Woy Woy Promenade Pty Ltd v Nu Squeeze Cafe Pty Ltd

Woy Woy Promenade Pty Ltd (the landlord) appealed to the Court of Appeal of New South Wales against a decision of the primary judge concerning an agreement for a lease with Nu Squeeze Cafe Pty Ltd (the tenant). The dispute arose from the landlord's purported termination of the agreement for a shop in a new centre, which was conditional upon the completion of "Building Works" by a specified date. The tenant argued that the Building Works were not completed by that date, rendering the termination invalid.

The central legal issues before the Court of Appeal were whether the Building Works had been completed by the stipulated date and, if not, whether the landlord was entitled to terminate the agreement. Specifically, the court had to determine what constituted the "Building Works" as defined by the agreement and whether the works undertaken met that definition. The court also considered whether the landlord could raise arguments concerning election or waiver on appeal, which had not been pursued at the trial.

The Court of Appeal, in dismissing the appeal, reasoned that the Building Works were not completed because they did not substantially comply with the development consent. This failure meant that the condition precedent for the landlord's right to terminate the agreement had not been met. The court declined to permit the landlord to raise arguments of election or waiver on appeal, noting that such issues were not litigated at trial and that allowing them to be raised anew could have led to the introduction of other evidence. The court found no error in the primary judge's findings.

The appeal was dismissed with costs.