| | | | | | | | NCAT Legal Bulletin Issue 3 of 2016
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| The NCAT Legal Bulletin provides a summary of relevant and interesting case law of significance to the work of the NSW Civil and Administrative Tribunal. This issue covers the period of late April to late May 2016. |
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Attwells v Jackson Lalic Lawyers Pty Limited [2016] HCA 16
4 May 2016
In brief: The High Court held (by a 5:2 majority) that advocate's immunity does not extend to negligent advice given by a lawyer which leads to settlement of a case by agreement between the parties ([5]-[6]). In so holding, the Court declined to overrule its decisions in D'Orta-Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 and Giannarelli v Wraith (1988) 165 CLR 543 and abolish the immunity.
Read the decision on the High Court of Australia website.
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| Nguyen v The Queen [2016] HCA 17
4 May 2016
In brief: The High Court unanimously dismissed an appeal from a decision of the NSW Court of Criminal Appeal. The NSW Court of Criminal Appeal (CCA) had, relying on the principle in R v De Simoni, quashed the sentences imposed by the sentencing judge and resentenced the appellant to a long term of imprisonment. The De Simoni principle provides that:
"[A] judge, in imposing sentence, is entitled to consider all the conduct of the accused, including that which would aggravate the offence, but cannot take into account circumstances of aggravation which would have warranted a conviction for a more serious offence."
The High Court held that the Court of Appeal's reliance on the De Simoni principle was misplaced, given the principle does not apply to preclude a sentencing court from taking into account the absence of a factor which, if present, may have rendered the offender guilty of a more serious offence (at [29]). Nevertheless, the High Court considered the CCA's conclusion that the sentence was "manifestly inadequate" to be "plainly correct" (at [43]).
Read the decision on the High Court of Australia website.
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| Badenach v Calvert [2016] HCA 18
11 May 2016
In brief: The High Court held that a solicitor did not owe a duty of care to a beneficiary under a will to advise the testator of the options available to the testator to avoid exposing his estate to a claim under the Testator's Family Maintenance Act 1912 (Tas). The majority considered loss of an opportunity in the context of causation:
[38] It has been explained that to speak of loss as the loss of a "chance" distorts the question of causation. It involves the application of a lesser standard of proof than is required by the law and, it follows, by s 13(1)(a) [of the Civil Liability Act 2002 (Tas)]. It confuses the issue of the loss caused with the issue of assessing damages which are said to flow from that loss. In that assessment a chance may be evaluated.
[39] The respondent's case on causation is not improved by seeking to equate the chance spoken of with an opportunity lost. It may be accepted that an opportunity which is lost may be compensable in tort. But that is because the opportunity is itself of some value. An opportunity will be of value where there is a substantial, and not a merely speculative, prospect that a benefit will be acquired or a detriment avoided.
[40] It remains necessary to prove, to the usual standard, that there was a substantial prospect of a beneficial outcome. This requires evidence of what would have been done if the opportunity had been afforded.
Read the decision on the High Court of Australia website.
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| Military Rehabilitation and Compensation Commission v May [2016] HCA 19
11 May 2016
In brief: The High Court unanimously allowed an appeal from the Full Federal Court and held that the respondent was not entitled to compensation under s 14(1) of the Safety, Rehabilitation and Compensation Act 1988 (Cth) as he had not suffered an "injury" for the purposes of that Act.
Read the decision on the High Court of Australia website.
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| Day v Australian Electoral Officer for the State of South Australia [2016] HCA 20
13 May 2016
In brief: The High Court unanimously upheld the Commonwealth Electoral Amendment Act 2016 (Cth), which introduced a new form of Senate ballot paper and a new process for marking it. The legislation had been challenged on the grounds that the new form and process was contrary to ss 7 and 9 of the Constitution and the implied freedom of political communication.
Read the decision on the High Court of Australia website.
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| Bell Group N.V. (in liquidation) v Western Australia [2016] HCA 21
16 May 2016
In brief: The High Court unanimously held that the Bell Group Companies (Finalisation of Matters and Distribution of Proceeds) Act 2016 (WA) is invalid in its entirety by operation of s 109 of the Commonwealth Constitution, in that it is inconsistent with the Income Tax Assessment Act 1936 (Cth) and the Taxation Administration Act 1953 (Cth).
Read the decision on the High Court of Australia website.
