Enviro Remote Sensing Australia Pty Limited v Bankstown Airport Limited

The case involved Enviro Remote Sensing Australia Pty Limited (the lessee) and Bankstown Airport Limited (the lessor), who had a lease agreement. The dispute arose from the lessor's termination of the lease, claiming the lessee breached the covenant by constructing buildings without approval from the building authority. The lessor gave a notice under s129 of the Conveyancing Act 1919, signed by their solicitor, to remedy the breach. The primary issue was whether this notice was valid as it was not signed by the lessor and there was no evidence of authority for the solicitor to sign on behalf of the lessor. Another issue was whether the lessor's re-entry for non-compliance with the notice constituted a repudiation of the lease accepted by the lessee.

The court held that the notice to remedy the breach was invalid as it was signed by the lessor's solicitor without evidence of authority. Consequently, the lessor's re-entry for non-compliance with the notice was a wrongful repudiation of the lease, which the lessee accepted. The court also found that the lessor was not entitled to terminate the lease based on the breach of covenant, as there was no new approval of plans required by the building authority. The transitional provisions in the Airports (Building Control) Regulations 1996 (Cth) meant that prior approval remained in force if building works commenced within the prescribed period but were not completed during the period. The court further determined that the onus of proof in reliance damages rested on the lessee to show that the lease was of value and that they suffered a loss of income from the proposed activities. However, in this case, the lessee failed to provide such evidence.

The court ordered that the lessor was liable for damages to the lessee for wrongful termination of the lease. The specific amount of damages was to be determined at a later date.