Torbey Investments Corporated Pty Ltd v Ferrara

[2017] NSWCA 9

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation of contracts
3. › Purposive interpretation
4. › Procedural requirements and time limits for notices
5. › Whether terms imposing procedural requirements for notices of breach and termination were mandatory or facultative
6. › Effect of non-compliance with notice provisions
1. Administrative Law
2. › Judicial review
3. › Supervisory jurisdiction
4. › Scope of relief under s 69 Supreme Court Act 1970 (NSW)
5. › Whether court can substitute orders or limited to quashing and remitting
6. › Supreme Court Act 1970 (NSW), s 69
1. Administrative Law
2. › Judicial review
3. › Error of law on the face of the record
4. › Failure to consider evidence
5. › Whether overlooking evidence constitutes error of law
6. › Distinction between overlooking critical evidence and preferring other evidence
1. Administrative Law
2. › Judicial review
3. › Discretion not to intervene
4. › Conduct of party seeking review
5. › Whether discretion should be exercised to decline relief

Quick Take

Contractual provisions requiring notices to be given by certified mail or registered post, or specifying particular content for notices of breach and termination, are facultative rather than mandatory where the purpose of the provision (ensuring receipt and comprehension) has been achieved; non-compliance does not invalidate an otherwise effective notice. The CTTT had no power to award pre-determination interest under cl 49 of the CTTT Regulation 2009. In supervisory jurisdiction under s 69 of the Supreme Court Act 1970 (NSW), the Court of Appeal can substitute the only order available in law rather than merely quashing and remitting, though this question remains contested within the Court.