Read the full judgment text of HCA 004760/1981 on BabelCite. This High Court CFI judgment was delivered on 12 August 1982 before Barnes, J..
Landlord and tenant – lease – breach of covenant to pay rent – wrongful repudiation – acceptance of repudiation – whether principles applicable to ordinary contracts extend to leases – three-year written tenancy agreement for industrial premises dated 16 December 1978 – rent payable monthly in advance – tenant paid 24 monthly instalments punctually then ceased paying from 1 January 1981 – plaintiff landlord issued writ on 24 February 1981 – defendant delivered vacant possession on 6 March 1981 and paid mesne profits to that date – plaintiff refused set-off of two-month deposit – plaintiff sued for damages for loss of rent from 7 March 1981 to 31 October 1981 until reletting on 1 November 1981 – whether contractual doctrine of acceptance of repudiation applies to a lease – whether failure to pay two rent instalments evinced intention not to perform contract – held that modern trend treats commercial lease as both conveyance and contract so repudiation doctrine applies – followed Highway Properties Ltd. v. Kelly, Douglas & Co. Ltd. and National Carriers Ltd. v. Panalpina Ltd. – rejected Total Oil Great Britain Ltd. v. Thompson Garages (Biggin Hill) Ltd. to the extent Lord Denning held repudiation and acceptance do not end a lease – held that non-payment of two instalments unaccompanied by abandonment of possession or other breaches was not a wrongful repudiation – per Diplock LJ in Financings Ltd. v. BaBldock, where tenant's conduct is not wrongful repudiation, landlord exercising express power to determine is not entitled to damages for non-performance during remaining term – plaintiff's claim for loss of rent during unexpired term dismissed.
Legal issues: Applicability of acceptance of repudiation principles to leases · Whether failure to pay two rent instalments constituted wrongful repudiation
Outcome: Plaintiff's claim for damages for non-performance of the contract during the unexpired term dismissed; the tenant's failure to pay two instalments of rent was held not to constitute a wrongful repudiation, so the landlord, although entitled to determine under the express power in clause 4(a), was not entitled to damages for loss of rent for the unexpired period.