The Court held that a contractual show cause termination regime (clauses 73-75 of the subcontract) excluded the builder's common law right to terminate for breach of contract, but did not exclude the right to terminate for renunciation (repudiation in the first Koompahtoo sense). Key indicators of exclusion included: the contractual regime substituting a 'substantial breach' test for the common law essential/non-essential term distinction; the absence of a clause preserving common law rights in the termination-for-breach provisions, contrasted with an express preservation clause in the insolvency termination provisions; and the procedural protections afforded to the subcontractor that would be rendered nugatory if common law termination co-existed. On the facts, physically aggressive and threatening conduct by the subcontractor's general manager at the builder's office — including punching a table, pursuing staff through the office while yelling abuse, and threatening a female employee — was held to constitute renunciation, entitling the builder to terminate immediately without following the show cause process. The Court also held that a subcontractor's sub-subcontractor attending a meeting was not an agent of the subcontractor, and the sub-subcontractor's threatening conduct on the street was not attributable to the subcontractor.
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