Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Woolworths Group Ltd v Gazcorp Pty Ltd [2022] NSWCA 19 Hearing dates: 18 November 2021 Date of orders: 22 February 2022 Decision date: 22 February 2022 Before: Bathurst CJ at [1]; Bell P at [2]; Meagher JA at [231] Decision: Appeal dismissed with costs Catchwords: CONTRACTS – termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – performance by landlord not insisted upon during this period – where certain rights under the agreement for lease expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned CONTRACTS – termination – frustration – agreement for lease – where landlord agreed to carry out works to construct shopping centre and to grant lease of part of shopping centre to tenant – development consent obtained – where parties contemplated incorporation of department store into shopping centre – where development application for incorporation of department store refused – whether agreement for lease was varied to incorporate plans for department store CONTRACTS – termination – frustration – agreement for lease – landlord to perform works for construction of shopping centre development – where those works were authorised by and subject to a development consent obtained in 2008 – where parties operated under common assumption that landlord would be able to carry out works lawfully in accordance with development consent – neither party responsible under agreement for maintaining that state of affairs – development consent lapsed in 2014 prior to commencement of works – works subsequently unable to be performed lawfully – whether agreement frustrated – whether lapse of development consent resulted in a "radical difference" in circumstances of performance – whether landlord responsible for lapse of development consent LEASES AND TENANCIES – default and termination – abandonment – agreement for lease executed in 2008 – period of years during which landlord did not perform works under the agreement – where performance not insisted upon – where certain rights under the agreement expired during this period – where development consent allowing for project contemplated by agreement was due to lapse in February 2014 – where parties made no specific reference to agreement after April 2012 – whether agreement was abandoned – whether by conduct and correspondence parties mutually intended that contract was not to be performed Legislation Cited: Environmental Planning and Assessment Act 1979 (NSW) s 96 Sydney Local Environmental Plan 2012 cl 7.23 Cases Cited: Albert D Gaon & Co v Société Interprofessionelle des Oleagineux Fluides Alimentaires [1960] 2 QB 318 Bondi Beach Astra Retirement Village Pty Ltd v Gora (2011) 82 NSWLR 665; [2011] NSWCA 396 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153; [2001] NSWCA 61 Chinatex (Australia) Pty Limited v Bindaree Beef Pty Limited [2018] NSWCA 126 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337; [1982] HCA 24 Davis Contractors Ltd v Fareham Urban District Council [1956] AC 696 Denny, Mott & Dickson Ltd v James B Fraser & Co Ltd [1944] AC 265 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423; [1978] HCA 12 Edwinton Commercial Corp v Tsavliris Russ (Worldwide Salvage and Towage) Ltd (The "Sea Angel") [2007] 2 Lloyd's Rep 517; [2007] EWCA Civ 547 Fazio v Fazio [2012] WASCA 72 Fitzgerald v Masters (1956) 95 CLR 420; [1956] HCA 43 GC NSW Pty Ltd v Galati [2020] NSWCA 326 Hirji Mulji v Cheong Yue Steamship Co Ltd [1926] AC 497 Humphrey & Edwards v City of Sydney [2009] NSWLEC 1075 J Lauritzen AS v Wijsmuller BV (The "Super Servant Two") [1990] 1 Lloyd's Rep 1 Jafari v 23 Developments Pty Ltd [2019] VSCA 201 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 Marminta Pty Limited v French [2003] QCA 541 Masters v Cameron (1954) 91 CLR 353; [1954] HCA 72 Meehan v Jones (1982) 149 CLR 571; [1982] HCA 52 Moto Projects (No 2) Pty Ltd v North Sydney Council (1999) 106 LGERA 298; [1999] NSWLEC 280 New Zealand Shipping Co Ltd v Société des Ateliers et Chantiers de France [1919] AC 1 Ocean Tramp Tankers Corporation v V/O Sovfracht (The "Eugenia") [1964] 2 QB 226 oOh! Media Roadside Pty Ltd (Formerly Power Panels Pty Ltd) v Diamond Wheels Pty Ltd (2011) 32 VR 255; [2011] VSCA 116 Paal Wilson & Co AS v Blumenthal [1983] 1 AC 854 Pioneer Shipping Ltd v BTP Tioxide Ltd (The "Nema") [1982] AC 724 Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd [2015] NSWCA 16; (2015) 230 BPR 35,511 Ryder v Frohlich [2004] NSWCA 472 Técnicas Reunidas SA v Andrew [2018] NSWCA 192 Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd (1968) 118 CLR 429; [1968] HCA 8 Wallera Pty Limited v CGM Investments Pty Limited [2003] FCAFC 279 Category: Principal judgment Parties: Woolworths Group Ltd (Appellant) Gazcorp Pty Ltd (First Respondent) Nicholas Gazal (Second Respondent) Representation: Counsel: