Court of Appeal
Supreme Court
New South Wales
- Summary available
Medium Neutral Citation: Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19 Hearing dates: 18 November 2021 Date of orders: 22 February 2022 Decision date: 22 February 2022 Before: Bathurst CJ at [1];
Bell P at [2];
Meagher JA at [231]Decision: Appeal dismissed with costs
Catchwords: CONTRACTS – termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – performance by landlord not insisted upon during this period – where certain rights under the agreement for lease expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned
CONTRACTS – termination – frustration – agreement for lease – where landlord agreed to carry out works to construct shopping centre and to grant lease of part of shopping centre to tenant – development consent obtained – where parties contemplated incorporation of department store into shopping centre – where development application for incorporation of department store refused – whether agreement for lease was varied to incorporate plans for department store
CONTRACTS – termination – frustration – agreement for lease – landlord to perform works for construction of shopping centre development – where those works were authorised by and subject to a development consent obtained in 2008 – where parties operated under common assumption that landlord would be able to carry out works lawfully in accordance with development consent – neither party responsible under agreement for maintaining that state of affairs – development consent lapsed in 2014 prior to commencement of works – works subsequently unable to be performed lawfully – whether agreement frustrated – whether lapse of development consent resulted in a “radical difference” in circumstances of performance – whether landlord responsible for lapse of development consent
LEASES AND TENANCIES – default and termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – where performance not insisted upon – where certain rights under the agreement expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned – whether by conduct and correspondence parties mutually intended that contract was not to be performed
Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 96
Sydney Local Environmental Plan 2012 cl 7.23
Cases Cited: Albert D Gaon & Co v Société Interprofessionelle des Oleagineux Fluides Alimentaires [1960] 2 QB 318
Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396
Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61
Chinatex (Australia) Pty Limited v Bindaree Beef…
Keep reading for free
Create a free CaseChat account to read Woolworths Group Ltd v Gazcorp Pty Ltd and more:
- Read every judgment in full
- Ask AI and get answers linked to paragraphs
- See how each paragraph was cited in later cases
- Download judgments as PDF or Word
One click creates your free account or signs you in.
By continuing you agree to the Terms and Privacy Policy.
- Case
- [2022] NSWCA 19
- Decision Date
CaseChat Overview and Summary
The legal issues before the Court of Appeal included whether the agreement for lease was abandoned by the parties' conduct, particularly given the landlord's failure to perform works for an extended period, the expiry of certain rights under the agreement, and the parties' lack of specific reference to the agreement after April 2012. Additionally, the court had to consider whether the agreement was frustrated by the lapse of the development consent in February 2014, which rendered the contemplated works unable to be performed lawfully, and whether the landlord was responsible for this lapse. The court also considered whether the agreement had been varied to incorporate plans for a department store, and if the refusal of a development application for such a store constituted frustration.
The Court of Appeal reasoned that the primary judge had correctly found that the agreement had not been abandoned. The court held that the parties' conduct, including the landlord's prolonged inaction and the tenant's lack of insistence on performance, did not demonstrate a mutual intention to abandon the contract. Regarding frustration, the court found that the lapse of the development consent did not result in a "radical difference" in the circumstances of performance such that the contract was frustrated. The court determined that the landlord was not responsible for the lapse of the development consent, as the agreement did not impose an obligation on the landlord to maintain the consent. The court also found that the agreement had not been varied to incorporate the department store plans.
The appeal was dismissed with costs.
Orders
Orders of the court
Appeal dismissed with costs
Background
Background to the litigation
Full text does not contain this section.
Evidence
Evidence Before The Court
Full text does not contain this section.
Decision
Reasons for decision
Full text does not contain this section.
Ratio Decidendi
Legal Principle Established
Full text does not contain this section.