Commercial Lease Option Renewal Dispute: Does a landlord’s refusal to provide a registrable Torrens lease amount to repudiation, and what damages follow when the tenant’s permitted use is unlawful under planning law?

Based on the authentic Australian judicial case Appellant (Tenant) v First Respondent (Landlord) [2025] NSWCA 175, this article disassembles the Court’s judgment process regarding evidence and law. It transforms complex judicial reasoning into clear, understandable key point analyses, helping readers identify the core of the dispute, understand the judgment logic, make more rational litigation choices, and providing case resources for practical research to readers of all backgrounds.

Chapter 1: Case Overview and Core Disputes

Basic Information

Court of Hearing: Court of Appeal, Supreme Court of New South Wales
Presiding Judge: Ward P, Leeming JA, McHugh JA
Cause of Action: Commercial lease dispute arising from exercise of option to renew; alleged repudiation; termination; planning law constraints on permitted use; damages
Judgment Date: 4 August 2025
Core Keywords:
Keyword 1: Authentic Judgment Case
Keyword 2: Option to renew and agreement for lease
Keyword 3: Registrable lease and Torrens title
Keyword 4: Repudiation and termination
Keyword 5: Development consent construction and existing use
Keyword 6: Nominal damages and loss of opportunity

Background

A Tenant operated a gym from part of the lower ground floor of a building. The Tenant held a registered lease for five years with an option to renew for a further five years. The Tenant exercised that option. Before the renewed term began, the land was sold and a new owner became the Landlord.

From that point, the relationship fell into a familiar commercial pattern: the Tenant said it had renewed and was entitled to a fresh registrable lease; the Landlord said the Tenant’s operation of the gym could not lawfully continue under the planning regime once the broader registered club operations ceased. The legal fight became a clash between contract law and planning law: one side demanding the legal formality of a registrable lease, the other asserting the practical reality that the permitted use was not legally available.

This chapter does not reveal the outcome. It sets the stage: a gym, an option lease, a change of land ownership, and a planning consent whose meaning became the hinge of the dispute.

Core Disputes and Claims

The Court was required to determine, in substance, four connected questions:

1. Planning and permitted use: Whether the development consent, properly construed, authorised a gym as a separate and independent use capable of continuing after the registered club use ceased, or whether the gym use was inextricably bound up with the club use.

2. Contract and repudiation: Whether the Landlord’s failure to provide a new lease in registrable form within a reasonable time amounted to repudiation of the binding agreement for lease arising from the exercised option and the equitable position that followed.

3. Termination: Whether the Tenant validly accepted any repudiation and terminated, or whether the Tenant’s conduct itself amounted to repudiation entitling the Landlord to terminate.

4. Remedies: Whether the Tenant could recover substantial damages for the lost commercial opportunity, or whether only nominal relief was available because the opportunity had no provable value in light of the planning constraints and the likely course of events.

The Tenant sought relief including return of a security bond and damages. The Landlord pursued arrears and other relief by cross-claim. The appeal focused on whether the primary judge erred in construction of the planning consent, in repudiation analysis, and in refusing substantial damages.

Chapter 2: Origin of the Case

A commercial lease is often a relationship of routine until one detail becomes non-negotiable. Here, that detail was the Tenant’s exercise of an option to renew, and the Landlord’s refusal to deliver a registrable Torrens title lease.

Detail Reconstruction

The relationship began with a straightforward commercial arrangement: the Tenant obtained a registered lease of premises within a larger building and operated a gym. The lease contained an option to renew for a further term. When the Tenant exercised the option, the parties were no longer negotiating whether there would be a renewed term; the legal effect of the exercise was to bring into existence a binding agreement for lease on the option terms, with the new term to begin on the nominated date.

Then ownership changed. The land was sold shortly before the renewed term commenced. The new owner stepped into the shoes of landlord for the property. But the renewed lease was never produced in registrable form. Instead, the Tenant remained in occupation and the parties proceeded on the common ground that, in equity, the Tenant held an equitable lease on substantially similar terms to those the parties were bound to enter.

