 2006 to which that letter related. The Applicant asserted that, following its change of postal address in March 2007, this tax invoice was then paid by the Respondent, with payment being sent to the new postal address.

25 Mr Sam Cerreto gave evidence that he normally looked after all incoming and outgoing mail for the Applicant and that he had personally delivered notice of change of address on 18 March 2007 to shop 8A and that he had also mailed the letter advising of the Applicant’s change of address to the Respondent at its address at 9 Ferngrove Place, Granville on the same day. He also gave evidence of his normal practice in relation to clearing the post box to ensure that all incoming mail was removed. Under cross examination, it was pointed out to him that notices of change of address were not to be given directly to the shop, but he stated that he felt he should do so because he believed that the operator of the shop was paying the rent and that he had delivered it in order to tell the operator that the post office box had changed. He also advised under cross examination that the post office box had changed because the distance which he had had to travel to the old post office box had altered, and that it had become too far away for him to allow convenient access.

THE RESPONDENT’S CASE

26 Evidence was given by present and former staff of the Respondent.

27 Mr David Whittaker gave evidence. He is the National Store Development Manager of the Respondent. He related the usual custom and practice of the Respondent within its office in dealing with shops leased by it and relevant franchises. In particular, he gave evidence that in respect of each franchise business there were two separate files, one relating to lease matters, which was marked in "L", and the other relating to franchise matters which was marked "F". He gave evidence that he was assisted by a Ms Klaudia Riddell and that he and Miss Riddell were responsible for oversight and supervision of approximately 350 leases. He also gave evidence of the usual procedure which would be adopted in relation to the Respondent exercising its option to renew a lease and which he believed had been adopted in relation to the notice which was said to have been sent on 16 October 2007. His further evidence was that Ms Riddell would be responsible for checking important dates, preparing for the relevant correspondence or notice and then providing same to Mr Whittaker for review and signing. Ms Riddell would also then be responsible to photocopy the signed document and to have it sent by post. This involved taking the sealed envelope with any other mail to the reception area of the Respondent’s business and the documents being placed into an outgoing mail tray.

28 Mr Whittaker also gave evidence as to the existence of a register used by the Respondent within its office, which sets out important coming dates and events.

29 Ms Klaudia Riddell gave evidence similar to Mr Whittaker concerning the usual practice followed in the office of the Respondent in relation to giving notice of exercise of an option to renew a lease of any premises used in the conduct of the Respondent’s franchise business.

30 Neither Ms Riddell nor Mr Whittaker had any independent recollection of the particular notice being sent on or about 16 October 2007.

31 The actual files retained and used by the Respondent relating to the subject shop were not put into evidence nor was the register of "up and coming events" which was referred to by both Ms Riddell and Mr Whittaker. Both witnesses confirmed that the Respondent did not operate a system of recording incoming or outgoing mail.

32 Ms Riddell said that as at October 2007 she had been employed by the Respondent for a period of approximately 6 months, and that it was her usual practice, prior to sending any letters or notices, to check the address where such letters or notices would be sent. She said that the address which she would use for outgoing notices or correspondence to another party would be the address noted for that party upon the last piece of correspondence on the file. She stated that the only file which she would have gone to look at to obtain this address was the Lease file.

33 In cross examination, Ms Riddell was taken to a letter from the Applicant to the Respondent dated 10 July 2007 in relation to the outdoor umbrellas and garden pots. That letter dated bore the new postal address for the Applicant and requested payment of the previous tax invoice which had been sent by the Applicant to the Respondent. Ms Riddell denied ever having seen that letter before. She agreed that if it had been on the Lease File she would have seen it and that it would have alerted her to the change of address of the Applicant for the purpose of sending out the notice of exercise of option. She further stated that it was not possible that such letter had been on the Lease file because she had subsequently checked the file thoroughly and it was not there.

34 Of relevance on this point, is evidence given by Ms Nicole Bahn a solicitor employed by the Respondent. Ms Bahn also related the usual practice of the Respondent in separating correspondence and other material into two separate files, one which related to lease issues and the other containing what was deemed to relate to franchise issues, respectively referred to as "L files" and "F files". In contrast to the evidence of Ms Riddell, Ms Bahn says that she reviewed the L file prior to preparing her affidavit in these proceedings and that the letter from the Applicant dated 10 July 2007 regarding the outdoor umbrellas and pots and bearing its new postal address was contained within the L file. Ms Bahn stated that she was really only concerned in dealing with this particular issue of payment for the pots and umbrellas and so did not pay any particular attention to the postal address given for the Applicant at the head of the letter.

