Breaches of lease 'capable of remedy': A technical or practical approach?

Abstract

The service of a notice to remedy a breach of a lease covenant is the essential precursor to a lessor enforcing a right of re-entry where the lease contains a re-entry clause. If the notice can be invalidated by the lessee, subsequent proceedings will be misconceived. A failure to specify in the notice how a breach may be remedied, where the breach is capable of remedy or where compensation may be sought in lieu, may cause the invalidation of the notice. There are significant differences of opinion between the English and Australian courts on this question. This article explores these differences in the light of a recent English Court of Appeal decision Akici v LR Butlin Ltd [2006] 1 WLR 201. This case strongly suggests that the more practical interpretation of the Australian courts of the expression "if the breach is capable of remedy" is the correct approach instead of the more technical and restrictive approach that has been previously accepted in England.