Where an option to renew a retail shop lease contains a rental provision that is void under s 18(3)(c) of the Retail Leases Act 1994 (NSW), and no other provision of the lease or agreement between the parties fixes the initial rental for the renewed term, the purported exercise of the option does not create a binding agreement for a new lease. The lessee remaining in possession becomes a tenant at will terminable on one month's notice under s 127(1) of the Conveyancing Act 1919 (NSW). An enforceable agreement for a lease and a tenancy at will are independent sources of rights, but where no enforceable agreement exists, the lessor cannot claim damages for repudiation. A party that initiates and maintains a concession on a crucial issue before the Tribunal and on internal appeal will not be permitted to resile from that concession on a further appeal to the Court of Appeal.
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