Bowen v Alsanto Nominees Pty Ltd

[2011] WASCA 39

Western Australia Court of Appeal

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For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Formation
3. › Masters v Cameron classification
4. › Fourth class — parties bound immediately expecting further contract in substitution
5. › Whether agreement to lease binding where intended lessee was third party nominee
1. Contract
2. › Conditions precedent
3. › Condition precedent to performance
4. › Waiver of condition by party for whose benefit condition inserted
5. › Whether conduct in commencing fit-out constituted clear and unequivocal waiver
6. › Requirement that waiver be objectively determined
1. Contract
2. › Conditions precedent
3. › Contingent conditions
4. › Non-fulfilment within stipulated time
5. › Right to terminate
6. › Whether agreement voidable at instance of either party
1. Damages
2. › Assessment
3. › Breach of agreement to lease
4. › Mitigation
5. › Whether deduction required for commission saved by reason of breach

Quick Take

Commencing fit-out works on leased premises with the landlord's consent, where both parties know that regulatory approvals required by a condition precedent have not yet been obtained, does not constitute a clear and unequivocal waiver of that condition. The conduct must be objectively inconsistent with the continuation of the condition, not merely consistent with proceeding in expectation that the condition will be fulfilled. An agreement to lease entered into to secure premises while a nominee lessee is identified falls within the fourth class of Masters v Cameron where the parties are immediately bound but expect a further contract in substitution.