Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd

(2019) 101 NSWLR 679; [2019] NSWCA 185

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction and interpretation
3. › Ship construction subcontract
4. › Variation agreement
5. › Whether agreement on baseline constituted condition precedent to operative provisions coming into effect
6. › Whether 'date set out in' clause referred to primary date or proviso date where clause contained two dates
1. Contract
2. › Termination
3. › Contractual right to terminate
4. › Whether right exercised within reasonable time
5. › Meaning of reasonable time
6. › Point at which reasonable time to be assessed
7. › Whether assessed at date of contract or date of exercise
8. › Whether nature of right affects what is reasonable
1. Contract
2. › Termination
3. › Election
4. › Whether party elected to affirm contract
5. › Whether continued negotiations rendered conduct equivocal
1. Contract
2. › Construction and interpretation
3. › Release clause
4. › Whether release survived termination of agreement containing it
5. › Whether release was conditional on continued operation of agreement

Quick Take

What constitutes a reasonable time to exercise a contractual right of termination is to be ascertained as at the date of the contract, not by ex post facto assessment of the parties' conduct, and where the precondition to the right lies in the hands of the terminating party and no further investigation is required, prompt exercise is required once the right is engaged.