Fuller v Albert

366 ALR 635; [2021] NSWCA 88

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Implied terms
3. › Terms implied in fact
4. › Necessity test
5. › Whether implication of term of cooperation necessary to give business efficacy
6. › Whether availability of alternative formulations precludes implication
7. › Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337
1. Contract
2. › Termination
3. › Repudiation
4. › Acceptance of repudiation
5. › Whether conduct at meeting amounted to repudiation
6. › Whether allegations in pleadings inconsistent with contract constituted repudiation
7. › Whether denial of allegations constituted acceptance of repudiation
1. Mortgages and Securities
2. › Mortgages
3. › Equity of redemption
4. › Mortgage over company share
5. › Contractual right to redemption extinguished on default
6. › Whether equitable right to redemption survived
7. › Whether delay sufficient to extinguish equity of redemption absent foreclosure or exercise of power of sale

Quick Take

The availability of several alternative implied terms does not necessarily preclude the implication of any term; the court may still identify the essential obligation that gives business efficacy to the contract. Additionally, delay in repayment of a secured loan does not extinguish the equity of redemption without foreclosure or exercise of a power of sale.