Australia: Breach of statute and contract enforcement – Case Note: Gnych v Polish Club

Last Updated: 20 July 2015
Article by Toby Boys
Most Read Contributor in Australia, September 2017

Can a contract be enforced where one party has breached a statute in the course of making the contract?

The High Court recently considered this issue in Gnych v Polish Club Limited1. The Court found that a lease was enforceable even though the landlord licensee (the Club) had breached the Liquor Act 2007 (NSW) (the Liquor Act) by failing to obtain approval for the lease from the NSW Independent Liquor and Gaming Authority (the Authority).

The Club granted a lease to Mr and Mrs Gnych to run a restaurant. However, the Club failed to obtain approval from the Authority. Section 92 of the Liquor Act provides that the licensee must not lease or sublease any other part of the licensed premises except with the approval of the Authority. A financial penalty applies for any breach of the provision. The Liquor Act also gives the Authority the power to suspend, cancel or impose conditions on the liquor licence. In addition, the Liquor Act gives the Authority the power to "decide not to take any action".

Subsequently, when disputes arose between the parties, the Club claimed that the lease was unenforceable because approval had not been obtained. The Club excluded Mr and Mrs Gnych from the premises. Mr and Mrs Gnych took action.

On appeal, the High Court's majority judgment recalled the test that:

"an agreement may be unenforceable for statutory illegality in three categories of case, where:
  1. the making of the agreement or the doing of an act essential to the agreement's formation is expressly prohibited absolutely or conditionally by the statute;
  2. the making of the agreement is impliedly prohibited by statute. A particular case of an implied prohibition arises where the agreement is to do an act the doing of which is prohibited by the statute;
  3. the agreement is not expressly or impliedly prohibited by a statute but is treated by the courts as unenforceable because it is a 'contract associated with or in the furtherance of illegal purposes'."

However, it can often be difficult to work out whether any of the categories apply. The most obvious case, category 1, is where the legislation expressly states that a contract is unenforceable. An example is section 56 of the Property Law Act 1974 (Qld), which is replicated in other states. That section provides that no action may be brought against a person on a guarantee unless the guarantee is in writing and signed by the person to be charged. In other words, if those conditions are not satisfied, the guarantee cannot be enforced.

The position can be more difficult to work out where the legislation, such as section 92 of the Liquor Act, provides that an agreement must not be made unless some condition or requirement is met. The legislation may then provide for a consequence to follow from the contravention, such as a penalty, but it does not state expressly that the agreement is unenforceable.

The effect of the High Court's decision in Gnych is that, in those types of cases, the courts will be reluctant to decide that the agreement is unenforceable where the Parliament has chosen not to impose that consequence in the legislation itself.

An important point in the High Court's decision was that the Liquor Act allows the Authority to decide what steps to take in response to the illegality. The Authority can decide that the lease should be approved retrospectively (because the tenant is a fit and proper person to operate the licensed premises) or alternatively that the lease should not be approved, in which case the Authority can decide to suspend, cancel or impose conditions on the liquor licence. But the point made by the High Court is that, if a court was to decide that the lease was unenforceable then the Authority's power to decide what should be done would be rendered nugatory. It may also allow the wrong-doer to rely upon their own default and penalise the innocent party if they are not able to enforce the relevant contract.

The High Court's decision in Gnych is in keeping with previous cases on this subject. For example, in Master Education Services v Ketchell2, the High Court determined that a franchise agreement was not automatically unenforceable where the franchisor breached section 51AD of the then Trade Practices Act 1974 (now section 51ACA of the Competition and Consumer Act 2010) by failing to comply with the Franchising Code. The High Court pointed to the fact that the TPA provided for a whole range of possible consequences to remedy the breach, so it would be wrong for the courts to make the franchise agreement automatically unenforceable in those circumstances.

In summary, if the legislation in question provides for a penalty or range of consequences for some illegality (including possibly taking no action), then it is likely that the courts will find that an agreement is enforceable. The courts are much more likely to leave the consequences up to the legislation and the relevant authority to decide.

This publication does not deal with every important topic or change in law and is not intended to be relied upon as a substitute for legal or other advice that may be relevant to the reader's specific circumstances. If you have found this publication of interest and would like to know more or wish to obtain legal advice relevant to your circumstances please contact one of the named individuals listed.

To print this article, all you need is to be registered on

Click to Login as an existing user or Register so you can print this article.

Toby Boys
Some comments from our readers…
“The articles are extremely timely and highly applicable”
“I often find critical information not available elsewhere”
“As in-house counsel, Mondaq’s service is of great value”

Related Video
Up-coming Events Search
Font Size:
Mondaq on Twitter
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
Email Address
Company Name
Confirm Password
Mondaq Topics -- Select your Interests
 Law Performance
 Law Practice
 Media & IT
 Real Estate
 Wealth Mgt
Asia Pacific
European Union
Latin America
Middle East
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.


Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.


Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.


A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.


This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.


If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.


This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at and we will use commercially reasonable efforts to determine and correct the problem promptly.