35 Ms Bahn was cross examined as to the appropriate criteria used to separate incoming notices or correspondence into either the L file or the F file and said that this decision was not hers to make but would be determined by the administrative staff.

36 Evidence was also given by Ms Corinne Attard who was then the group legal manager for the Respondent. Ms Attard gave evidence of the usual practice employed by the Respondent in relation to legal matters. In particular she gave evidence that mail which was delivered to the Respondent was received at reception and that anything which was addressed to the legal department or "appeared to be of legal nature" was not opened and was placed into the legal department tray where it was then collected and delivered to Ms Attard. Once Ms Attard looked at incoming material she would mark it with a "L" if it related to a lease and such document would then be filed into the L file. I am left to assume that the other documents would then be filed into the F file.

37 Ms Attard further gave evidence that because the notice of change of address dated 18 March 2007 from the Applicant did not have a "recognised landlord readily identifiable on the face of the document" or was otherwise marked for the specific attention of any person at the Respondent’s office or referred specifically to the relevant franchisee or address of the leased shop, it would not have come to Ms Attard’s attention.

DETERMINATION OF THE ISSUES

38 The Respondent contends that neither the letter sent by the Applicant on 18 March 2007, nor the subsequent tax invoices sent from April 2007 onwards, nor the letter from the Applicant to the Respondent dated 10 July 2007, all of which refer to or contain the new postal address of the Applicant, constitute proper notice of a change of address for delivery of notices as required by clause 12.6 of the Lease. The Respondent says that the sending of the letter dated 18 March 2007 must be proved under clause 12.6 in order to obtain the benefit of its deeming provisions. The Respondent also contends that the 18 March 2007 letter is not, in its form a "notice" such as is required by clause 12.6, and that there is such a complete lack of information that it would leave a reasonable recipient, such as the Respondent, in real doubt as to what the document meant. The Respondent argues that this letter was simply too vague and non specific as to constitute appropriate notice.

39 The Respondent asserts that because the letter dated 18 March 2007 from the Applicant did not validly change the address for delivery of notices pursuant to the Lease, the Respondent therefore was entitled to continue to send notices to the original post office box, and that accordingly the notice sent on 16 October 2007 was validly delivered to the Applicant pursuant to 12.6 of the Lease.

40 Clause 12.6 of the Lease provides that proof of service of any notice will be deemed to have been given if the notice is shown to have been properly addressed, stamped and registered and placed into a post office box within Australia. It is clear that the notice of exercise of option asserted to have been given by the Respondent to the Applicant on 16 October 2007 was not sent by registered mail, which is a defined form of service offered by Australia Post and which involves payment of an additional sum and receipt by the sender of certification by Australia Post as to whether or not the posted item has reached its intended address. As such, the 16 October 2007 notice said to have been sent by the Respondent does not receive the deeming benefit afforded by Clause 12.6, and instead needs to be considered within the factual background that Ms Riddell says that such notice was prepared and signed by Mr Whittaker, and then left at the front desk of the Respondent’s office for the purpose of being mailed out, presumably after being stamped.

41 Given that the notice dated 16 October 2007 does not obtain the benefit of the deeming provision, and its receipt by the Applicant is denied, can it otherwise be shown that such notice has been delivered or sent to the Applicant at its correct address for service of such notice? There was no system used by the Respondent to record outgoing mail. It is common ground that by 16 October 2007, Post Office Box 144 North Ryde was no longer used by the Applicant, but the Respondent denies that the subject notice was returned to it by Australia Post. The Applicant denies having received the notice.

42 The parallel issue which arises is whether, prior to 16 October 2007, the Applicant had properly given notice to the Respondent of its new post office box as being the Applicant’s address for receipt of notices. Determination of this issue must start with consideration of the fact that the Respondent conducted as its core business the leasing of approximately 350 shops which required communication with, and processing of information received from, a variety of lessors. The Respondent has understandably criticised the content and form of the letter claimed to have been sent by the Applicant on 18 March 2007 and says that, because of such deficient content and form, the letter did not make its way into either the L file or the F file maintained within its office.