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| | Court of Appeal of New South Wales
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| Bennett v Gennacker Pty Ltd [2016] NSWCA 89
29 April 2016 - Beazley P, Basten and Ward JJA
Gennacker Pty Ltd (Gennacker) sought to terminate an occupation agreement it had made with the Bennetts: first by giving the Bennetts three months’ notice and then by commencing proceedings in the Consumer, Trader and Tenancy Tribunal (CTTT) seeking an order for termination and possession. After the CTTT declined to terminate the agreement, Gennacker commenced judicial review proceedings in the Supreme Court. The Supreme Court decision set aside the CTTT’s decision and remitted the matter to NCAT.
The issue before both the CTTT and the Court of Appeal was whether the occupation agreement was one to which the Holiday Parks (Long-Term Casual Occupation) Act 2002 (NSW) (the Act) applied: if it did not, “the termination notice which relied on a right to terminate without grounds, was ineffective to terminate the occupation” (at [4]).
Section 5(1) of the Act provides that the Act applies to any occupation agreement which satisfies the four conditions in s 5(1). The CTTT identified three bases upon which it held that the Act did not apply. The Court of Appeal held that the Act did not apply, despite the Tribunal erring in its approach to one of the conditions:
[32] The Tribunal made a finding that the occupants “do not” have their principal place of residence elsewhere, expressed in the present tense so as to relate to the time of the decision.
[33] The condition identified in s 5(1)(a) is whether the occupant “has” a principal place of residence elsewhere at the time the agreement is “entered into”.
Hence the Court of Appeal set aside the decision and orders of the Supreme Court.
Read the decision on the NSW Caselaw website.
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| Zaps Transport (Aust) Pty Ltd v PJG Warehousing & Distribution Pty Ltd [2016] NSWCA 97
9 May 2016 - Gleeson and Payne JJA and Emmett AJA
The primary judge held that a purchaser of a business was liable for interest under a clause which provided that if the purchaser did not complete, “without default by the vendor”, interest ran on the outstanding amount. On appeal, the purchaser contended that the vendor repudiated the contract by failing to accurately calculate the adjustment for “employee entitlements” (and thus was not entitled to interest). Justice Gleeson, in obiter, considered that a “settlement sheet” containing an adjustment for employee entitlements, and an email showing that the sheet had been received by the purchaser’s solicitor, did not constitute renunciation of the vendors’ contractual obligations with respect to completion of the contract:
[3] The documents sought to be relied upon by the appellants (the purchaser/guarantor) do not establish that the respondent/vendors were either unwilling or unable to perform their contractual obligations, that is, that they evinced an intention to no longer be bound by the contract, or stated that they intended to fulfil the contract only in a manner substantially inconsistent with their obligations and in no other way: Shevill v Builders Licensing Board [1982] HCA 47; 149 CLR 620 (Shevill) at 625-626 (Gibbs CJ); Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; 166 CLR 623 at 634, 647-648, 658 (Laurinda); Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd [2007] HCA 61; 233 CLR 115 (Koompahtoo) at [44]. Repudiation is a serious matter and is not to be lightly found or inferred: Shevill at 633 (Wilson J).
[4] The test for renunciation is whether the conduct of one party is such as to convey to a reasonable person, in the situation of the other party, renunciation either of the contract as a whole or of a fundamental obligation under it: Koompahtoo at [44]; Laurinda at 659 (Deane and Dawson JJ) and 647 (Brennan J).
Read the decision on the NSW Caselaw website. |
| Fajloun v Khoury [2016] NSWCA 101
10 May 2016 - Meagher and Simpson JJA and Emmett AJA
Simpson JA, in dissent but not on this point, summarised the elements of contempt arising from non-compliance with a court order and related principles:
[57] Where contempt is alleged to arise from non-compliance with a court order, it is necessary that it be established:
(i) that an order was made by a court;
(ii) that the terms of the order were clear, unambiguous and capable of compliance;
(iii) that the alleged contemnor had knowledge of the terms of the order; and
(iv) that the alleged contemnor breached the terms of the order.
National Australia Bank v Juric [2001] VSC 375 at [37]; Advan Investments Pty Ltd v Dean Gleeson Motor Sales Pty Ltd [2003] VSC 201 at [31]; Wyszenko v Wyszenko [2012] NSWSC 732 were cited as authority for these propositions.
