In the recent case of Gazcorp Pty Ltd v Woolworths Group Ltd [2021] NSWSC 308 the parties entered into an agreement for lease in relation to land owned by Gazcorp, who claimed that the agreement had ended because either the agreement was frustrated, or because of “mutual abandonment.” 

Under the contract, Gazcorp agreed to carry out works to construct a shopping centre and grant a lease to part of the shopping centre to Woolworths. However, Development Approval for the shopping centre was refused, which meant that the agreement was frustrated because of the unforeseen event that the shopping centre could not be constructed.

The agreement was further declared to have been “abandoned” because of the lengthy period in which the landlord did not carry out the building works during which the tenant was not calling upon the landlord to perform the contract. Hence, the inference drawn was that the contract had been terminated by mutual abandonment. Accordingly, the Court found that the agreement, whether as varied or executed, was no longer on foot. 

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