Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited [2023] HCA 6

HIGH COURT OF AUSTRALIA

KIEFEL CJ,

GAGELER, GORDON, GLEESON AND JAGOT JJ

LAUNDY HOTELS (QUARRY) PTY LIMITED APPELLANT

AND

DYCO HOTELS PTY LIMITED ATF THE PARRAS

FAMILY TRUST & ORS RESPONDENTS

Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited

[2023] HCA 6

Date of Hearing: 9 December 2022

Date of Judgment: 8 March 2023

S125/2022

ORDER

1. The appeal be allowed with costs.

2. The orders of the Court of Appeal of the Supreme Court of New South Wales made on 21 December 2021 be set aside and, in their place, order that the appeal be dismissed with costs.

3. Within 28 days of the date of these orders, the respondents repay to the appellant the whole of any sum paid by the appellant to the respondents under or in accordance with Order 2(b) of the orders of the Court of Appeal of the Supreme Court of New South Wales made on 21 December 2021 (the deposit and interest thereon).

4. If, within 14 days of the date of these orders, the parties agree upon the amount of further interest to be paid by the respondents to the appellant on the sum referred to in Order 3 of these orders, the parties are to file a minute of consent and the respondents are to pay the appellants that further sum of interest forthwith. Failing agreement, the issue and calculation of interest be remitted to the Supreme Court of New South Wales.

On appeal from the Supreme Court of New South Wales

Representation

J T Gleeson SC with L G Moretti for the appellant (instructed by JDK Legal)

N C Hutley SC with C D Freeman and E C Dunlop for the respondents (instructed by A.C. Comino & Associates)

Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.

CATCHWORDS

Laundy Hotels (Quarry) Pty Limited v Dyco Hotels Pty Limited

Contract – Construction – Where clause in contract for sale and purchase of property and assets of hotel business obliged vendor from contract date until completion to carry on business in "usual and ordinary course as regards its nature, scope and manner" – Where hotel business operated pursuant to licence and gaming machine entitlements – Where hotel business subject to variable licence conditions imposed under Liquor Act 2007 (NSW) and regulations – Where operation of business prior to completion restricted by public health order in response to COVID‑19 pandemic – Whether vendor obliged to carry on business in manner conducted as at time of contract to extent lawful – Whether vendor "ready, willing and able to complete and ... not in default" at time vendor served notice to complete.