mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349
Outcome: referred to
The applicant referred to the numerous cases dealing with the implied contractual duty of good faith and fair dealing. It submitted that where a clause gives a party more power than is legitimately needed to protect its interests, then, a duty of good faith should be implied into the exercise of that power. It relied upon the decision of Sheller JA in Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 in support of this proposition. Like this proceeding, that case also involved a commercial lease. His Honour stated, at 368: "If a contract confers power on a contracting party in terms wider than necessary for the protection of the legitimate interests of that party, the courts may interpret the power as not extending to the action proposed by the party in whom the power is vested or, alternatively, conclude that the powers are being exercised in a capricious or arbitrary manner or for an extraneous purpose, which is another way of saying the same thing. Thus, a vendor may not be allowed to exercise a contractual power where it would be unconscionable in the circumstances to do so...". 66 The applicant's contentions in relation to good faith are only of relevance if the notice is found to be valid. The applicant noted that if the notice was found to be valid, the effect of clause 3.2.2 would be to give the landlord a wide power. Therefore, so the applicant claimed, clause 3.2.2 is the type of clause in relation to which a duty of good faith should be implied. 67 The applicant submitted that the implied duty of good faith and fair dealing was breached by the first respondent. It contended that the first respondent breached this duty through a combination of actions and omissions. First of these were the deficiencies in the notice, both in terms of its alleged vagueness and its substantive shortcomings. This was combined with sending the letter just before Christmas where, so the applicant says, a meeting had been arranged between the parties after the expiration of the 30 day period, and when the applicant says, to the knowledge of the first respondent, the 30 day period would expire when Mr Bertrand was on leave. The applicant also adds to these circumstances the fact that the notice was sent to Mr Bertrand, who Mr Allen know did not speak English as his first language, instead of Mr Jarman, to whom notices and other correspondence relating to the Mulgrave premises had always previously been sent.
Case: Australasian Performing Right Association Ltd v Metro on George Pty Ltd (2004) 210 ALR 244
Outcome: cited
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).
Case: Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2001) 109 FCR 33
Outcome: referred to
I note that bankruptcy notices arguably constitute an exception to this approach. In Australian Steel Company (Operations) Pty Ltd v Lewis [2000] FCA 1915 ; (2001) 109 FCR 33, the majority in a specially constituted court of five (Black CJ, Heerey and Sundberg JJ, Lee and Gyles JJ dissenting) held that the misstatement in a bankruptcy notice of the statutory provision under which interest was being claimed served to invalidate the notice. This was so even though the correct sum of interest was claimed. The majority found that it was irrelevant whether a debtor might be misled or not. Their Honours came to this view on the basis that the Bankruptcy Act 1966 (Cth) made the requirement to specify the relevant legislative provision essential. In my view, such an approach is not relevant to these proceedings. In any event, it would only make it more difficult for the first respondent to establish the validity of the notice. 134 The applicant and first respondent both agree that the notice in this proceeding must be considered as a composite of the letter from Mr Allen addressed to the Manager of Nobi Holdings, and the Colliers letter. The applicant acknowledged, correctly in my view, that the notice did not need to refer to clause 3.2.2, and did not have to inform the recipient of the 30 day period within which to object to the increased rent. Nor did it have to adopt any particular form of words to be valid. 135 Even taking this into account, I am unable to find that the notice satisfies the relevant test of validity, as outlined above at [129]. In my view, the notice is not expressed unequivocally and would leave a reasonable person in receipt thereof in doubt as to its effect.
Case: Beneficial Finance Corporation v Commissioner of Australian Federal Police (1991) 31 FCR 523
Outcome: referred to
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.
Case: Burnham v City of Mordialloc [1956] VLR 239
Outcome: cited
The second respondent gave numerous examples of cases where it said leave to amend in similar circumstances had been refused. See Lewis v Sydney Flour Pty Ltd (1956) 56 SR (NSW) 189, Burnham v City of Mordialloc [1956] VLR 239, Ralph v Strutton [1969] Qd R 348 and Mercantile Mutual Insurance (Australia) Ltd v Farrington (1996) 44 NSWLR 634.
Case: Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410
Outcome: cited
The first respondent contended that for a term to be implied, it must be "reasonable and necessary": Byrne v Australian Airlines Limited [1995] HCA 24 ; (1995) 185 CLR 410 at 450. The first respondent submitted that an implied term of good faith was neither reasonable nor necessary in this case. It submitted that the mechanism established by the lease, allowing the lessor to nominate the rental assessment and the lessee to object, contemplates that the rent specified in the lessor's rental assessment may not be reasonable, or otherwise acceptable to the lessee. The first respondent submitted that the presence of the objection mechanism demonstrates that no such implied term is necessary. 94 The first respondent contended that the implication of such a term would alter the effect of the rent review mechanism agreed to, as it would enable a lessee to ignore a notice and "embark upon a curial challenge". 95 Even if such a term were to be implied, the first respondent submitted that the content of that term would require nothing more of the first respondent than that the rental assessment contained in the notice be an honestly held opinion. The first respondent submitted that the evidence supports the contention that the assessment contained in the notice represented the honest opinion of Mr Allen.
