Cao v ISPT Pty Ltd

[2024] NSWCA 188

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction of commercial lease
3. › Special condition requiring tenant to open for business during specified hours
4. › Whether COVID-19 public health restrictions prevented tenant from 'opening' premises for business
5. › Paramount clause to be construed before paramountcy can take effect
6. › Not construed to require illegal activity
1. Contract
2. › Termination
3. › Frustration
4. › Impossibility of performance
5. › Commercial lease
6. › COVID-19 public health orders as supervening event
7. › Whether risk allocated to tenant under lease
8. › Whether orders required radical or fundamental change in what contracted for
9. › Public Health Act 2010 (NSW), s 7

Quick Take

Express risk allocation clauses (such as 'tenant's risk' provisions) will likely preclude frustration in COVID-19 claims by tenants or guarantors, and the assessment of frustration must account for government support measures as well as restrictions.

Case Details

Citation[2024] NSWCA 188

CourtNSWCA

JurisdictionNew South Wales

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Cited by6

2025Rajagopal v Lavish Construction and; Developments Pty LtdNSWCATCD 228
2025Manson v LybertNSWSC 460
2024Jiaqing Xu v Cao & Du Management Pty Ltd (No 2)NSWSC 1596
2024Jiaqing Xu v Cao & Du Management Pty LtdNSWSC 1474
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