That is the first strand of the story: the formal lease that should have been registered never materialised; the equitable position filled the gap.

The second strand is planning law. The permitted use in the lease was a health and fitness centre. The building had previously been associated with registered club operations. A development consent from years earlier referred to refurbishment including construction of a health club. A later planning instrument changed what was permitted without consent. The Landlord’s position was that, once the registered club use ceased, the gym could not lawfully operate as an existing use. The Tenant’s position was that the gym use was independently authorised and protected.

Conflict Foreshadowing

Two decisive moments turned routine lease administration into litigation.

First, the failure to provide a registrable lease became a signal, not an oversight. In commercial reality, a tenant expecting a multi-year term often needs the registrable lease to underpin financing, business certainty, and enforceability. A continuing refusal can communicate that the landlord will not perform the core promise of the option transaction.

Secondly, planning law became a weapon. The Landlord asserted that the Tenant was in breach of the tenant covenant to obtain and comply with all necessary consents and approvals for the permitted use. That assertion reframed the dispute: it was no longer only about paperwork and registration; it was about whether the Tenant could lawfully do what the lease said it could do.

Once each side treated the other’s stance as a fundamental renunciation, termination letters and competing repudiation allegations followed. Litigation became inevitable because both parties claimed to be the innocent party.

Chapter 3: Key Evidence and Core Disputes

Tenant’s Main Evidence and Arguments

1. Option exercise and contractual framework: Evidence of valid exercise of the renewal option, and the terms governing the obligation to grant a new lease.

2. Occupation and performance: Evidence the Tenant remained in possession and continued operating the gym, showing it acted on the basis the renewed term existed.

3. Planning material supporting independent gym use: Development consent documents, development application materials, and contemporaneous planning documents said to show the health club use was separately assessed and capable of severance.

4. Communications evidencing refusal to grant registrable lease: Letters and communications said to show the Landlord would not provide the registrable lease, amounting to repudiation.

5. Damages case as loss of opportunity: Materials intended to show the commercial opportunity had value and was lost because the Landlord’s repudiation deprived the Tenant of the renewed term.

Landlord’s Main Evidence and Arguments

1. Planning unlawfulness and breach of tenant covenant: Evidence and expert planning opinion to contend the gym use did not survive independently; once the registered club use ceased, the existing use was abandoned, so continuing gym operation was unlawful.

2. Termination narrative: Evidence that the Tenant’s purported termination itself was repudiatory because the Tenant was in breach and not ready, willing, and able to perform essential obligations.

3. Damages defence: Evidence and submissions that even if repudiation by the Landlord occurred, the Tenant could not establish substantial loss because the business could not lawfully continue and the opportunity therefore had no demonstrated value.

Core Dispute Points

1. Construction of the development consent: Did the consent authorise a gym use as a separate and independent use, or as a use integrated with the registered club?

2. Existing use protection: Was the gym use protected as an existing use under the Environmental Planning and Assessment Act 1979 (NSW), and was any existing use abandoned when the club ceased?

3. Registrable lease obligation: After exercise of an option to renew, was the Landlord obliged to provide a registrable lease within a reasonable time, and was failure repudiation?

4. Readiness and willingness: Did any planning breach prevent the Tenant from accepting repudiation, or did it merely limit remedies?

5. Value of the lost opportunity: Was there a coherent evidentiary basis to value the lost renewed term in circumstances where planning risk threatened continued operation?

Chapter 4: Statements in Affidavits

Affidavits in commercial lease disputes often become more than witness statements; they are structured narratives designed to prove a legal characterisation.

How Each Side Used Affidavits to Build a Persuasive Legal Story

The Tenant’s affidavit strategy typically aimed to establish three building blocks:

1. A clean contractual trigger: the option was exercised, the new term should have followed, and the Landlord’s obligation to provide a registrable lease was unconditional and outstanding.