[58] The standard of proof is the criminal standard, that is, proof beyond reasonable doubt: Witham v Holloway [1995] HCA 3; 183 CLR 525; Anderson v Hassett [2007] NSWSC 1310. Proof of a specific intent to disobey the court’s order is not necessary. It is sufficient to prove a deliberate commission or omission which is in breach of an injunctive order or undertaking, unless the breach is casual, accidental or unintentional: Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd [1986] HCA 46; 161 CLR 98. Read the decision on the NSW Caselaw website.
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| Ali v AAI Limited [2016] NSWCA 110
16 May 2016 - Basten, Leeming and Simpson JJA
Justice Basten, with whom Leeming and Simpson JJA agreed, discussed the administrative law concept of “irrelevant consideration” (at [63]–[67], footnotes omitted):
[64] The language of “irrelevant consideration” is used to refer to factors which are extraneous to the proper exercise of the power, so that to take them into account will constitute legal error. A clear example of an express prohibition may be found in equal opportunity legislation which makes it unlawful to take race into account in public decision-making.
[65] Although the conventional statements of the principle refer to relevant and irrelevant “considerations”, other language is sometimes used. Further, there is a second principle that extends beyond “considerations”. In Minister for Aboriginal Affairs v Peko-Wallsend Ltd, the Minister considering making a grant of land under the Aboriginal Land Rights (Northern Territory) Act 1976 (Cth), was required to take into account detriment to an existing landholder, identified by the Aboriginal Land Commissioner. The issue was whether the requirement extended to further information supplied directly to the Minister. As explained by Mason J:
“It would be a strange result indeed to hold that the Minister is entitled to ignore material of which he has actual or constructive knowledge and which may have a direct bearing on the justice of making the land grant, and to proceed instead on the basis of material that may be incomplete, inaccurate or misleading. In one sense this conclusion may be seen as an application of the general principle that an administrative decision-maker is required to make his decision on the basis of material available to him at the time the decision is made. But that principle is itself a reflection of the fact that there may be found in the subject matter, scope and purpose of nearly every statute conferring power to make an administrative decision an implication that the decision is to be made on the basis of the most current material available to the decision-maker.”
[66] It is in such a context that reference is made to ignoring “relevant material”. A statutory obligation to address the substance of an applicant’s case will readily be implied, as will an obligation to consider material relied on by an applicant which is, on its face, relevant and significant, and is credible or uncontested. Failure to do so may involve a constructive failure to exercise the function conferred by the statute.
Read the decision on the NSW Caselaw website. |
| Daley v SAS Trustee Corporation [2016] NSWCA 111
16 May 2016 – McColl, Basten and Ward JJA
Justice Basten considered the meaning and effect of facultative provisions, including s 142J of the District Court Act, which, eg, require the court reach its decision “on the real merits and justice of the case” and provide that the court is “not bound to follow strict legal precedent” (see [98]–[107]). At [104] Basten JA summarised some of the authorities on the operation of facultative provisions in tribunals:
[104] Such provisions may operate differently with respect to state and federal tribunals. Nevertheless, in Minister for Immigration and Multicultural Affairs v Eshetu, Gleeson CJ and McHugh J noted that such provisions were “intended to be facultative, not restrictive” and said that their purpose was “to free tribunals, at least to some degree, from constraints otherwise applicable to courts of law, and regarded as inappropriate to tribunals.” A provision of the Commonwealth Electoral Act 1918 (Cth) under which a justice of the High Court sits as the Court of Disputed Returns, and “shall be guided by the substantial merits and good conscience of each case”, was said in Sue v Hill, to be “not inimical to the exercise of the judicial power of the Commonwealth” and as not exonerating the court from “the application of substantive rules of law” and “the rules of procedural fairness”.
Justice Basten also considered a number of authorities on statutory construction and whether a particular matter is a question of law or question of fact, making the following observations on Agfa-Gevaert and Project Blue Sky (at [116]–[117], footnotes omitted):
[116] It may be seen that Agfa-Gevaert loosened the underpinnings of the traditional canons for distinguishing questions of fact and law in statutory interpretation; it did not, however, dislodge them. Rather, it provided two indicators as to future developments. First, as noted above, “rigid rules” have been rejected. Secondly, the observation of Lord Hoffmann in R v Brown, that the building blocks of meaning are sentences, not individual words, is generally accepted.
