Waiving non-compliance with a time limit

Citation

Dowden, M. (2001), "Waiving non-compliance with a time limit", Journal of Property Investment & Finance, Vol. 19 No. 6. https://doi.org/10.1108/jpif.2001.11219fab.003

Waiving non-compliance with a time limit

Waiving non-compliance with a time limit

Even where it is held that a clause made time of the essence, the recent Privy Council decision in Fifield v. W&R Jack Limited (2000) Lawtel serves as a useful reminder that a landlord might all too easily lose the benefit of such a clause if its conduct amounts to a waiver of the tenant's non-compliance.

The rent review clause in Fifield included a provision allowing the tenant 28 days to serve a counter notice, failing which the rent specified in the landlord's original notice would stand. The New Zealand Court of Appeal held that the tenant was not bound by the time limit, but it did so on the grounds that the tenant would be caused "undue hardship" under a New Zealand statute, the Arbitration Amendment Act 1938, if it was not allowed to refer the rent review to arbitration.

The Privy Council (Lords Browne-Wilkinson, Cooke, Clyde and Hobhouse together with Henry J) dismissed the landlord's appeal against this decision. However, they did so on the grounds that it was not necessary to consider the statute and the question of "undue hardship". In the New Zealand courts the tenant had contended that the landlord's conduct in continuing negotiations after the expiry of the stated time limit amounted to a waiver of that time limit. The Privy Council considered that contention to be well founded. The landlord could not treat the proposed rents as having been deemed to be agreed, nor resist enforcement of the arbitration clause.