2. A practical reliance narrative: the Tenant continued occupation and business operation, consistent with a renewed lease being on foot.

3. A planning interpretation: the gym was not a mere facility of a club but a functionally discrete use, with its own access and operational characteristics, said to support severability.

The Landlord’s affidavit strategy typically aimed to build a different chain:

1. A compliance-first narrative: the Tenant’s core obligation was to keep all approvals necessary for the permitted use; if the use became unlawful, the Tenant was in breach.

2. An abandonment narrative: the planning permission was said to be tied to the registered club use; when the club ceased, any protected existing use fell away.

3. A termination justification narrative: because the Tenant could not lawfully perform the permitted use, it could not claim the benefit of termination for repudiation in a way that would yield substantial compensation.

Comparing Expressions of the Same Fact to Reveal the Boundary Between Untruths and Facts

A common flashpoint was the same underlying fact stated two ways: the gym had direct access and operated as a business, but it also relied on the broader site features historically associated with the club use.

The Tenant’s phrasing would tend to emphasise separation: separate entry points, separate operations, and separate patronage patterns.

The Landlord’s phrasing would tend to emphasise integration: shared car parking assessed as part of the club site, references in planning materials to members and guests, and the planning logic that treated the gym as part of a suite of club facilities.

The Court’s task was not to choose the more dramatic narrative; it was to identify the legal character of the approved use from enduring public documents and the planning regime.

Strategic Intent Behind Procedural Directions Regarding Affidavits

In disputes combining planning law and contract law, affidavit directions matter because they define the permissible battlefield. If a party attempts to re-run planning merits rather than construing the consent, the Court will channel evidence toward admissible construction aids: the consent, incorporated documents, and context that is legitimately available to interpret a public instrument operating in rem. Procedural directions also focus cross-examination on what was known, what was incorporated, and what was legally required, rather than what one party wished had been true.

Chapter 5: Court Orders

Before the final hearing and appeal determination, the proceedings required typical commercial litigation management:

1. Orders for pleadings and amendments, including clarification of the competing repudiation cases and the legal basis for termination.

2. Orders concerning production and subpoena material, particularly from the relevant council, because the planning documents became pivotal to consent construction and existing use arguments.

3. Directions for expert evidence, especially planning expert opinion, and the sequencing of evidence to ensure the planning framework was properly explained.

4. Timetabling for written submissions and a structured approach to issues so that planning construction, repudiation, and damages could be addressed coherently rather than as overlapping rhetoric.

5. On appeal, orders dealing with whether additional evidence should be admitted, reflecting the importance of contemporaneous planning documents that had not been before the primary judge.

Chapter 6: Hearing Scene: Ultimate Showdown of Evidence and Logic

The hearing dynamic in a case like this is less about theatrics and more about disciplined, technical confrontation: planning documents against legal consequences, and commercial expectations against statutory limits.

Process Reconstruction: Live Restoration

Cross-examination and forensic challenge in such a case tends to orbit three pressure points:

1. Planning severability: When a witness asserts the gym was independent, the opposing counsel tests that assertion against incorporated planning documents that speak in the language of a registered club refurbishment and conditions linked to car parking and the club site.

2. Registrable lease refusal: When a witness downplays non-delivery as administrative delay, the cross-examination tests the duration, the communications, and whether the Landlord’s stance conveyed an unwillingness to perform.

3. Damages valuation: When a party asserts loss of opportunity, the Court expects an evidentiary pathway: what would have happened, what approvals would have been sought, what revenue and costs were likely, and whether the opportunity had any value given the planning risk.

Where the evidence is thin, the Court’s reasoning becomes decisive: the absence of proof can be as determinative as proof itself.

Core Evidence Confrontation

The decisive confrontation was between:

1. The development consent and incorporated contemporaneous documents, used to characterise the approved use of the premises; and

2. The contractual obligation arising from exercise of the option, used to determine whether the Landlord’s failure to provide a registrable lease was repudiation.

