Wagdy Hanna and Associates Pty Ltd v National Library of Australia

[2012] ACTSC 126

Supreme Court of the ACT

Built by Barristers,
For Australian Law.

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Interrogate

Catchwords

1. Contract
2. › Tender process
3. › Implied terms
4. › Duty of confidentiality
5. › Whether term implied into tender process contract that tender material kept confidential
1. Contract
2. › Construction of deeds
3. › Deed of settlement
4. › Release and covenant not to sue
5. › Meaning of 'arising out of or in any way related to the discontinued proceedings'
6. › Whether claims for breach of confidence within scope of release
1. Contract
2. › Breach of covenant not to sue
3. › Remedies
4. › Damages
5. › Whether actual costs of defending proceedings the appropriate measure
1. Evidence
2. › Circumstantial evidence
3. › Inference of disclosure
4. › Whether similarities between tender and constructed building sufficient to infer disclosure
5. › Requirement to exclude other rational explanations

Quick Take

A tender process contract includes an implied term requiring confidentiality of tender material, but a plaintiff alleging breach of that duty by inference from similarities between its tender and a constructed building must exclude all other rational explanations for the similarity. A deed of settlement containing a covenant not to sue in respect of matters 'arising out of or in any way related to the discontinued proceedings' is wide enough to encompass claims for breach of confidence arising from the same tender process. Breach of a confidentiality clause in a deed of settlement does not, without more, estop the other party from relying on the deed's terms, nor does it render the deed void or terminated absent an election to rescind.