[117] Project Blue Sky dealt with a similar problem from a different angle, but adopting a consistent approach. Whether the decision of a statutory authority was invalid or not raised a similar question to that raised by asking did the authority err in law. (Invalidity will usually be the product of legal error.) The approach rejected involved characterising statutory requirements as mandatory or directory. The new approach required an holistic consideration of the legislation to find an unexpressed intention as to the consequence of non-compliance with the statutory requirement.
Read the decision on the NSW Caselaw website |
| Federal Court of Australia
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| AMF15 v Minister for Immigration and Border Protection [2016] FCAFC 68
20 May 2016 – Flick, Griffiths and Perry JJ
The Full Federal Court summarised the principles relating to the courts’ duty to unrepresented litigants (at [309]–[316]). The principles include (citations omitted):
[309] In the context of an unrepresented litigant, the duty requires that a person does not suffer a disadvantage from exercising the recognised right of a litigant to be self-represented… In MacPherson Mason J, at [31] 534, noted that:
A trial in which a judge allows an accused to remain in ignorance of a fundamental procedure which, if invoked, may prove to be advantageous to him, can hardly be labelled as ‘fair’.
[310 However, the court's duty is not solely to the unrepresented litigant. The obligation is to ensure a fair trial for all parties. For this reason, the duty is usually stated in terms that require that the impartial function of the judge is preserved, whilst also requiring the judge to intervene where necessary to ensure the trial is fair and just...
[311] Insofar as the duty relates specifically to an unrepresented party, it has been said that a trial judge has an obligation to take appropriate steps to ensure that the unrepresented litigant has sufficient information about the practice and procedure of the court, so far as is reasonably practicable for the purpose of ensuring a fair trial. The application of that principle will vary depending upon the circumstances of the case…
[312] Although the duty of a trial judge to assist an unrepresented litigant is cast in active terms, it does not extend to advising the accused as to how his or her rights should be exercised… Rather, the judge has to put the unrepresented litigant in the position of being able to make an effective choice, a duty which applies notwithstanding the adversarial character of a criminal trial: McPherson per Mason J at 534. The duty is the same in a civil proceeding, with such modifications as are called for to take account of civil procedures. However, it is not the function of the court to give judicial advice to, or conduct the case on behalf of, the unrepresented litigant…
Read the decision on the Federal Court of Australia website |
| Supreme Court of New South Wales
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| M v Mental Health Review Tribunal and Others (No 2) [2016] NSWSC 572
6 May 2016 – Lindsay J
The plaintiff, M, was a “protected person” within the meaning of s 38 of the Trustee and Guardian Act 2009 (NSW). A protected person is not entitled, without the appointment of a tutor, to sue or be sued in civil proceedings in the Court: Uniform Civil Procedure Rules 2005 NSW, rule 7.14 ([6]). It appeared M “instituted, and maintained, civil proceedings in a manner suggestive of concealment of his involvement in the proceedings from the NSW Trustee (his financial manager), and concealment from the Court and affected parties of his status as a ‘protected person’” ([5]). Justice Lindsay observed (at [30]–[46]) that the case raised questions about the unsupervised involvement in court proceedings of persons incapable of managing their own affairs, including:
[38] … delays in disclosure of the plaintiff’s status as a protected person to the Court, and to parties affected by his litigious bent, might reasonably be thought to raise questions about: (a) whether any (and, if so, what) administrative arrangements need to be reviewed for the purpose of ensuring that different arms of government responsible for administering the State’s protective functions are kept informed, in a timely manner, of steps taken in performance of those functions vis a vis litigants in person; (b) whether there needs to be some means by which parties to proceedings brought by a litigant in person can take steps to ascertain whether their adversary is a “protected person”; and (c) whether the Court’s commitment to open justice needs (notwithstanding statutory imperatives for confidentiality such as those found in the Mental Health Act 2007 NSW, section 162 and the Guardianship Act 1987, section 101) to be qualified, in operation, so as to ensure sufficient transparency to avoid, or deal with, abuses of the process of the Court.
Read the decision on the NSW Caselaw website.