Case: Carradine Properties Ltd v Aslam [1976] 1 WLR 442
Outcome: referred to
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.
Case: Catley v Watson (1983) V ConvR |P54-003
Outcome: applied
The first of these cases was Catley v Watson (1983) V ConvR |P54-003, which involved a notice of rescission served by a vendor upon a purchaser. In that case, "copyright condition 5" of the contract provided for the service of a notice of rescission. Brooking J stated, at 62,115: "In my opinion, a notice under copyright condition 5 is not valid unless it is, in relation to its essential features as required by that condition, clear and unambiguous. By this I mean, not that its import must be clear beyond the slightest peradventure, but that its terms must be such that a reasonable person, having given it fair and proper consideration, would be left in no doubt as to its meaning. A notice is not unequivocal, in the sense in which such notices are required to be unequivocal in relation to their essential contents, if a reasonable person, having considered the notice as a whole, fairly and properly, might entertain a doubt as to its meaning in relation to some essential matter, even though he would form in his mind a preference for one view, rather than the other of what the notice was intended to convey. It must be possible to say that, after the appropriate consideration, any doubts that may have arisen would have been quieted and the purchaser would not be left in any uncertainty as to the meaning of the notice...". (emphasis added) 39 Plainly, Catley v Watson can be relied upon only by analogy as it concerns the requirements for a valid rescission notice and not the requirements for a valid rental review notice. 48 Lastly, the applicant cited Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR |P54-575 (" Central Pacific "). That case, like Catley v Watson , involved a rescission notice. Callaway JA, with whom Buchanan JA agreed, stated at 66,909 that the relevant approach is to ask: "whether a reasonable person who had considered the notice as a whole and given it fair and proper consideration would be left in any doubt as to its meaning." 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)).
Case: Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR |P54-575
Outcome: discussed
Lastly, the applicant cited Central Pacific (Campus) Pty Ltd v Staged Developments Australia Pty Ltd (1998) V ConvR |P54-575 (" Central Pacific "). That case, like Catley v Watson , involved a rescission notice. Callaway JA, with whom Buchanan JA agreed, stated at 66,909 that the relevant approach is to ask: "whether a reasonable person who had considered the notice as a whole and given it fair and proper consideration would be left in any doubt as to its meaning." 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.
Case: Davstone (Holdings) Ltd v Al-Rifai (1976) 32 P&amp;CR 18
Outcome: cited
The first respondent contended that challenges similar to that made by the applicant in the present proceeding had been unsuccessful in other cases, such as Fox &amp; Widley v Guran [1998] 3 EG 142 (a case where the submission that the landlord was required to estimate a "bona fide and genuine" assessment in a rent review notice was rejected) and Davstone (Holdings) Ltd v Al-Rifai (1976) 32 P&amp;CR 18 at 26 (a case which concerned whether there was an obligation upon a landlord to specify an objectively "reasonable" figure in a rent review notice).
Case: EFM Pty Ltd v New Zealand Steel (Aust) Pty Ltd [2000] VSC 290
Outcome: cited
The second respondent submitted that pleadings may be amended after the close of evidence provided that any new facts raised by the amendment were the subject of evidence and the other party had an opportunity to litigate them. It contended that this case was not one where an amendment should be permitted so that the pleadings reflect the conduct of the trial and the issues litigated between the parties. Rather, the second respondent "cast its defence in a particular way on the basis of one case and is now faced with a different case that it may have fought differently". See EFM Pty Ltd v New Zealand Steel (Aust) Pty Ltd [2000] VSC 290 at [24] per Warren J. As such, the second respondent claimed that it would be prejudiced should an amendment be allowed. It said that had this matter been pleaded, it could have cross-examined Mr Jarman or Mr Bertrand as to the value of the fixtures and fittings that are additional to those set out in schedule 2. 117 The applicant submitted in closing that the onus lies upon the respondents to prove that the alleged misconstruction of clause 3.2.2 was not material. Although the respondents both objected to this proposition, if it were held to be correct, the second respondent submitted that it has not had the opportunity to lead evidence as to the value of the "additional" fixtures and fittings. 118 The first respondent also submitted that it would have called additional evidence, and further cross-examined witnesses had this matter been pleaded. In particular, it said that it would have led additional evidence from Mr Allen in relation to his state of mind as to the inclusion of fixtures and fittings at the time he served the notice, would have cross-examined the applicant's witnesses as to the value of the fixtures and fittings falling outside of schedule 2, and would have considered calling further valuation evidence.
