Sui v Jiang (No 2)

[2025] NSWCA 86

NSW Court of Appeal

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Interrogate

Catchwords

1. Contract
2. › Construction
3. › Commercial agreement between lay parties
4. › Whether contract imposed obligation to elect between mutually exclusive scenarios
5. › Whether rights or obligations conferred by clause providing party 'entitled to' choose among alternatives
1. Contract
2. › Construction
3. › Fixed-term agreements
4. › Termination by effluxion of time
5. › Whether valid election could be made after contract terminated
6. › Whether rights could accrue after termination of executory agreement
1. Contract
2. › Election
3. › Doctrine of election at common law
4. › Requirement of clear and unequivocal communication or conduct to exercise rights
5. › Whether doctrine of election engaged where no obligation to choose among inconsistent rights
6. › Whether 'less unequivocal' conduct sufficient outside context of affirmation of contract

Quick Take

The common law doctrine of election, including the tolerance for 'less unequivocal' conduct, is confined to situations involving a mandatory binary choice between inconsistent rights (such as termination and affirmation) and does not apply where a party has a right but no obligation to choose among multiple scenarios.