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| Supreme Court of Victoria
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| Eureka Operations Pty Ltd v Viva Energy Australia Ltd [2016] VSCA 95
10 May 2016 – Santamaria, Ferguson and McLeish JJA
“The Shell Company of Australia Ltd [later Viva Energy Australia Ltd (Viva)] and Coles Supermarkets Australia Pty Ltd [by its vehicle Eureka Operations Pty Ltd (Eureka)], along with other related companies, entered into an ‘Alliance Agreement’ for the operation of service stations and associated convenience stores” (at [1]). Clause 2.7 of each Site Lease (leases between Viva and Eureka governing the relationship in respect of each individual site) provided:
Granting of further licences or leases
After the date of this Lease and until the Lease comes to an end, [Viva] may not grant to any person any right to use or occupy any part of the Leased Area (other than a further term in accordance with a Third Party Interest) or to use the Fuel Equipment except with [Eureka]’s prior written consent.
Viva proposed to grant concurrent leases, to which Eureka objected. In the Court of Appeal, Eureka submitted both that “there was an ‘ordinary meaning’ of cl 2.7, and that considerations of context and purpose were equivocal at best and certainly insufficient to warrant departure from that ordinary meaning” and “the language of cl 2.7 was unambiguous” (at [44]). In rejecting Eureka’s submissions, the Court of Appeal held (at [45]–[47], footnotes omitted):
[45] To approach the interpretation of a contract in this manner risks failing to apply the principles set [in Electricity Generation Corporation v Woodside Energy Ltd]. In the first place, the objective approach to contractual interpretation requires reference to the ‘text, context (the entire text of the contract as well as any contract, document or statutory provision referred to in the text of the contract) and purpose’. It follows that the meaning of a word or clause cannot be determined by reference to its own text alone. As such, resort to the ‘ordinary meaning’ of the word or clause can be no more than a starting point in a process which in every case requires the reader of the contract to look further to context and purpose. Nor is it necessary that there be ambiguity, however understood, before undertaking that further process. Context (as defined above) and purpose are always relevant, no matter how clear the ‘ordinary meaning’ is said to be.
[46] Secondly, the objective approach calls for the relevant provision to be interpreted as a reasonable businessperson would have understood it, which is revealed by considering the language used in the contract, the circumstances the contract addresses and the commercial purpose or objects to be secured by it, each of which is ordinarily able to be identified by reference to the contract alone. Again, the notion of ‘ordinary meaning’, while plainly a relevant aspect of this inquiry, cannot serve to foreclose consideration of these other elements. It is always possible that, despite the ‘ordinary meaning’, reference to context, the circumstances the contract addresses and its commercial purpose or objects will show that a reasonable businessperson would have understood a different meaning to apply. It is inherent in the test of the reasonable businessperson that he or she must be taken to be aware of more than just the text of the provision being construed.
[47] Construction in the present case should therefore be approached on the basis that the ‘ordinary meaning’ of the relevant provisions is only one aspect of the wider inquiry, and that there is no need to establish any ambiguity arising from the text before undertaking that inquiry. It may be that no reason emerges to depart from the ordinary meaning of the words used. But the whole inquiry must be undertaken, whether or not the ordinary meaning can be described as unambiguous when read in isolation. Establishing ambiguity is not a threshold to be met before completing the inquiry.
Read the decision on the AustLII website
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| Trombone Investments Pty Ltd v TBT (Victoria) Pty Ltd [2016] VSCA 108
16 May 2016 – Ashley, Redlich and Tate JJA
Trombone sought leave to appeal from an order of Judge Jenkins of the Victorian Civil and Administrative Tribunal (VCAT) which dismissed Trombone’s application for reconstitution of VCAT. The application for reconstitution was an application that VCAT’s Senior Member Riegler be disqualified from hearing a tenancy dispute (to which Trombone was a party) on the ground of apprehended bias. The apprehended bias was said to arise from the Senior Member’s decision to quash three summonses; in an appeal from that decision to the Supreme Court, the Supreme Court found that Senior Member Riegler “had taken an unduly restrictive approach to the identification of issues that might be relevant in the proceeding.”
The Court of Appeal held that the reasons given for dismissing the reconstitution application misapprehended the test for apprehended bias and imposed at a level of stringency beyond that required by the High Court:
[13] It is apparent that in her application of the test Judge Jenkins shifted from the test based upon the double ‘might’ to a test of greater stringency, namely, whether a fair-minded lay observer might reasonably consider that Senior Member Riegler would be incapable of bringing an impartial mind to the matter.
Further, Judge Jenkins failed to focus upon the errors in the reasoning of the Senior Member. The Court of Appeal said at [18] (footnotes omitted):
[18] We consider that had the test from Ebner been properly applied, it would have been satisfied. We consider that, given the extensive observations made by Senior Member Riegler with respect to the allegation of unconscionability and its potential irrelevance to the legitimate issues for determination … a lay observer might reasonably apprehend that he might not bring an impartial mind to the resolution of the tenancy dispute.
