Section 129 of the Conveyancing Act (NSW) applies to a landlord's termination of a lease for non-repudiatory breach of essential terms; a landlord cannot bypass s 129 by relying on common law termination for fundamental breach. The dicta in Marshall v Snowy River suggesting otherwise should not be followed. Where a landlord has prevented or obstructed a tenant's performance of fit-out obligations, the tenant is excused from literal compliance and the landlord cannot rely on those breaches to terminate. The question whether the High Court will address the interaction of s 129 with common law termination for non-repudiatory fundamental breach remains open.
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