Nashvying P/L & Ors v Giacomi

[2007] QCA 454

Queensland Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Landlord and Tenant
2. › Creation of relationship
3. › Distinction between lease and licence
4. › Mining and quarrying lease
5. › Whether instrument granting right to win and remove quarry materials constituted lease or licence
6. › Whether instrument created profit à prendre distinct from lease
7. › Real Property Regulation 1986 (Qld), form 8
1. Contract
2. › General contractual principles
3. › Offer and acceptance
4. › Vagueness and uncertainty
5. › Illusory contracts
6. › Whether contract illusory where lessee had discretion as to commencement of quarrying operations
7. › Whether royalties constituted ascertainable rent
1. Contract
2. › General contractual principles
3. › Construction and interpretation
4. › Implied terms
5. › Term implied by law
6. › Whether obligation to obtain development permit within reasonable time implied
7. › Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337
1. Landlord and Tenant
2. › Forfeiture
3. › Notice requirements
4. › Whether notice complied with s 124 of Property Law Act 1974 (Qld)
5. › Whether breach capable of remedy
6. › Whether 'once and for all' breach of positive covenant necessarily incapable of remedy
7. › Property Law Act 1974 (Qld), s 124

Quick Take

A lessor seeking to terminate a mining or quarrying lease for breach of a positive covenant (such as failure to obtain required permits) must comply strictly with the notice requirements of s 124 of the Property Law Act 1974 (Qld), including allowing a reasonable time for remedy and including the prescribed note about consequences of non-compliance. A 'once and for all' breach of a positive covenant is ordinarily capable of remedy. Where a lease requires the lessee to obtain permits or approvals but does not specify a time for doing so, a term will be implied by law that such permits be obtained within a reasonable time.