Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 176

Penrith Whitewater Stadium Ltd & Anor v Lesvos Pty Ltd & Anor [2007] NSWCA 176

The Café contract was, in substance, an agreement for lease because it gave the respondents exclusive possession of the café premises for a fixed term with an option to renew and payment of rent. It was therefore a contract for the disposition of an interest in land within s 54A(1) of the Conveyancing Act 1919 (NSW), even if the appellants themselves had no interest in the land. Because the agreement was not sufficiently evidenced in writing, the respondents could not sue upon it for common law damages; part performance was relevant only to equitable relief and did not support the damages claim. The respondents' unconscionability and Trade Practices Act arguments also failed, so the trial...

Jurisdiction
Australia
Judgment Date
19 July 2007
Procedural Posture
Civil Appeal / Appeal From Supreme Court of New South Wales, Common Law Division Judgment Awarding Common Law Damages for Breach of Contract
Outcome
Appeal upheld; orders made by Grove J set aside; judgment for the appellants; respondents' claims dismissed; further timetable set for Calderbank offer costs contentions.
Legal Topics
['construction of Agreement for Lease' 'conveyancing Act 1919 (nsw) S 54 A(1)' 'statute of Frauds' 'part Performance' 'common Law Damages' 'misleading or Deceptive Conduct' 'unconscionability' 'calderbank Offer' 'grounds of Appeal']
['contract Law' 'property Law' 'equity' 'trade Practices' 'civil Procedure' 'costs'] ['construction of Agreement for Lease' 'conveyancing Act 1919 (nsw) S 54 A(1)' 'statute of Frauds' 'part Performance' 'common Law Damages' 'misleading or Deceptive Conduct' 'unconscionability' 'calderbank Offer' 'grounds of Appeal']

Case Brief

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Procedural Posture

Civil Appeal / Appeal From Supreme Court of New South Wales, Common Law Division Judgment Awarding Common Law Damages for Breach of Contract

Legal Issues

  1. 1 ['Whether the Café contract was an agreement for lease or a licence.' 'Whether s 54A(1) of the Conveyancing Act 1919 (NSW) applied to the Café contract even though neither appellant had an interest in the land or a contractual right to acquire one.' 'Whether part performance of a contract unenforceable under s 54A(1) entitled the respondents to common law damages.' "Whether O'Rourke v Hoeven [1974] 1 NSWLR 622 and Powercell Pty Ltd v Cuzeno Pty Ltd (2004) 11 BPR 21,429 should be re-argued or treated as wrongly decided." 'Whether it was unconscionable for the appellants to rely on s 54A(1) by reason of repudiation of the Café contract.' 'Whether the appellants engaged in misleading or deceptive conduct contrary to s 52 of the Trade Practices Act 1974 (Cth).' 'What costs order should be made given the number and scope of the grounds of appeal.']

Ratio Decidendi

The Café contract was, in substance, an agreement for lease because it gave the respondents exclusive possession of the café premises for a fixed term with an option to renew and payment of rent. It was therefore a contract for the disposition of an interest in land within s 54A(1) of the Conveyancing Act 1919 (NSW), even if the appellants themselves had no interest in the land. Because the agreement was not sufficiently evidenced in writing, the respondents could not sue upon it for common law damages; part performance was relevant only to equitable relief and did not support the damages claim. The respondents' unconscionability and Trade Practices Act arguments also failed, so the trial...

Court Disposition

Appeal upheld; orders made by Grove J set aside; judgment for the appellants; respondents' claims dismissed; further timetable set for Calderbank offer costs contentions.

Orders

  • ['The appeal is upheld.' 'The orders made by Grove J are set aside.' "Judgment for the appellants and the respondents' claims should be dismissed." 'The appellants should have seven days after the publication of these reasons to raise, by affidavit and written argument, their contentions concerning the making of a...