The evidence battle was not merely which party had a better story. It was whether the documents, read with the correct legal lens, allowed the Tenant to continue lawfully, and whether the Landlord’s refusal to complete the registrable lease amounted to a fundamental renunciation.

Judicial Reasoning with Original Quotation

The Court’s reasoning separated two ideas that parties often conflate: the right to terminate for repudiation, and the ability to recover substantial damages.

“There was repudiation by the Landlord in failing to supply a registrable lease.”

This statement was determinative because it treated the non-delivery of a registrable lease after option exercise as an unconditional performance obligation that could be repudiated by continued failure. The legal consequence was that the Tenant could accept repudiation even amid a planning dispute, provided the repudiation was established on objective conduct.

At the same time, the Court treated planning unlawfulness as a decisive constraint on compensable loss. Even if repudiation occurred, the Tenant still had to prove that the lost opportunity was valuable and would probably have been realised.

Chapter 7: Final Judgment of the Court

The Court allowed the appeal in part, confined to one ground concerning repudiation, and otherwise dismissed the appeal. The Court set aside certain declarations and orders made at first instance and substituted orders that, in substance:

1. Declared that the lease was validly terminated by the Tenant.

2. Entered judgment for the Tenant against the Landlord on the Tenant’s claim in the nominal sum of AUD $10.

3. Made costs orders at first instance that allocated costs differently between the Tenant’s claim and the Landlord’s cross-claim, subject to existing costs orders already made.

4. Dismissed the balance of the Tenant’s claim and dismissed the cross-claim.

5. Made no order as to the costs of the appeal.

The practical commercial result was blunt: success on repudiation did not translate into substantial damages, and the case became a cautionary example of “winning” a legal point but not achieving an economically meaningful remedy.

Chapter 8: In-depth Analysis of the Judgment: How Law and Evidence Lay the Foundation for Victory

This chapter follows the required output order: Special Analysis, then Judgment Points, Legal Basis, Evidence Chain, Judicial Original Quotation, and Analysis of the Losing Party’s Failure.

Special Analysis

The jurisprudential significance of this case lies in how the Court kept contract doctrine and planning doctrine in their proper lanes while still allowing each to shape the practical outcome.

1. Contract lane: The Court reaffirmed the legal reality that exercising an option to renew creates a binding agreement for lease on the option terms, and that a landlord’s continuing failure to provide a registrable lease within a reasonable time can amount to repudiation. This protects commercial certainty: an option is not a courtesy; it is an enforceable mechanism.

2. Planning lane: The Court treated the construction of development consent and the characterisation of “existing use” as issues of legal character, not factual preference. Even where a tenant had been operating for years, the Court insisted on identifying whether the approved use was severable, and whether continuing lawfulness existed after planning instruments changed.

3. Remedy lane: The Court separated entitlement from quantification. A party may establish repudiation and valid termination, but still recover only nominal damages if it cannot prove that the lost opportunity had value. This is not harshness; it is the law’s insistence that compensation requires proof, not assumption.

Judgment Points

1. Development consent is construed as an enduring public instrument operating in rem
   The Court approached the consent as a document intended to achieve practical results and to endure across ownership changes. This matters because later owners and occupiers are entitled to rely on what the consent objectively authorises, not what one party subjectively believed. The Court’s method protects third parties and planning integrity.

2. Severability is not solved by labels such as “ancillary”
   A gym may feel commercially independent, but planning severability is a question of fact and degree derived from the consent, incorporated documents, and conditions. The Court treated reliance on shared infrastructure, particularly car parking assessed as part of the overall development, as a strong indicator that the gym use was not free-standing in the planning sense.

3. A landlord’s obligation to provide a registrable lease after option exercise is not optional
   After an option is exercised for Torrens title land, the landlord’s obligation to deliver a registrable lease within a reasonable time is a core performance obligation. A sustained failure can manifest an unwillingness to perform, thereby constituting repudiation. This protects the tenant’s expectation that the renewed term is not merely equitable in the air but registrable in form.

