A Lease Agreement may not be binding
Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd  NSWCA 123
In the recent case of Harold R Finger & Co Pty Ltd v Karellas Investments Pty Ltd  NSWCA 123, the NSW Court of Appeal agreed with the orders of the Primary Judge, but for significantly different reasons. The Court found that the letter alleging to be a Lease agreement was not a binding contractual lease document. Following this, it held that the Karellas Investments (Lessee) had not repudiated the contract and that Harold R Finger & Co Pty Ltd (Landlord) had no right of termination.
This case related to the leasing of a supermarket premises in Newtown. In December 2009, the Lessee sent a letter to the Landlord for a “binding offer to enter into an Agreement for Lease”. The Landlord accepted the letter of offer in January 2010. Some of the provisions of the letter contained clauses which subjected the agreement to the provision of further formal documentation and terms to be added which had not yet been agreed on.
Following a low turnover forecast, the Lessee’s solicitors wrote to the Landlord on June 9 2010 seeking to adjust the lease terms “to see if the proposed lease terms could accommodate” the Lessee’s concerns.
After a series of letters, the Landlord alleged that the Lessee had repudiated the contract and accepted this repudiation. The Landlord then sought to terminate the contract for repudiation.
Was the Letter a valid Agreement for Lease?
The Landlord argued that the letter’s statement that it was a “binding offer to enter into an Agreement for Lease” was that both parties were bound to the lease. The Lessee denied that the letter of offer constituted a binding agreement but was simply an agreement to negotiate.
The Court found that the letter established an agreement, but questioned its actual effect. The Primary Judge held that there was an enforceable contract under which both parties agreed to be bound by rent and other terms. Though Ward JA on appeal found there was an agreement, this agreement did not bring into existence an enforceable contractual lease.
The letter clearly stipulated that the agreement would be subject to further documentation and negotiation of important terms not yet included in the letter. These clauses were construed by the Court to indicate that the agreement would not be complete without such additional terms. The letter also provided the Lessee with a right to withdraw from the agreement if the formal documents required were not executed in 12 months. The Court highlighted that the existence of such a withdrawal provision further indicated that a final agreement may not actually be reached within 12 months. Therefore, the letter could not be reasonably constructed as a final and enforceable lease document. It was an agreement to negotiate in good faith.
Could Terms in the Letter be Re-Negotiated?
As there was no provision which stated that the terms in the letter were set-in-stone, they were open to re-negotiation. The only terms the Landlord could rely on were that the Lessee would negotiate in good faith during the 12 month negotiation period. The Landlord could not rely on any terms that were being negotiated with the Lessee until such terms had been finalised.
Did the Lessee Repudiate the Agreement?
The Lessee contended that the June 9 letter did not constitute a repudiation of the agreement. The Primary Judge held that the June 9 letter was an indication of the Lessee’s willingness to negotiate only in circumstances where their demands would be met.
On appeal, the Court held that the Primary Judge’s interpretation of the June 9 letter was incorrect. Ward JA noted that the June 9 letter was in fact an invitation to negotiate. Whilst the letter may have indicated the Lessee’s potential refusal of terms presently negotiated, it was not an ultimatum. Therefore there was no repudiation. As a consequence, the Landlord did not have a valid right to terminate the contract.
Was the Termination Valid?
Whilst no right of termination arose, the Court still considered whether the contract was validly terminated by the Landlord. In a letter on June 11 2010, the Landlord’s solicitors wrote to the Lessee:
Your client’s withdrawal from the lease will result in our client incurring substantial losses. Our client will endeavour to mitigate those losses. However, we are instructed to put your client on notice that our client will hold it liable for all losses incurred by our client as a result of your client's actions.
The Landlord alleged that this letter constituted a termination of the agreement. The Court held that the letter did not reasonably make clear that the agreement was at an end and hence the agreement was not validly terminated.
Inconsistency of Clauses
Whilst the inconsistency of clauses within the letter of offer was not a vital issue in this case, it is worth noting. The letter of offer gave the Lessee the right to amend their offer. However, in a separate clause, it stipulated that the signing of the agreement would create binding heads of agreement. Due to this inconsistency the right to amend the letter of offer was only extended up to the point the letter was signed by the Landlord.
This case holds four key take-away messages:
Firstly, if a document purports to be an agreement to lease but relies on subsequent negotiations and/or documentation, it may not constitute a valid Lease Agreement.
Secondly, parties to an agreement should be very cautious in assuming a right to terminate a contract. The consequences of wrongful termination may amount to a repudiation and make the alleging party liable to damages.
Thirdly, if a party is intending to exercise a right to terminate, it should use clear language and should not proceed on an assumption. Failing to do so may constitute serving an invalid termination.
Finally, parties should be cautious when drafting terms and ensure clauses are not inconsistent with one another.
Gary Newton, Partner
Khushaal Vyas, Law Clerk