Management Services Australia Pty Ltd trading as Peak Performance PM v PM Works Pty Ltd

[2019] NSWCA 107

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Variation of terms
4. › Agreement constituted by exchange of emails
5. › Whether royalty fee payable only when course materials used
6. › Objective approach to construction of commercial contracts
1. Contract
2. › Breach
3. › Whether failure to pay royalty fees constituted breach
4. › Where party developed and used own course materials
5. › Whether party bound to engage other party to provide certification services
1. Contract
2. › Termination
3. › Repudiation
4. › Whether conduct evinced intention not to be bound
5. › Whether parties mutually agreed to terminate
6. › Whether failure to pay fees amounted to repudiation

Quick Take

Where a variation agreement provides for royalty payments contingent on the use of a party's materials, the obligation to pay is not enlivened if the other party develops and uses its own materials without reference to the first party's materials.