4. A planning dispute does not automatically disentitle a party from accepting repudiation
   The Court recognised that a party can maintain a reasonably arguable but incorrect planning position and still accept the other party’s repudiation. This is important because it prevents a party in repudiation from immunising itself by pointing to contested compliance questions as a shield.

5. Distinguishing the agreement for lease from the equitable lease can be outcome-determinative
   The Court treated breaches of covenants in the equitable lease as conceptually distinct from breaches of the agreement for lease generated by the option exercise. This distinction matters because it prevents an alleged breach in one layer from automatically destroying rights in the other. It also clarifies the legal architecture practitioners must plead.

6. Loss of opportunity damages require proof that the opportunity had value
   Where a claim is framed as loss of opportunity, the Court required an evidentiary basis to conclude the opportunity had any value. In a planning-constrained environment, value is not presumed. The claimant must show what would likely have occurred: approvals pursued, probability of success, and commercial outcomes.

7. Nominal damages can follow despite a successful repudiation finding
   The Court’s willingness to award only nominal damages underscores a practical truth: not every repudiation produces measurable loss. Legal wrong does not always equal commercial compensation. That principle disciplines damages evidence in commercial litigation.

8. Costs can be shaped by procedural fairness and litigation conduct
   The Court’s approach to costs reflected the complexities of evidence admission and the mixed success across issues. This reinforces that appellate costs are not purely mechanical and can turn on fairness in how the case unfolded.

Legal Basis

The Court’s reasoning engaged statutory and doctrinal bases including:

1. Environmental Planning and Assessment Act 1979 (NSW), Part governing existing uses and the continuance of lawful non-conforming uses under later planning instruments.

2. Principles for construction of development consents as enduring public instruments intended to achieve practical results, including the admissible use of incorporated documents and contemporaneous materials.

3. Conveyancing Act 1919 (NSW) and Real Property Act 1900 (NSW) context for Torrens title leasing, reinforcing why a registrable lease has legal significance beyond convenience.

4. Contract law principles of repudiation, acceptance, termination, and damages, including loss of opportunity reasoning and the requirement for proof of value.

Evidence Chain

Victory Point 1: Objective proof of option exercise and the creation of a binding agreement for lease
Conclusion = Clear option exercise + contractual mechanism for renewal + obligation to grant renewed lease on stated terms.

Victory Point 2: Continued non-delivery of a registrable lease within a reasonable time
Conclusion = Sustained failure to provide registrable lease + communications showing refusal or inaction + objective manifestation of unwillingness to perform.

Victory Point 3: Planning documents incorporated into the consent revealing integrated use
Conclusion = Consent text + incorporated parking assessment and other contemporaneous materials + conditions premised on shared infrastructure, supporting inseverability.

Victory Point 4: The planning regime change amplifying the importance of “existing use” character
Conclusion = Later planning instrument prohibiting uses without consent + reliance on existing use protection + legal characterisation of the preserved use.

Victory Point 5: Lack of probative evidence that the lost opportunity would have produced lawful, profitable continuation
Conclusion = No proven pathway to approvals + no proven probability of continued lawful operation + damages not established beyond nominal.

Victory Point 6: Pleadings and framing capturing both possible sources of the registrable lease obligation
Conclusion = The obligation to provide registrable lease supported whether viewed as arising under the original lease’s option mechanism or as an implied incident of granting a new Torrens lease, enabling repudiation to be pleaded and found.

Judicial Original Quotation

“The Tenant was only entitled to nominal damages.”

This statement was determinative on remedy because it signals that, even where repudiation is established, the Court will not award substantial compensation unless the evidentiary chain proves value. In planning-sensitive commercial tenancies, the value of a renewed term can evaporate if lawful operation is not probable or not proven.

Analysis of the Losing Party’s Failure

The losing party on the damages question failed for reasons that offer practical lessons:

1. Conflating entitlement with quantification
   Establishing repudiation is not the same as proving substantial loss. The damages case must stand on its own evidentiary legs.

