Cripps v G & M Dawson Pty Ltd

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New South Wales


Court of Appeal


CITATION: CRIPPS and Another v G & M DAWSON Pty Ltd and Another; G & M DAWSON Pty Ltd and Another v CRIPPS and Another. [2006] NSWCA 81
HEARING DATE(S): 5 December 2005
 
JUDGMENT DATE: 
13 April 2006
JUDGMENT OF: Mason P at 1; Santow JA at 2; Brownie AJA at 62
DECISION: (1) Appeal dismissed with costs. ; (2) Leave granted to file cross-appeal, and cross-appeal allowed. ; (3) The appellants to pay the respondents’ costs before the Tribunal and Appeal Panel. ; (4) Cross-appellant to have costs of cross-appeal.
CATCHWORDS: BREACH OF CONTRACT – refusal to consent to assignment of lease – remoteness of damage – Hadley v Baxendale – whether remoteness a question of fact or law – s113(2) Administrative Decisions Tribunal Act 1997 - COSTS – “special circumstances” – s88(1) Administrative Decisions Tribunal Act 1997
LEGISLATION CITED: Administrative Decisions Tribunal Act 1997 (NSW) s88(1); s113(2)
Retail Leases Act 1994
CASES CITED: Alexander v Cambridge Credit Corp Ltd (1987) 9 NSWLR 310
Canson Enterprises Limited v Boughton & Co (1991) 85 DLR (4th) 129
Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64
Edwards v Noble (1971) 125 CLR 249
H Parsons (Livestock) Limited v Uttley of Ingham & Co Limited [1978] QB 791
Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145
Hope v Bathurst City Council (1980) 144 CLR 1
Jennings v Credit Corporation of Australia (2000) 48 NSWLR 709
O’Halloran v R T Thomas & Family Pty Ltd (1998) 45 NSWLR 262
Sellars v Adelaide Petroleum NL (1994) 179 CLR 332
Vetter v Lake Macquarie City Council (2001) 202 CLR 439
Williams v Bill Williams Pty Ltd [1971] 1 NSWLR 547
PARTIES:

CA 40857/04:
Michael Lance CRIPPS as executor of the Estate of Kerrie Frances Cripps and Madonna Kaye JONES (Appellants)
G & M DAWSON PTY LTD (ACN 053 842 185) (First Respondent)
H G & R SECURITIES PTY LIMITED (ACN 004 759 415) (Second Respondent)

CA 40537/05:
G & M DAWSON PTY LTD (Cross-Appellant)
Michael Lance CRIPPS as executor of the Estate of Kerrie Frances Cripps and Madonna Kaye JONES (Cross-Respondents)
FILE NUMBER(S): CA 40857/04; 40537/05
COUNSEL: J ANDERSON (Appellants/CrossRespondents)
S REUBEN (First Respondent/ Cross-Appellant)
--- (Second Respondent)
SOLICITORS: Gibson Howlin (Appellants/Cross-Respondents)
Pitcher Walton & Co (First Respondent/Cross-Appellants)
Alan Brown & Company (Second Respondent)
LOWER COURT JURISDICTION: Administrative Decisions Tribunal Appeal Panel
LOWER COURT FILE NUMBER(S): ADT49003; 59011
LOWER COURT JUDICIAL OFFICER: Acting Judge M Chesterman, Deputy President; K Rickards, Judicial Member; B Weule, Non Judicial Member



                          CA 40857/04 (ADT 049003)
                          CA 40537/05 (ADT 59011)

                          MASON P
                          SANTOW JA
                          BROWNIE AJA

                          13 APRIL 2006
Michael Lance CRIPPS as Executor of the Estate of Kerrie Frances Cripps & Anor v G & M DAWSON PTY LTD & 1 Ors
Judgment

1 MASON P: I agree with Santow JA.

2 SANTOW JA:

      INTRODUCTION
      The appellant lessors Michael Lance Cripps as executor, and Madonna Kaye Jones (referred to collectively as “Cripps”) bring this appeal against their…
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Details
Case
[2006] NSWCA 81
Decision Date

CaseChat Overview and Summary

The appeal concerned a dispute between a tenant, Cripps, and the landlord, G & M Dawson Pty Ltd, regarding the landlord's refusal to consent to the assignment of a retail lease. The matter came before the Court of Appeal of New South Wales.

The primary legal issues before the Court of Appeal were whether the damages claimed by the tenant for the landlord's refusal to consent were too remote, applying the principles established in *Hadley v Baxendale*, and whether the question of remoteness was one of fact or law. Additionally, the court considered whether there were "special circumstances" to justify an award of costs under section 88(1) of the *Administrative Decisions Tribunal Act 1997* (NSW).

The Court of Appeal dismissed the tenant's appeal, finding that the damages claimed were indeed too remote. The court reasoned that the loss of a specific opportunity to sell the business at a particular price was not a natural or probable consequence of the landlord's breach, nor was it within the reasonable contemplation of the parties at the time the lease was entered into. The court held that remoteness of damage is a question of law. The court also granted leave to file a cross-appeal, which was allowed, concerning the costs awarded by the Tribunal and Appeal Panel. The appellants were ordered to pay the respondents' costs before the Tribunal and Appeal Panel, and the cross-appellant was awarded costs of the cross-appeal.

Orders

Orders of the court

(1) Appeal dismissed with costs. ; (2) Leave granted to file cross-appeal, and cross-appeal allowed. ; (3) The appellants to pay the respondents’ costs before the Tribunal and Appeal Panel. ; (4) Cross-appellant to have costs of cross-appeal.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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