61 The evidence before me is that the area occupied by each container is not 14.78m², but is approximately 16.8m².
62 The complaint in the letter of 5 September 2007 was not a complaint about two out of three or four containers, but a complaint about all of the containers on the driveway. That complaint was resolved by the agreement for the payment of an additional rent of $183.93 per month.
63 It may be that Mr Kanevsky of PRD Nationwide was mistaken in assuming that there were only two containers on the driveway. Whether or not that is so, the dispute in relation to all of the containers was resolved by the agreement to pay the additional rent, and that is not the less so because the additional rent was calculated by reference to the area taken by two containers. Nor is the resolution of the complaint about all containers affected by the fact that the calculation of the area appears to be mistaken.
64 Mr Konstantopoulos also said that he had only authorised PRD Nationwide to give a licence revocable on a month's notice and he said that he did not authorise the quantum of the additional rent to be charged. But he and the second defendant are bound by the actions of their agent and the defendants have, in any event, ratified the agreement arising from the correspondence by pleading that agreement in the amended cross-claim.
65 It is not an express term of the correspondence that consent to the continued location of the containers could be revoked at will, or on one month's notice. The consideration for a consent to the containers remaining on-site is provided by the agreement to pay additional rent. Rent is payable as the consideration for the landlord's grant of possession of the demised premises for the term of the lease and any renewal thereof.
66 By providing that the rent was to be increased and by providing that the lease agreement would be amended to reflect the agreement in the correspondence, the defendants promised that, as long as the additional rent was paid, the containers could remain on-site for the duration of the lease or any renewal thereof.
67 The defendants did not give instructions to their solicitor to amend the lease, but that does not deprive the agreement of effect, nor does it alter the construction to be given to the correspondence. Even if the offer contained in the letter of 22 October 2007, which was accepted by the payment of the increased rent, does not give rise to a new or varied tenancy, nonetheless, it was a licence given for valuable consideration, to the continued placement of the containers on the defendants' land.
68 No doubt, such a licence can be revoked at law (Cowell v The Rosehill Racecourse Company Limited (1937) 56 CLR 605), but equity will restrain an attempted revocation of the licence in breach of contract. (See R P Meagher, J D Heydon & M Leeming, Meagher, Gummow & Lehane's Equity: Doctrines & Remedies, 4th ed (2002), LexisNexis Butterworths, at [21-260]-[21-275].)
69 As I have said, the defendant pleaded that the agreement is a variation of the lease. The plaintiff did not plead that the lease had been varied by including in the leased area, or adding to the leased area, that land on which each of the containers stood at the time the agreement was made. It would not be an objection to such a claim that parol evidence would be needed to identify the precise location and dimensions of that land (Akot Pty Ltd v Rathmines Investments Pty Ltd [1984] 1 Qd R 302). Instead, the plaintiff pleaded that the lease was varied by the inclusion of an additional area of 29.56m². However, it is impossible to say which of the sites on which the containers stood would be the subject of such a varied lease. Not only are the dimensions wrong on the evidence before me, but assuming they were right and the land referred to is the land on which stand two containers, it is impossible to say which of the areas on which two containers stand were to be included in the lease.
70 Section 54A of the Conveyancing Act provides that no proceeding may be brought upon a contract for the disposition of an interest in land, which includes a contract for the grant of a lease, unless there is some memorandum, or note of the agreement in writing, signed by the person to be charged, or by a person lawfully authorised by the party to be charged. A memorandum to satisfy s 54A must, amongst other things, identify with certainty the land to be the subject of the disposition. There is no such certainty in relation to an area of 29.56m².
71 Accordingly, the plaintiff is not entitled to the relief which it seeks that the lease has been varied in the way pleaded.
72 The defendants submitted that if, by reason of s 54A, there is not an enforceable agreement to vary the lease, the agreement could not be relied upon as a licence. This, it was said, would be a backdoor method of enforcing an otherwise unenforceable claim.
