Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268

New South Wales Court of Appeal

CITATION: Macquarie International Health Clinic Pty Ltd v Sydney South West Area Health Service [2010] NSWCA 268

HEARING DATE(S): 7-11; 15-18 June 2010

JUDGMENT DATE: 14 October 2010

JUDGMENT OF: Allsop P at 1; Hodgson JA at 31; Macfarlan JA at 389

Direct that Macquarie within twenty-eight days provide to the Court either agreed short minutes giving effect to the decisions on appeal DECISION: or else its proposed short minutes and submissions in support and if the short minutes are not agreed that within a further fourteen days Area Health provide to the Court its proposed short minutes and submissions in support.

CATCHWORDS: CONTRACT – Promise to act in utmost good faith - Meaning and effect of that promise – Whether that promise breached – Whether damages available. - CONTRACT – Damages – Expectation and reliance damages – Whether necessary for plaintiff to prove readiness willingness and ability to afford substantial performance on its part. - LANDLORD AND TENANT – Re-entry and forfeiture – Requirements of s 129 of Conveyancing Act 1919 – Whether they apply in cases of essential breach or repudiation – Meaning of "rent" in s 129(8) – Whether notice under s 129 must specify what lessor requires lessee to do. - PROCEDURE – Parties – Whether promise to two contracting parties is joint or several – Whether both parties must be joined in proceedings. - PROCEDURE – Appeal – Events occurring after first instance decision – Whether material to decision – Whether within possibilities taken into account by primary judge. - RESTITUTION – Expenditure by lessee – Lease terminated – Lease contains compensation clauses – Case conducted on assumption that compensation clauses valid, applicable and efficacious, albeit that their value defended as vagaries of the market – Primary judge refuses restitution – In subsequent proceedings to enforce compensation clauses lessor contends they are invalid, not applicable and inefficacious – Whether refusal of restitution affected.