In brief - A retail lease was found to be binding despite not
being executed by both parties or registered
The New South Wales Administrative Decisions Tribunal Appeal
Panel (ADTAP) recently upheld the decision that a retail lease was
binding even though it had not been executed by both parties or
No lease documents sent for execution
Ms Roach leased a retail premises in Turramurra from Ms Kirkwood
for a period of five years from 1 May 1998, with an option to renew
for a further five years. In 2003 Ms Roach wrote to the executor of
Ms Kirkwood's estate, Mr Braun, seeking to exercise the option.
Despite the fact that no lease documents were ever sent to her for
execution, Ms Roach nonetheless believed that she had a second five
Offer of a lease withdrawn
After lengthy correspondence, Ms Roach eventually executed a
lease for one year, commencing 1 November 2007, with the rent
payable in advance by monthly instalments of $3,198.58. This was
$103.18 higher than the original lease executed in 1998.
On 28 March 2008 Mr Braun executed the lease. However, this was
two days after the solicitors for Ms Roach emailed him withdrawing
Ms Roach's offer of a lease.
Initial decision: lease repudiated
The Administrative Decisions Tribunal held that the parties
entered into a lease for twelve months from 1 November 2007, that
Ms Roach repudiated the lease and that Mr Braun accepted the
repudiation, thereby terminating the lease on 28 March 2008. Ms
Roach was ordered to pay damages for repudiation of the lease.
Ms Roach appealed this decision, arguing that the lease was not
binding because it had not been executed by both parties and it had
not been registered as required by the Retail Leases
Actions signal clear intention to be bound by the
The ADTAP held that Ms Roach's actions signalled a clear
intention to be bound by the lease, even though it had not yet been
executed by both parties.
The ADTAP found that by executing the lease, instructing her
solicitors to send it to the lessors' solicitors and raising no
objection to Mr Braun's email stating that it 'does not
matter really [when I execute the lease]' and that 'the
lease is effective from the November date [stipulated in the
lease]', Ms Roach had signalled her consent to be bound
immediately by the lease.
Unregistered lease may still be enforceable as an
The ADTAP found that the events giving rise to the obligations
for registration under the Act had not occurred in this case. The
ADTAP also held that the definition of lease under the Act
indicates that an enforceable lease may arise under the Act even
though it is not registered.
Furthermore, they reasoned that an unregistered lease of any
kind will still be enforceable as an agreement between the parties
What happens if a patient, particularly a mental health patient,.
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