43 The evidence given by Ms Attard on behalf of the Respondent indicates that this letter dated 18 March 2007 from the Applicant may have been received by the Respondent but that, because of its content and form, it may not have attracted sufficient attention to have been appropriately filed in either the L file or the F file. The Respondent cannot strictly deny receipt of this letter, as it did not operate any system which recorded incoming mail. However, Ms Attard gave evidence that a subsequent search of the L file and the F file by staff under her control had failed to find the letter dated 18 March 2007 from the Applicant, and that "enquiries made of the property department" had also failed to find the letter. Ms Attard conceded that the 10 July 2007 letter from the Applicant bearing its new postal address was on file when these searches were done.

44 As set out above, a reasonable summary of Ms Attard’s evidence is that the 18 March 2007 letter may have been received from the Applicant, but it was not specifically noticed or filed, and that the reason for it not being specifically noticed or placed into either the L file or the F file was its lack of specificity.

45 Accepting the evidence on behalf of the Applicant that the 18 March 2007 letter was sent by post, the absence of an incoming mail recording system for the Respondent, and the evidence of Ms Attard that the letter may have been received, I find on the balance of probabilities that the subject letter was received by the Respondent.

46 Given such finding, was this letter sufficient in its form and content to give to the Respondent notice of change of address for service of notices upon the Applicant, pursuant to the Lease?

47 In the course of submissions in relation to this question, my attention was drawn to the majority decision of the House of Lords in Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd (1997) AC 794, and in particular the judgment of Lord Justice Steyn, which is of assistance. In deciding whether a commercial tenant had validly given notice of determination of lease where it had given an incorrect date on the notice in circumstances where the subject lease merely provided for not less than six months’ written notice to be given and to expire "on the third anniversary of the term commencement date", Lord Justice Steyn at page 767 had this to say:

"This is not a case of a contractual right to determine which prescribes as an indispensable condition for its effective exercise that the notice must contain specific information.............. The principle is that that is certain which the context renders certain."

In the present matter, Clause 12.6 of the Lease simply provides that:

"Notice given by a party shall be ... delivered or sent by ordinary pre-paid post to the other party at the address set out on page 1 of this lease unless and until either party gives notice to the other of another address for the giving of notices ..."

There is no prescribed form or content set out by the Lease in relation to such a notice.

48 Further, as also set out by Lord Justice Steyn in Mannai, the question to be addressed is not how the Respondent may have understood the 18 March 2007 letter, but how a reasonable recipient in the situation of the Respondent would have understood the letter taking into account the "relevant objective contextual scene".

49 A significant component of the "relevant objective contextual scene" in the present matter is that the Respondent operates a specialised franchise system which involves the Respondent, amongst other things, being the lessee of approximately 350 retail shop premises, from which its business is then conducted through franchisees. Incoming correspondence to the Respondent should be considered within this particular context.

50 The Applicant’s 18 March 2007 letter was headed in capital letters "SENA DEVELOPMENTS" and then in smaller capital letters underneath, " A DIVISION OF ALRAMON PTY LTD". The Respondent argues that the purported notice given by this letter was misleading and therefore invalid because of the heading "SENA DEVELOPMENTS" which was a name unfamiliar to the Respondent, that there was only minimal reference in "fine print" to "Alramon Pty Ltd", and further that this term was itself incorrect and misleading because in fact Sena Developments was not a "division" of Alramon Pty Ltd at all.

51 The Respondent also raises a number of other criticisms of the 18 March 2007 letter which it says render any purported notice to be invalid or bad. In particular, the Respondent says that such purported notice fails to make any reference to the leased premises, to the registered lease, to the parties to the lease, especially the Respondent company, to the specific person responsible for putting in place the change of address or to the former contact address for the Applicant. A cursory reading of the 18 March 2007 letter shows that these assertions are factually correct.

