References: [1967] HCA 52, (1967) 117 CLR 539
Links: Austlii
Coram: Windeyer J, Barwick CJ, McTiernan, Kitto, Taylor, Owen JJ
Ratio: Austlii High Court of Australia – Landlord and Tenant – Lease – Determination – Forfeiture – Covenant to commence erection of building within specified time – Clearing operations commenced – Whether breach – Acceptance of rent after notice of breach – Conduct of lessor and lessee – Waiver – Crown lease – Statutory procedure for determination upon breach of covenant – Effect of conduct upon statutory right to determine – Notice – Requirement that conditions for failure to comply with &which lease may be determined be fully set out – Reference to terms of lease – Whether sufficient – Signature on notice – Delegation of function by Minister – Delegate designated by office held – City Area Leases Ordinance 1936-1964 (A.C.T.), ss. 6,22.*
Windeyer J set out the pronciples behind the waiver of a right to forfeit a lease: ‘A waiver in this sense is more properly understood as an election. The essence of the doctrine, in cases between landlord and tenant, is that where a Lease contains a provision for forfeiture and a right of re-entry upon breach of a covenant by the lessee, then, upon a breach occurring, the lessor can either take advantage of his right of forfeiture and re-entry or waive this and treat the Lease as still subsisting. If, with knowledge of a breach, giving him a right of re-entry, he does an act inconsistent with his avoiding the Lease, he is deemed to have elected not to avoid it. Anything which a landlord does or says which is an unequivocal recognition of the continued existence of the Lease when he is aware of facts which would have given him a right of re-entry will amount to a waiver of that right. One act which, by the common law, is always regarded as unequivocal, and therefore necessarily a waiver of a right of re-entry on account of a breach of covenant by the lessee, is the lessor’s acceptance, with knowledge of the fact of the breach, of rent accrued due after the breach. Apart from any special term in the Lease . . or any statutory modification of the common law, acceptance of rent due in respect of a current period is an obvious recognition of a tenancy then subsisting.’
Last Update: 18-Aug-16
Ref: 568017