Exercising an option out of time: Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] QCA 150 (24 June 2011)

In a recent Queensland Court of Appeal decision, the tenant had purported to exercise its option out of time. The Court upheld the primary judge’s finding that:

1. the purported exercise of an option out of time constituted an offer by the tenant to enter a new lease on the same terms as the option;  and
2. the Court can look to the conduct of the parties after the formation of the alleged contract to determine whether a contract has been formed.

While the law applied by the Court is settled and not controversial, the decision serves as a reminder to landlords and tenants to properly document the creation or otherwise of a lease or agreement to lease to avoid uncertainty and protracted litigation, particularly after the exercise of an option.