Easts Van Villages & Anor -v- Minister Administering the National Parks and Wildlife Act & Anor [2001] NSWSC 559

(2001) ASAL (Digest) 55-65 (2001) ATPR (Digest) 41-211 Reported Decision : (2001) Aust Contract R 90-132 [2001] NSWSC 559 [2001] ACL Rep 100 NSW 6 [2001] ACL Rep 245 NSW 24

New South Wales Supreme Court

CITATION : Easts Van Villages & Anor -v- Minister Administering the National Parks and Wildlife Act & Anor [2001] NSWSC 559 CURRENT JURISDICTION: Common Law Division Administrative Law List FILE NUMBER(S) : SC 30056/97 HEARING DATE(S) : 31/5/01-7/6/01, 12/6/01-14/6/01 JUDGMENT DATE : 6 July 2001

Easts Van Villages Pty Ltd (First Plaintiff) PARTIES : Van Villages Pty Ltd (Second Plaintiff) Minister Administering the National Parks and Wildlife Act (First Defendant) State of New South Wales (Second Defendant) JUDGMENT OF : Mathews AJ

COUNSEL : PM Biscoe QC; S Stanton (Plaintiffs) JM Ireland QC; J Maston (Defendants) SOLICITORS : Aitken McLachlan & Thorpe (Plaintiffs) Crown Solicitor (Defendants) CATCHWORDS : LANDLORD AND TENANT - holding over after fixed term lease - whether tenancy continued as monthly tenancy or whether lease for indefinite period created - found to be monthly tenancy - landlord entitled to terminate lease on appropriate notice - ESTOPPEL - lease terminated - lessee assumed that tenancy would continue until lessor undertook tender process for new lease - no detriment suffered - Commonwealth v Verwayen applied - no unconscionable conduct - MISLEADING AND DECEPTIVE CONDUCT - s 42 Fair Trading Act 1987 (NSW) - misrepresentation as to lessor's intention to hold public tender for renewal of lease - whether the Crown, as lessor, carried on a business and whether representations were made in trade or commerce - held, Crown not carrying on a business, some representations made in trade or commerce - Ministerial press release not in trade or commerce - claim for loss of opportunity to become successful tenderer - claim not made out as no loss or damage suffered - CONTRACT - implied term to act reasonably and in good faith in exercise of legal rights - not needed to give business efficacy - no grounds for implication National Parks and Wildlife Act 1974 LEGISLATION CITED : Local Government (Movable Dwellings) Amendment Act 1986 Fair Trading Act 1987 Commonwealth v Verwayen (1991) 170 CLR 394 Waltons Stores (Interstate Ltd) v Maher (1988) 164 CLR 387 Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 McMillan v Commonwealth (1997) 77 FCR 337 CASES CITED : Fasold v Roberts (1997) 145 ALR 548 FCT v Whitfords Beach Pty Ltd (1982) 150 CLR 355 Concrete Constructions (NSW) Pty Ltd v Nelson (1991) 69 CLR 594 Munchies Management Pty Ltd v Belperio (1989) 84 ALR 700 Sellars v Adelaide Petroleum NL (1994) 120 ALR 16 Shepherd v Noyce Bros Pty Limited (1985) ATPR 40-588 Unilan Holdings v Kerin (1992) 107 ALR 709 DECISION : Verdict for the defendants