Wharf St P/L & Anor v Amstar Learning P/L & Ors

[2004] QCA 256

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Offer and acceptance
3. › Agreement by exchange of correspondence
4. › Whether binding contract where formal instrument contemplated but never executed
5. › Masters v Cameron categories
6. › Whether parties intended to be immediately bound
1. Contract
2. › Vagueness and uncertainty
3. › Description of premises
4. › Whether lease void for not specifying area of lease
5. › Admissibility of extrinsic evidence to identify subject matter
1. Contract
2. › Construction and interpretation
3. › Termination clause
4. › Whether lessee's repudiatory conduct constituted 'termination' by lessee within meaning of early termination clause
5. › Pre-contractual correspondence as aid to construction
1. Guarantee
2. › Construction and effect
3. › Extent of liability
4. › Whether guarantee of 'payment of rent' extends to damages for future rent after termination of lease
5. › Distinction between guarantee of payment and guarantee of performance
6. › Property Law Act 1974 (Qld), s 56

Quick Take

A guarantee of 'payment of rent' is a conditional undertaking falling within the first class identified in Sunbird Plaza v Maloney — the guarantor's obligation is to pay if the debtor does not, and does not extend to damages for future rent after the lessor terminates the lease and re-enters. A lessor intending to recover future rent from a guarantor after termination should keep the lease in being or draw a broader form of guarantee. Separately, a lessee's repudiatory conduct (persistent failure to pay rent) may constitute 'termination' by the lessee for the purposes of an early termination clause, even though the lessor formally accepted the repudiation.