Willis Australia Ltd v AMP Capital Investors Ltd [2023] NSWCA 158

Willis Australia Ltd v AMP Capital Investors Ltd [2023] NSWCA 158

The appellant (Willis) was not bound by the option to take the lease for the balance of Level 15 because it had not satisfied all five stipulated conditions in clause 20.4 of the lease; the lessor (AMP/Mirvac) could not waive the timing for the provision of the bank guarantee, since there was no right to require performance, and any waiver was in any event required to be in writing and signed by both parties under clause 17.4 of the lease. The appeal is determined by applying contract construction principles to the lease text, without deciding if the clause is an irrevocable offer or a conditional contract.

Parties
Appellant: Willis Australia Limited; First Respondent: AMP Capital Investors Limited; Second Respondent: Mirvac Funds Management Australia Limited
Jurisdiction
Australia
Judgment Date
11 July 2023
Procedural Posture
Appeal / Judgment on Appeal
Outcome
Appeal allowed
Legal Topics
Option to Renew Lease, Conditional Contracts, Waiver of Contractual Rights, Commercial Contract Interpretation
Contracts Property Law Option to Renew Lease Conditional Contracts Waiver of Contractual Rights Commercial Contract Interpretation

Case Brief

Summary, issues, holding and outcome

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Parties

Willis Australia Limited

Appellant

AMP Capital Investors Limited

First Respondent

Mirvac Funds Management Australia Limited

Second Respondent

Procedural Posture

Appeal / Judgment on Appeal

Legal Issues

  1. 1 Whether the appellant was bound by an option to take a lease for expanded premises under the lease.
  2. 2 Whether the primary judge erred in characterising the option clause as a conditional contract rather than an irrevocable offer.
  3. 3 Whether the lessor could waive non-performance of certain conditions in the lease option clause.

Ratio Decidendi

The appellant (Willis) was not bound by the option to take the lease for the balance of Level 15 because it had not satisfied all five stipulated conditions in clause 20.4 of the lease; the lessor (AMP/Mirvac) could not waive the timing for the provision of the bank guarantee, since there was no right to require performance, and any waiver was in any event required to be in writing and signed by both parties under clause 17.4 of the lease. The appeal is determined by applying contract construction principles to the lease text, without deciding if the clause is an irrevocable offer or a conditional contract.

Court Disposition

Appeal allowed

Orders

  • Pursuant to UCPR r 51.16(1)(c), the date for filing of the notice of appeal is extended to 12 December 2022.
  • Appeal allowed.