52 Notwithstanding the correctness of these submissions concerning the 18 March 2007 letter, other relevant features of the letter are that it was directed to "Michel’s Patisserie" for the attention of the "Directors" and was properly addressed to the Respondent’s nominated business address at 9 Ferngrove Place, South Granville 2142. The letter also goes on to notify that there is a "new" postal address for the "company" as and from 18 March 2007. A reasonable recipient of that letter, in a similar position to that of the Respondent, would, in my view, consider that a business by the name of "Sena Developments" which was conducted by a company by the name of Alramon Pty Ltd wished to notify Michel’s Patisserie that all further communications as and from 18 March 2007 were to be addressed to a new postal address.

53 The next important question which would necessarily arise in the mind of such reasonable recipient would be exactly what relationship the sender of the letter had to the Respondent’s business operations. It is arguable that, to take up one of the submissions made by the Respondent, without further information, the notice given within the 18 March 2007 letter may have had the initial appearance of perhaps having little or no apparent relevance or importance to the Respondent’s business. However, in my view, a reasonable recipient of this letter, standing in the place of the Respondent and with knowledge of its franchise and lease system and operations, would reasonably have considered that this letter was clearly giving notice of a change of future address for communications in relation to the conduct of the business "Michel’s Patisserie" by the Respondent and that the ultimate identity of the party giving such notice was Alramon Pty Ltd. Notwithstanding the lack of reference within the letter to the subject premises, a recipient with knowledge and conduct of the Respondent’s business would, in my view, based upon the special manner in which the business was conducted through a large chain of leased shop premises, have reasonably considered that this letter came from one of the owners of the shop premises leased by the Respondent. In the context of this matter, the terms of the 18 March 2007 letter are sufficiently clear and unambiguous to have led a reasonable recipient in the position of the Respondent and with knowledge of the identities of the various owners from whom the shops were leased, to identify Alramon Pty Ltd as the lessor of these particular shop premises from which the Respondent conducted one of its franchise retail outlets, and accordingly to have considered that the 18 March 2007 letter was in relation to those premises.

54 There were subsequent letters and invoices between the parties after March 2007 and before October 2007 involving both requests by the Applicant for payment of rent and payment for the pots and umbrellas outside the shop premises, and subsequent payment by the Respondent, which contained or used the new postal address for the Applicant. The Applicant does not argue that these communications of themselves constitute notice under Clause 12.6 of the Lease, but I accept that they support the contention that notice had properly been given by the Applicant to the Respondent of its new address for communications prior to 16 October 2007, being the date when the Respondent contends that it posted the notice of exercise of option to the original postal address of the Applicant.

55 Given the above, I am satisfied that the Applicant did properly give notice of change of address for service of notices pursuant to clause 12.6 of the Lease prior to 16 October 2007. I am also satisfied that the Applicant did not receive the Respondent’s notice of exercise of option dated 16 October 2007. I accordingly find that the option to renew the lease was not validly exercised in that it was not received by the Applicant and was not delivered or sent to the proper address of the Applicant for the giving of notices, and that accordingly the Lease has not been validly renewed.

56 I note that the terms of the orders originally sought by the Applicant are wider in ambit than its submission during the hearing that a determination as to the validity of the purported notice of exercise of option to renew would suffice. In my view, it is sufficient to declare that the option to renew the subject Lease has not been validly exercised, and that the Lease has terminated on 31 January 2008. As there is no existing lease agreement between the parties, an application pursuant to section 19(1A) of the Retail Leases Act 1994 for the appointment of a specialist retail valuer is precluded. There has been no evidence led nor submissions made in relation to any claim for damages by the Applicant in respect of loss of fair market rent, nor is it appropriate that there be an order in relation to possession of the premises, given the finding is that there is no valid subsisting lease.

ORDERS

57 I accordingly make the following orders:

1. I declare that there has not been a valid exercise by the Respondent of the Respondent’s option to renew the lease of the subject premises at Shop 8A, 144-148 Cox’s Road North Ryde NSW pursuant to Clause 14.1 of the Lease agreement between the parties dated 1 February 2003

2. I declare that the Lease agreement between the parties terminated on 31 January 2008

3.Unless either party files and serves written submissions in relation to costs within 14 days there is to be no order as to costs. If either party files and serves submissions as to costs within 14 days, the other party is to file and serve any submissions in reply within 14 days and a decision in relation to costs will be made on the papers.