› Whether termination right conditional upon prior performance of other contractual obligations
› Whether clear and unequivocal language of termination clause subverted by conditions precedent provisions
Contract
› Implied terms
› Implied term to do all things necessary to enable other party to have benefit of contract
› Whether implied term can modify or override express contractual rights
› Codelfa Construction Pty Ltd v State Rail Authority (NSW) (1982) 149 CLR 337
› BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266
Contract
› Construction
› Strata title pre-sale contracts
› Vendor's right to terminate if strata plan not registered within specified period
› Interaction between conditions precedent and termination provisions
› Strata Titles Act 1985 (WA), ss 70, 70A, 70B
Appeal
› Leave to appeal
› Interlocutory decision
› Decision on preliminary issue
› Whether decision plainly wrong
› Whether substantial injustice caused by leaving decision unreversed
Quick Take
1An implied term requiring each party to do all things necessary to enable the other party to have the benefit of the contract cannot be applied to modify or defeat substantive rights and obligations expressly conferred by the contract, including an express right of termination.
2Where a contract contains both conditions precedent to completion (requiring registration of a strata plan within 90 days of practical completion) and a separate express termination right (exercisable if the strata plan is not registered within a specified period from execution), there is no necessary conflict between the two provisions, as they address different time periods and circumstances.
Case Details
Citation[2009] WASCA 175
CourtWASCA
JurisdictionWestern Australia
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