Case: Etlis v New Age Constructions (NSW) Pty Ltd [2005] NSWCA 165
Outcome: cited
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).
Case: Fox &amp; Widley v Guran [1998] 3 EG 142
Outcome: discussed
The first respondent contended that challenges similar to that made by the applicant in the present proceeding had been unsuccessful in other cases, such as Fox &amp; Widley v Guran [1998] 3 EG 142 (a case where the submission that the landlord was required to estimate a "bona fide and genuine" assessment in a rent review notice was rejected) and Davstone (Holdings) Ltd v Al-Rifai (1976) 32 P&amp;CR 18 at 26 (a case which concerned whether there was an obligation upon a landlord to specify an objectively "reasonable" figure in a rent review notice). 146 Fox &amp; Widley v Guran , another case cited by the first respondent, involved a typographical error. The notice stated the rent review date as being 23 May 1989, rather than 25 May 1989. Clarke J found that such an error could not mislead anyone, nor was there any evidence that the tenant had in fact been misled.
Case: GHD Pty Ltd v Wayne [2001] QSC 73
Outcome: discussed
The closest the first respondent came to finding an analogous notice, the validity of which was upheld, was GHD Pty Ltd v Wayne [2001] QSC 73 (" GHD "). In that case the lease was similar in substance to clause 3.2.2 and required the relevant amount to be specified by notice in writing. The relevant notice stated: "As you will be aware your lease provides for a review of rental from 29 September 1999. The Lessor proposes that there will be no change in the rental from the present level for the year commencing 29 September 1999." 148 The notice then went on to deal with a proposal to renegotiate the terms of the lease to take account of the introduction of the goods and services tax legislation. The lessee submitted that the use of the term "proposes" rather than "specifies", and the discussion of the GST proposal, rendered the notice equivocal, and therefore invalid. The lessee also contended that the failure to specify an actual amount or refer to fair market rental suggested the notice represented a step in a preliminary negotiation before the rent review machinery was triggered. 149 Mackenzie J rejected these submissions. His Honour noted that the matter was one of impression and that, in his view, the notice adequately conveyed the requisite meaning that the lease required to be conveyed. 150 GHD is distinguishable from the present case. In GHD , Mackenzie J took the view that the GST discussion could be severed, or treated separately, from the rent review portion of the letter, and that the rent review portion of the letter was sufficiently clear. If, in the notice at issue before me, the first respondent had simply referred to the lease and stated, as the lessor did in GHD , "the Lessor proposes that the rental commencing 1 March 2003 be $435,920 pa", and there was no ambiguous reference to the Colliers letter, the notice may well have been valid. However, the Colliers letter cannot be severed from this notice, and the reference to it in Mr Allen's letter, and the nature of the Colliers letter itself, import doubt into the meaning of the overall notice. 151 Accordingly, I find that the notice was not sufficiently clear to be a valid notice pursuant to clause 3.2.2 of the lease.
Case: Gibbins Thomson Pty Ltd v Council of the City of Liverpool [2004] NSWSC 1172
Outcome: cited
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).
Case: Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147
Outcome: discussed
The authorities are clear that the applicant does not itself have to rely upon the misrepresentation in order to make a claim under s 82. It may be sufficient for a third party to rely upon the misrepresentation, and for that third party reliance to cause the applicant's loss. See Janssen-Cilag Pty Limited v Pfizer Pty Limited (1992) 37 FCR 526 (" Janssen-Cilag "), Haynes v Top Slice Deli Pty Limited (1995) ATPR (Digest) |P46-147 (" Haynes "), and McCarthy v McIntyre [1999] FCA 784. However, the authorities require a "sufficient and direct link", or a "requisite element of proximity" in order for s 82 to be satisfied. 166 In Haynes , the applicants purchased a franchise from Top Slice Deli. Top Slice Deli's accountants had sent misleading financial information to the bank which approved the applicants' loan to purchase the franchise. As against the accountants, Einfeld J found at 53,152: "Even if the bank's approval of the loan was an antecedent condition of entry into the agreements ...there was not an effective or true nexus between the approval and the entry. To adopt the language of Justice Lockhart, any resulting loss from the failure of the business is both a remote and indirect, not the "natural and direct", result of the relevant conduct. It therefore falls outside section 82..."
Case: Heaps v Addison Wesley Longman [1999] NSWSC 1093
Outcome: cited
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).