73 I do not think this is correct in principle. No authority for it was cited. There is no doubt that an agreement which is not enforceable by specific performance because of s 54A can, nonetheless, give rise to legally enforceable rights, for example, a right to claim damages for breach of the agreement. I do not see why, as a matter of principle, an agreement which cannot be specifically enforced as an agreement for the disposition of an interest in land cannot, nonetheless, be operative as a consent to what would otherwise amount to a trespass.
74 For these reasons, I consider that consent to the location of the containers on the land was also given in 2007. That consent was not capable of being revoked, either at will, or on the giving of 28 days' notice. It follows for this reason also, that there was not a breach of the lease, as claimed in the notice of 21 October 2009. It also follows that the defendants' claim for damages, or an injunction for trespass fails. I should add that, in any event, no damages were established for the alleged trespass.
75 I turn then to the second basis on which the defendants have purportedly terminated the lease, namely, the second notice of 21 October 2009, demanding payment of $1,001. That notice was based upon clause 5.1.8 of the lease. That clause is set out in the notice itself, which I have quoted above. The lease does not specify a time by which the tenant is to pay the landlord reasonable legal costs relating to the default. In the absence of a specific provision, the time for payment would be a reasonable time. The basis for the claim must be that the plaintiff was in default of the lease and that notice of breach of covenant of 3 August 2009 was given in respect of the default, such that the lessor was entitled to claim the reasonable legal costs.
76 The plaintiff disputed and disputes that the landlord was entitled to claim reasonable legal costs under clause 5.1.8 but, in the alternative, seeks relief against forfeiture. As I have said, it paid the sum demanded on 16 December 2009.
77 The defendants submitted that it was not open to the plaintiff to deny the breach, but seek relief against forfeiture if its denial were not accepted. Reference was made to Kumaragamage v Rallis [2001] NSWSC 466, in particular, at [10]. There, Austin J said:
" [10] In my opinion the cases establish that a lessee must elect between seeking relief on the basis that there has been no breach, and seeking relief against forfeiture. Having elected to conduct the interlocutory hearing on the former basis, the plaintiffs were not in a position to invite the Court to grant interlocutory relief on the latter basis. Indeed, they did not seek to do so until final submissions. In my view, they were not precluded, simply by seeking relief against forfeiture in the summons, from putting their interlocutory case solely on the basis of the contention that there had been no breach. A real problem will arise for them if they go to the final hearing seeking the two inconsistent forms of relief. They will have to decide, before that time, whether to admit that there have been breaches and offer to remedy them, as the price for obtaining relief against forfeiture, or to deny breaches and thereby jettison their relief against forfeiture case. "
78 The authorities to which his Honour referred, which supported the principles set out in para [10], were Langley v Foster (1909) 10 SR (NSW) 54; Tooth & Co Ltd v Coombes (1925) 42 WN (NSW) 93; and David Jones Limited v Leventhal (1927) 27 SR (NSW) 350.
79 In Solowave Pty Ltd v Nechi Holdings Pty Ltd [2005] NSWSC 837, I said (at [42]):
" [42] No point was taken that it was not open to the plaintiff both to deny that the defendant had validly terminated the lease and in the alternative to seek relief against its forfeiture. Notwithstanding the observations of Austin J in Kumaragamage v Rallis [2001] NSWSC 466 at [10]-[19], it is at least arguable that such claims can be made in the alternative. ( MI Design Pty Ltd v Dunecar Pty Ltd (2000) 10 BPR 18,387 at 18,399 [56]; Islam v South Sydney City Council (1998) 9 BPR at 16,865 at 16,870). Indeed, it might be thought that s 63 of the Supreme Court Act required such an alternative claim to be made. Tannous v Cipolla Bros Holdings Pty Ltd [2001] NSWSC 236 is an example of a plaintiff obtaining relief against forfeiture after unsuccessfully disputing the validity of the termination of the lease. "