Anthony Wayne Elkerton and Ronald John Dean Willcocks in their capacity as Administrators of South Head & District Synagogue (Sydney) (In Liquidation) (Controllers Appointed) v Rabbi Benzion Milecki

[2018] NSWCA 141

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Contractual interpretation
3. › Construction of written contract
4. › Whether reference to 'congregation' in contract with incorporated entity referred to company or community of worshippers
5. › Whether clause in nature of recital or operative contractual term
1. Contract
2. › Incorporation of terms by reference
3. › Incorporation of non-national system of law
4. › Orthodox Jewish law (Halacha)
5. › Whether subject matter of incorporation sufficiently described to enable identification and ascertainment of content
6. › Whether certainty requirement satisfied
1. Contract
2. › Implied terms
3. › Implication from custom or usage
4. › Whether custom of Orthodox Jewish law sufficient to imply term into contract governed by Australian law
5. › Whether evidence of custom in Australian contracting practice required
1. Contract
2. › Implied terms
3. › Business efficacy
4. › Whether term providing life tenure necessary to give contract business efficacy
5. › Whether term so obvious it goes without saying
6. › Contract of indefinite duration terminable on reasonable notice
7. › BP Refinery (Westernport) Pty Ltd v Shire of Hastings (1977) 180 CLR 266

Quick Take

A general reference to a body of religious law (such as Halacha) in a contract governed by Australian law is insufficient to incorporate specific principles of that law as contractual terms; the subject matter must be sufficiently described to enable identification and ascertainment of the relevant rules, and a contract of indefinite duration without express termination provisions is terminable on reasonable notice notwithstanding religious law principles to the contrary.