2. Under-developing the counterfactual
   Loss of opportunity demands a rigorous counterfactual: what would the claimant have done, what approvals would have been sought, and what was the likelihood of success. Without this, the Court cannot move from wrongdoing to compensation.

3. Treating planning risk as background noise rather than the central commercial constraint
   In a planning dispute, the lawfulness of the permitted use is not a minor detail. It is the foundation of whether the business opportunity exists at all.

4. Insufficient proof of a lawful pathway
   Where the Landlord’s likely response would have been termination for planning breach, the claimant must show a realistic plan to regularise approvals. Absent such proof, the Court is entitled to find no compensable value.

Implications

1. A contract right can be real even when the business plan is fragile
   You can be legally right about repudiation and still be commercially unprotected if the underlying use is legally unstable.

2. Planning law is not a side issue in commercial leasing
   If your lease says you may operate a particular business, treat planning approval as the oxygen supply: invisible, essential, and fatal when absent.

3. Documents outlive people and ownership changes
   Development consents are public instruments that continue across transfers. What matters is what the consent objectively authorises, not the vibe of how the business ran for years.

4. Damages are earned through proof, not indignation
   Courts compensate losses that are established on evidence. If you cannot prove value, the law can acknowledge the wrong with a token sum.

5. Good litigation is disciplined storytelling
   The winner is often the party whose documents, pleadings, and evidence chain allow the Court to write reasons with minimal guesswork.

Q&A Session

Q1: If a landlord fails to provide a registrable lease after an option is exercised, is that always repudiation?
A: It tends to be determined by the objective conduct over time. A brief administrative delay may not be repudiation. A sustained failure, especially coupled with communications indicating unwillingness, can amount to repudiation, particularly where the obligation is unconditional and central to the bargain.

Q2: If a tenant is allegedly operating unlawfully under planning law, can the tenant still terminate for the landlord’s repudiation?
A: The Court may determine that a reasonably arguable position on planning, even if ultimately wrong, does not necessarily disentitle the tenant from accepting repudiation. However, planning unlawfulness can still be decisive on remedies because it may destroy the value of the alleged lost opportunity.

Q3: Why would the Court award only nominal damages when repudiation is found?
A: Because damages are compensatory, not punitive. If the claimant cannot prove that the commercial opportunity denied by repudiation had value, or cannot prove a likely lawful pathway to realise that opportunity, the Court may award nominal damages as recognition of a legal wrong without substantial loss proved.

Appendix: Reference for Comparable Case Judgments and Practical Guidelines

1. Practical Positioning of This Case

Case Subtype: Commercial Lease, Option Renewal, Planning-Constraint Termination Dispute
Judgment Nature Definition: Appellate Final Judgment

2. Self-examination of Core Statutory Elements

Execution Instruction Applied: The case is categorised under Property, Construction and Planning Law. The following core test standards are displayed as a rigorous reference framework only. Outcomes tend to be determined by the specific facts, the applicable planning instrument, and the precise wording of the consent and lease.

Core Test: Statutory Warranties

Was the work performed in a proper and workmanlike manner?
Step 1: Identify the relevant building work and the statutory warranty source in the jurisdiction.
Step 2: Determine what “proper and workmanlike” requires by reference to objective construction standards and contemporaneous industry practice.
Step 3: Link defects or performance shortfalls to measurable consequences.
Step 4: Consider whether any limitation clauses or statutory defences reduce liability.
Step 5: Prove causation between defective work and loss with credible expert evidence.

Were the materials supplied good and suitable for the purpose?
Step 1: Identify the purpose, including any expressed purpose and any obvious purpose.
Step 2: Establish what materials were supplied and whether they met applicable standards.
Step 3: Prove unsuitability by reference to failure modes or departures from standard.
Step 4: Assess whether the defect was latent or patent at handover.
Step 5: Quantify rectification cost or diminution in value, avoiding double recovery.