[19] Furthermore, there was little, if any, consideration given by Judge Jenkins to the need to ensure that justice is not only done, but is seen to be done. Clearly, a proper way of ensuring that justice was seen to be done in circumstances where Senior Member Riegler had expressed detailed views about claims made in the proceeding, and about the limited scope of that proceeding, was for an order to be made for the reconstitution of the Tribunal.
Read the decision on the AustLII website.
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| Alphater Consulting Engineers Pty Ltd v Rozman [2016] VSCA 111
18 May 2016 – Santamaria, Beach and McLeish JJA
Pursuant to a dispute resolution agreement between Alphater and Mr Rozman (and others), an independent expert valuer was jointly appointed by the parties to value a share in a business. Alphater subsequently unilaterally and wrongfully terminated the expert’s retainer. This was treated as repudiation by the respondents, who then terminated the contract. The Court summarised the principles relating to repudiation as follows (at [62]):
[62] [R]epudiation occurs when a party evinces an intention no longer to be bound by the contract, or to fulfil it only in a manner substantially inconsistent with that party’s obligations. An actual intention to repudiate is not necessary. The issue is resolved objectively by reference to the effect that the breaching party’s conduct would have on a reasonable person. Further, as has been said many times before, repudiation is a serious matter and is not lightly to be found.
Read the decision on the AustLII website.
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| Supreme Court of Western Australia
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| Servcorp WA Pty Ltd v Perron Investments Pty Ltd [2016] WASCA 79
18 May 2016 – Martin CJ, Buss and Murphy JJA
In an appeal concerning the proper construction and application of a rent review provision in a lease agreement for commercial premises, the Court of Appeal (WA) summarised the legal principles relating to implied terms, including the different forms of implied term (at [66]):
[66] A number of different forms of implied term are well established. They include:
(a) A term deduced by implication or interpretation from the express terms of the contract. See Marcus Clark (Victoria) Ltd v Brown [1928] HCA 12; (1928) 40 CLR 540, 553 - 554 (Higgins J); Vickery v Waitaki International Ltd [1992] 2 NZLR 58, 64 (Cooke P, Richardson & Gault JJ agreeing); Carlton & United Breweries Ltd v Tooth & Co Ltd (1985) 6 IPR 319, 320 (Hodgson J); Brambles Holdings Ltd v Bathurst City Council [2001] NSWCA 61; (2001) 53 NSWLR 153 [28] (Heydon JA).
(b) A term which is a legal incident of a particular class of contract. See Liverpool City Council v Irwin [1977] AC 239, 254 - 255 (Lord Wilberforce); Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337, 345 - 346 (Mason J, Stephen & Wilson JJ relevantly agreeing); Byrne v Australian Airlines Ltd [1995] HCA 24; (1995) 185 CLR 410, 448 - 452 (McHugh & Gummow JJ).
(c) A term specifically implied ad hoc in a particular contract. See BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266, 283 (Lord Simon of Glaisdale, Viscount Dilhorne & Lord Keith of Kinkel); Codelfa (345 - 347). This term is invariably described as an implied term necessary to give business efficacy to a particular contract. It is implied in fact and based upon the presumed intention of the parties.
The Court of Appeal also summarised and discussed the authorities on the implied duty to cooperate (at [67], [75]–[88]), stating (among other things) that:
[67] A term generally applicable to every contract, and arising by a process of construction applied to the express terms of the contract, that each party will do all that is reasonably necessary to secure performance of the contract, including enabling the other party to have the benefit of the contract, is also well established. See Mackay v Dick (1881) 6 App Cas 251, 263 (Lord Blackburn); Butt v M'Donald (1896) 7 QLJ 68, 70 - 71 (Griffith CJ, Cooper & Power JJ agreeing); Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd [1979] HCA 51; (1979) 144 CLR 596, 607 - 608 (Mason J, Gibbs, Stephen & Aickin JJ agreeing). This term is invariably described as an implied duty to cooperate.
[82] The implied duty to cooperate does not, however, rise above the promises made by the parties to the contract. In other words, the duty 'cannot over-ride the express provisions of the contract': Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349, 368 (Sheller JA, Powell and Beazley JJA agreeing).
Read the decision on the AustLII website.
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