Mackinlay v Derry Dew Pty Ltd

Case [2014] WASCA 24

MACKINLAY -v- DERRY DEW PTY LTD [2014] WASCA 24



SUPREME COURT OF WESTERN AUSTRALIACitation No:[2014] WASCA 24
THE COURT OF APPEAL (WA)
Case No:CACV:12/20133 OCTOBER 2013
Coram:PULLIN JA
BUSS JA
NEWNES JA		3/02/14
45Judgment Part:1 of 1
Result: Appeal dismissed
A
PDF Version
Parties:ALISTAIR ROBERT MACKINLAY
DERRY DEW PTY LTD

Catchwords:
Contract
Illegal and void contracts
Effect of illegality or invalidity
Severance
Whether lease with options to renew of part of a lot for more than 21 years
Town Planning and Development Act 1928 (WA) (repealed) s 20(1)(a)
Whether severance of options to renew possible
Solicitors
Breach of retainer
Damages
Causation

Legislation:
Town Planning and Development Act 1928 (WA) (repealed), s 20(1)(a), s 20(1)(d), s 20(1)(da), s 20B

Case References:
A v Hayden [1984] HCA 67; (1984) 156 CLR 532
Bennett v Minister for Community Welfare [1992] HCA 27; (1992) 176 CLR 408
Brew v Whitlock (No 2) [1967] VR 803
Brooks v Burns Philp Trustee Co Ltd [1969] HCA 4; (1969) 121 CLR 432
Carney v Herbert [1985] AC 301
Chappel v Hart [1998] HCA 55; (1998) 195 CLR 232
Debonair Nominees Pty Ltd v J & K Berry Nominees Pty Ltd [2000] SASC 244; (2000) 77 SASR 261
DJE Constructions Pty Ltd v Maddocks [1982] 1 NSWLR 5
Dressy Frocks Pty Ltd v Bock (1951) 51 SR (NSW) 390
Electric Acceptance Pty Ltd v Doug Thorley Caravans (Aust) Pty Ltd [1981] VR 799
Equuscorp Pty Ltd v Haxton [2012] HCA 7; (2012) 246 CLR 498
Farleigh Investments Pty Ltd v Reefking Pty Ltd [2002] WASC 115
Firmin v Gray & Co Pty Ltd [1985] 1 Qd R 160
Fitzgerald v Penn [1954] HCA 74; (1954) 91 CLR 268
Gerraty v McGavin [1914] HCA 23; (1914) 18 CLR 152
Glentham Pty Ltd v City of Perth [1986] WAR 205
Hislop v Spurr [1983] WAR 180
Holman v Johnson (1775) 1 Cowp 341; 98 ER 1120
Humphries v The Proprietors 'Surfers Palms North' Group Titles Plan 1955 [1994] HCA 21; (1994) 179 CLR 597
Langley v Foster [1906] HCA 28; (1906) 4 CLR 167
Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1989) 166 CLR 623
Life Insurance Co of Australia Ltd v Phillips [1925] HCA 18; (1925) 36 CLR 60
Lombardo v Development Underwriting (WA) Pty Ltd [1971] WAR 188
March v Stramare (E&MH) Pty Ltd [1991] HCA 12; (1991) 171 CLR 506
Marks v Jolly (1938) 38 SR (NSW) 351
Mason, Herring and Brooks v Harris [1921] 1 KB 653
McCourt v Cranston [2012] WASCA 60
McFarlane v Daniell (1938) 38 SR (NSW) 337
Medlin v State Government Insurance Commission [1995] HCA 5; (1995) 182 CLR 1
Miller v Miller [2011] HCA 9; (2011) 242 CLR 446
Mobbs v Kain [2009] NSWCA 301; (2009) 54 MVR 179
Montreal Trust Co…

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AGLC
Mackinlay v Derry Dew Pty Ltd [2014] WASCA 24
Case
[2014] WASCA 24
Decision Date

CaseChat Overview and Summary

The case of Mackinlay v Derry Dew Pty Ltd involved a dispute over the validity of a lease agreement, which included options to renew the lease of a portion of a property for a period exceeding 21 years. The original lease was deemed to contravene certain provisions of the Town Planning and Development Act 1928 (WA), which required the primary lease to be limited to 21 years. The dispute reached the court, which was required to determine the legality of the lease, the potential severance of the invalid parts, and whether the solicitors involved were liable for damages due to a breach of their retainer.

The central legal issues before the court were whether the lease agreement, including the options to renew, could be considered illegal and, if so, whether the invalid parts could be severed from the valid portions. Additionally, the court had to assess whether the solicitors who drafted the lease were liable for damages due to a breach of their retainer, specifically in failing to ensure the lease complied with the statutory requirements.

The court found that the lease agreement, including the options to renew, was indeed illegal due to its contravention of the statutory limit on lease terms. However, the court determined that severance of the invalid parts from the valid portions of the lease was not permissible in this case. Regarding the solicitors' liability, the court concluded that there was no causal link between the breach of retainer by the solicitors and the financial loss suffered by the appellant. Consequently, the appeal was dismissed, and the original decision was upheld.

The court's final orders were to dismiss the appeal, affirming the lower court's decision that the lease was illegal and could not be severed, and that the solicitors were not liable for damages due to their breach of retainer.

Orders

Orders of the court

Appeal dismissed

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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