Mackinlay v Derry Dew Pty Ltd

(2014) 46 WAR 247; [2014] WASCA 24

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Illegal and void contracts
3. › Effect of illegality or invalidity
4. › Severance
5. › Whether options to renew severable from lease void under statute
6. › Whether elimination of illegal provision changes kind of contract
7. › Town Planning and Development Act 1928 (WA), s 20(1)(a)
1. Real Property
2. › Leases
3. › Construction of lease
4. › Whether lease of whole lot or part of lot
5. › Distinction between 'Leased Premises' and 'Land'
6. › Lease of building and curtilage
7. › Town Planning and Development Act 1928 (WA), s 20(1)(a)
1. Real Property
2. › Leases
3. › Statutory illegality
4. › Lease of part of lot for term exceeding statutory limit
5. › Whether lease illegal and void
6. › Town Planning and Development Act 1928 (WA), s 20(1)(a), s 20(1)(d), s 20(1)(da)
1. Solicitors
2. › Breach of retainer
3. › Negligence
4. › Failure to advise on illegality of lease
5. › Damages
6. › Causation
7. › Whether respondent's own act of termination broke chain of causation

Quick Take

Where s 20(1)(a) of the Town Planning and Development Act 1928 (WA) renders a lease illegal and void because the aggregate term (including options) exceeds the statutory limit for a lease of part of a lot, the options to renew cannot be severed to save the balance of the lease where the options are at or close to the heart of the transaction. A solicitor who fails to advise a client that a lease is void under s 20(1)(a) will be liable for the client's loss from the moment of settlement, and the client's subsequent termination of the periodic tenancy does not break the chain of causation.