Core Test: Defects

Is it a Major Defect or a Minor Defect?
Step 1: Identify the statutory definition applicable in the jurisdiction.
Step 2: Assess whether the defect renders the building uninhabitable or causes, or is likely to cause, the destruction of the building, or a threat to safety.
Step 3: Determine the warranty period and whether the claim is in time.
Step 4: Consider whether multiple smaller defects, in combination, might meet a major defect threshold depending on the statutory scheme.
Step 5: Prepare evidence: expert report, photographs, contemporaneous notices, and a clear chronology of discovery and notification.

Does the defect render the building uninhabitable or cause the destruction of the building?
Step 1: Define the legal test for uninhabitability or destruction risk in the relevant statute.
Step 2: Prove the practical impact: inability to occupy, safety risk, or systemic failure.
Step 3: Establish causal connection between the work and the condition.
Step 4: Address alternative causes: maintenance failure, misuse, intervening events.
Step 5: Quantify loss using an accepted method: rectification, alternative accommodation, business interruption where permissible.

Core Test: Planning

Have the conditions of the Development Application or the consent been breached?
Step 1: Identify the consent, the incorporated documents, and all operative conditions.
Step 2: Construe the consent as an enduring public instrument intended to achieve practical results, focusing on what it objectively authorises.
Step 3: Identify the approved use and its legal character at an appropriate level of generality.
Step 4: Determine whether the current use matches the approved use, including whether the use is severable or integrated with a broader use.
Step 5: Evaluate compliance with conditions that may be determinative, such as car parking, access, hours, patronage limits, or operational linkages.
Step 6: If the planning instrument has changed, determine whether existing use protection applies and whether abandonment is alleged and provable.
Step 7: If enforcement risk exists, consider whether regularisation is realistically available: modification, new consent, change of use approval, or alternate lawful use.

3. Equitable Remedies and Alternative Claims

Execution Instruction Applied: In planning-constrained commercial leasing, equity can offer alternative routes where statutory pathways are exhausted, but relief tends to be determined by whether reliance, detriment, and unconscionability are proven.

Promissory or Proprietary Estoppel

Did the other party make a clear and unequivocal promise or representation?
Evidence focus: written assurances, repeated conduct, draft lease delivery promises, or communications indicating the tenant would receive a registrable lease and could continue occupation.

Did you act in detrimental reliance on that promise?
Evidence focus: fit-out expenditure, marketing spend, staff hiring, long-term membership contracts, equipment finance, or surrender of other premises.

Would it be unconscionable for the other party to resile from that promise?
Assessment focus: imbalance created by reliance, knowledge by the promisor, and whether the tenant had reasonable alternatives.

Result Reference: Even without a written registrable lease, equity may tend to prevent a party from going back on a clear promise where reliance and detriment are established, subject to planning law constraints on the lawfulness of the underlying use.

Unjust Enrichment or Constructive Trust

Has the other party received a benefit at your expense?
Examples: tenant-funded improvements increasing property value, or payments retained despite repudiation.

Is it against conscience for the other party to retain that benefit without payment?
Assessment focus: whether the enrichment lacks a juristic reason and whether restitution is proportionate.

Result Reference: The Court may order restitution of the benefit or recognise equitable interests where the factual matrix supports it, although commercial leases often require careful navigation of contractual allocation of risk.

Procedural Fairness

If the dispute involves regulatory action or council enforcement steps that affect the tenancy, procedural fairness principles can become relevant.
Did the decision-maker afford natural justice?
Was there an opportunity to be heard?
Was there an apprehension of bias?
Result Reference: Procedural fairness arguments are central to judicial review, and may be relevant where a planning decision process is challenged, although private lease disputes usually litigate planning effects indirectly through contractual obligations.

Ancillary Claims

If a claim for substantial damages fails, consider whether alternative relief is available:
1. Restitutionary relief for payments made without basis.
2. Declaratory relief clarifying termination validity to protect future risk.
3. Narrow damages for discrete proven losses not dependent on long-term lawful operation.

