News v Cotes and Laptev [2019] NSWCATAP 110

News v Cotes and Laptev [2019] NSWCATAP 110

The Tribunal at first instance erred in law by failing to recognise and apply the implied contractual term of cooperation necessary for achieving the contract's objective (derived from Mackay v Dick and applied by law, not fact); however, upon reconsideration of the evidence, there was no actual breach of this implied term by the lessors and no demonstrable loss to ground the appellant's claims for rent abatement or damages. The orders at first instance were confirmed for different reasons, with variation reflecting the passage of time, and the application was dismissed.

Parties
Appellant: Rosemary News; Respondent: Jane Cotes; Respondent: Constantine Laptev
Jurisdiction
Australia
Judgment Date
30 April 2019
Procedural Posture
Internal Appeal / Appeal Panel Decision After Re Consideration
Outcome
Appeal allowed on error of law; relief refused after reconsideration; application ultimately dismissed
Legal Topics
Retail Tenancy, Implied Terms, Contractual Cooperation, Relief Against Forfeiture, Rent Abatement, Unconscionable Conduct
Commercial Law Tenancy Retail Tenancy Implied Terms Contractual Cooperation Relief Against Forfeiture Rent Abatement Unconscionable Conduct

Case Brief

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Parties

Rosemary News

Appellant

Jane Cotes

Respondent

Constantine Laptev

Respondent

Procedural Posture

Internal Appeal / Appeal Panel Decision After Re Consideration

Legal Issues

  1. 1 Whether the Tribunal erred in the identification and application of implied contractual terms relating to cooperation necessary to achieve the contract's object
  2. 2 Whether the lessors breached a duty implied by law to cooperate (the so-called Mackay v Dick duty)
  3. 3 Whether the appellant was entitled to rent abatement or damages for loss of trading due to delays attributed to the lessor

Ratio Decidendi

The Tribunal at first instance erred in law by failing to recognise and apply the implied contractual term of cooperation necessary for achieving the contract's objective (derived from Mackay v Dick and applied by law, not fact); however, upon reconsideration of the evidence, there was no actual breach of this implied term by the lessors and no demonstrable loss to ground the appellant's claims for rent abatement or damages. The orders at first instance were confirmed for different reasons, with variation reflecting the passage of time, and the application was dismissed.

Court Disposition

Appeal allowed on error of law; relief refused after reconsideration; application ultimately dismissed

Orders

  • Time for lodging the notice of appeal extended to and including 2 November 2018, to the extent extension was required.
  • Leave to appeal, to the extent required, refused.