Sutton Investments Pty Ltd v Realistic Investments Pty Ltd

[2017] WASCA 14

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Practice and Procedure
2. › Summary judgment
3. › Arguable defence
4. › Whether defendant has arguable defence to claim
5. › Power to be exercised with great care
6. › Only in clearest of cases
1. Landlord and Tenant
2. › Lease
3. › Option to renew
4. › Exercise of option
5. › Whether option validly exercised
6. › Whether exercise must be clear and unequivocal
7. › Whether accompanying correspondence qualifies purported exercise
8. › Whether notice to be evaluated in context of circumstances of receipt

Quick Take

Where a formal notice of exercise of an option to renew a lease is accompanied by a handwritten note imposing a precondition inconsistent with the terms of the option (such as requiring agreement on a lower rent), there is at least an arguable case that the option was not clearly and unequivocally exercised. The fact that the person executing the notice is a lawyer is a factor that can be argued both ways and is not determinative on a summary judgment application.