4. Access Thresholds and Exceptional Circumstances

Execution Instruction Applied: The following thresholds are general reference points and are not absolute. Outcomes tend to be determined by jurisdiction, the planning instrument, and evidence of continuity or abandonment.

Regular Thresholds

Planning:
1. A prohibited use without consent tends to expose the occupier and owner to enforcement risk.
2. Existing use protection tends to require a lawful use immediately before the prohibiting instrument commenced, or a use consented and carried out in the required statutory window.
3. Abandonment tends to be alleged where the underlying approved use ceases and the factual matrix shows intention not to resume.

Commercial leasing:
1. Option exercise generally must comply strictly with the lease mechanism, including timing and notice requirements.
2. A registrable lease is commonly required for Torrens title land for multi-year terms; delay or refusal may become legally significant.
3. Damages for loss of opportunity generally require proof of value and probability, not speculation.

Exceptional Channels

Planning:
1. Even where existing use protection is doubtful, a new consent or modified consent may sometimes be pursued, depending on zoning, strategic planning controls, and council discretion.
2. Where enforcement risk exists, negotiated interim arrangements can reduce exposure while approvals are pursued, though outcomes tend to be determined by the regulator’s stance.

Commercial leasing:
1. Even where planning compliance is contested, a party may still accept repudiation if the other party’s conduct objectively manifests unwillingness to perform a core obligation.
2. Where substantial damages are difficult, parties often focus on declarations, bond recovery, and costs outcomes as practical relief.

Suggestion: Do not abandon a potential claim simply because you do not meet the standard time or conditions. Carefully compare your circumstances against the exceptions above, as they are often the key to successfully filing a case.

5. Guidelines for Judicial and Legal Citation

Citation Angle:
It is recommended to cite this case in submissions involving:
1. Option renewal disputes where a registrable lease is not provided within a reasonable time.
2. Repudiation analysis in the context of Torrens title leasing and equitable lease consequences.
3. Loss of opportunity damages where planning illegality or regulatory risk bears on the value of the lost bargain.
4. Construction of development consents as enduring public instruments operating in rem, including the use of incorporated documents.

Citation Method:
As Positive Support: When your matter involves an exercised option and a landlord’s prolonged refusal to provide a registrable lease, this authority can strengthen an argument that repudiation may be established by objective conduct.
As a Distinguishing Reference: If the opposing party cites this case against substantial damages, emphasise any uniqueness such as a clear lawful pathway to approvals, proof of probability of continued lawful operation, and quantified commercial value supported by admissible evidence.

Anonymisation Rule: Use procedural titles such as Appellant/Respondent and descriptive roles such as Tenant/Landlord, rather than party names.

Conclusion

This case distils a hard-edged lesson for commercial tenants and landlords: the law will recognise a broken promise to grant the registrable lease you bargained for, but the law will not pay you substantial compensation unless you can prove the opportunity you lost was real, lawful, and valuable on evidence.

Everyone needs to understand the law and see the world through the lens of law. The in-depth analysis of this authentic judgment is intended to help everyone gradually establish a new legal mindset: True self-protection stems from the early understanding and mastery of legal rules.

Golden Sentence: In commercial litigation, the strongest right is the one you can prove end-to-end, from lawful entitlement to measurable value.

Disclaimer

This article is based on the study and analysis of the public judgment of the Supreme Court of New South Wales Court of Appeal (Appellant (Tenant) v First Respondent (Landlord) [2025] NSWCA 175), aimed at promoting legal research and public understanding. The citation of relevant judgment content is limited to the scope of fair dealing for the purposes of legal research, comment, and information sharing.

The analysis, structural arrangement, and expression of views contained in this article are the original content of the author, and the copyright belongs to the author and this platform. This article does not constitute legal advice, nor should it be regarded as legal advice for any specific situation.

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