Case: Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749
Outcome: applied
The first respondent submitted that the notice must be construed objectively and in context: Carradine Properties Ltd v Aslam [1976] 1 WLR 442 and Mannai Investment Co Ltd v Eagle Star Life Assurance Co Ltd [1997] UKHL 19 ; [1997] AC 749 at 767 (" Mannai "). The first respondent also submitted that a reasonable recipient is to be credited with knowledge of the terms of the lease: Mannai . See also MLW Technology Pty Ltd v May [2004] VSCA 29. 130 Since Mannai , that test has been repeatedly applied in English courts. See, for example, the recent decision of the Court of Appeal in Lancecrest Limited v Asiwaju [2005] EWCA Civ 117 (" Lancecrest "). The test has been applied in this Court in Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244 per Bennett J (in the context of a notice of termination). It has also been applied by the Victorian Court of Appeal in MLW Technology Pty Ltd v May [2005] VSCA 29 (in the context of a notice seeking enforcement of a term of a contract), by the New South Wales Court of Appeal in Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165 (in the context of a notice triggering an extension of time in relation to building work), and in the Supreme Court of New South Wales in McIntyre v Marshall [2004] NSWSC 412 (a vendor's notice to complete), Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172 (a notice of failure to meet obligations under the contract), and Heaps v Addison Wesley Longman [1999] NSWSC 1093 (a notice from a tenant requesting the appointment of a second valuer in relation to a rent review). 132 The test laid down in Mannai is consistent with approaches taken to the validity of notices, or analogous documents, outside of contract law. For instance, in Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523, Burchett J warned, at 533, against adopting an "overly technical view" in considering the validity of search warrants. He stated, at 544, that in relation to the search warrants at issue in that case, "[t]he language may be infelicitous", however the nature of the offences specified in the search warrants was clear, and the search warrants were therefore valid. His Honour cited, at 543, New Zealand authority which adopted the test of what a "reasonable reader" would "gather" from the search warrants to determine whether they sufficiently indicated the offence involved: see Rural Timber Ltd v Hughes [1989] 3 NZLR 178. 142 In any event, the correct test to apply is not whether there is enough in a notice to put a reasonable tenant on inquiry to find out if a notice was indeed intended by the lessor to be a notice under 3.2.2. Nor is the subjective reaction of the recipient of the notice relevant: see Mannai at 767 per Lord Steyn and Lancecrest at [38]-[43] per Neuberger LJ and [88] per Brooke LJ. Either the notice is unequivocally a notice made pursuant to clause 3.2.2, or it is not. If the meaning of the notice is in doubt, objectively viewed, the notice is invalid. 152 I should note that in Central Pacific , it was suggested that the test expounded in Mannai was distinguishable from that in Catley v Watson : see Ormiston JA at 66,903 and Callaway JA at 66,909. 153 For my part, I cannot discern any difference in the effect of the tests in Mannai and Catley v Watson . Nor could the Victorian Court of Appeal in MLW Technology Pty Ltd v May (see [82] per Gillard AJA (with whom Winneke P and Buchanan JA agreed)).