Contracts and commercial disputes

The Victorian Court of Appeal held that, on the expert determination deed before it, an expert asked to determine whether a landlord had achieved practical completion "in accordance with clause 9" of an agreement for lease had to decide whether practical completion was in fact achieved, and could not stop at whether the architect's certificate had been properly issued; because the expert answered the wrong question, his determination did not bind the parties.

Court of Appeal, Supreme Court of Victoria, 3 December 2025

Granting leave to appeal but dismissing the appeal, the New South Wales Court of Appeal held that, read as a whole, clause 42.10 of a building contract kept an expert's determination in effect unless and until changed under the clause 42.11 negotiation procedure, so it remained binding once that procedure was, as was not disputed, exhausted without resolving the dispute or agreeing a procedure.

Court of Appeal, Supreme Court of New South Wales, 27 May 2011

The Supreme Court of Victoria (Hargrave J) found serious questions to be tried on a tenant's claim to hold a purchaser of its leased premises to a restraint of trade clause, but the tenant's interlocutory injunction application failed on the balance of convenience.

Supreme Court of Victoria, 24 May 2006

In an interlocutory ruling, the Supreme Court of Victoria held that the balance of convenience favoured continuing an injunction until trial against a supplier seeking to end a distributorship for a missed turnover target, leaving orders to be settled.

Supreme Court of Victoria, 13 May 2005

In the Supreme Court of Victoria, Kaye J refused a club an interlocutory injunction restraining Tattersalls from removing provisional gaming machines, holding that because the injunction would in effect give final relief on disputed affidavit evidence, the club needed a strong case or a balance of convenience strongly in its favour, and it had neither [20], [31], [49].

Supreme Court of Victoria, 22 February 2005

Ruling on an application under the Jurisdiction of Courts (Cross-vesting) Act 1987 (Vic) to transfer a contract proceeding, Hollingworth J of Victoria's Supreme Court found the Australian Capital Territory (ACT) "clearly the more appropriate jurisdiction" and proposed to order the proceeding's transfer to the ACT's Supreme Court.

Supreme Court of Victoria, 23 March 2006

The Supreme Court of Victoria (Hargrave J) found serious questions to be tried on a tenant's claim to hold a purchaser of its leased premises to a restraint of trade clause, but the tenant's interlocutory injunction application failed on the balance of convenience.

Supreme Court of Victoria, 24 May 2006

In the Common Law Division of the Supreme Court of Victoria, Gillard J held that a covenant on the sale of an accountancy practice that the vendors would not at any time act for clients of the preceding three years was valid although it had no time limit, and that the vendors, having affirmed the agreement after the purchaser's breach of an essential term, remained bound by it [79], [99], [101], [124].

Supreme Court of Victoria, 30 June 2005

On an appeal from a magistrate under section 109 of the Magistrates' Court Act 1989 (Vic), the Supreme Court of Victoria (Bell J) held the magistrate did not err in law in dismissing a landlord's claim under the Fair Trading Act 1985 (Vic): she correctly characterised the tenant's brother's assurance as one of best endeavours that did not mislead or deceive; though she erred in not applying section 10A of that Act in her primary analysis, she correctly held in the alternative that reasonable grounds were shown; the appeal was dismissed with costs.

Supreme Court of Victoria, 10 October 2007

The High Court, by four Justices to one, dismissed appeals by the Australian Competition and Consumer Commission (the ACCC) in a secondary boycott case under the Competition and Consumer Act 2010 (Cth). Gageler CJ, Gleeson and Beech-Jones JJ held that a person who gives in to a threat of industrial action by doing what is demanded, without communicating to the person making the threat, expressly or tacitly, a commitment to do so, has not thereby arrived at an understanding with the person making the threat for the purposes of sections 45E(3) and 45EA. Edelman J agreed in the result because the head contractor, J Hutchinson Pty Ltd (Hutchinson), communicated no assent to the union and the ACCC ran no case that the union had dispensed with the need for it. Steward J dissented.

High Court of Australia, 2 April 2025

The Victorian Court of Appeal granted leave to appeal and set aside a non-party costs order against a builder's director, holding that he was not a "real party" to the builder's contribution claim against a co-defendant architect.

Court of Appeal, Supreme Court of Victoria, 28 February 2025

The High Court unanimously dismissed an appeal about whether process of a State court could validly be served in New Zealand under the Trans-Tasman Proceedings Act 2010 (Cth) (the TTPA). In joint reasons, Kiefel CJ, Gageler, Gleeson and Jagot JJ held that sections 9 and 10 of the TTPA validly apply to an initiating document issued by a State court in a civil proceeding, whether the proceeding is in State or federal jurisdiction [6], [38]. Gordon, Edelman and Steward JJ agreed that the appeal should be dismissed and gave separate reasons.

High Court of Australia, 8 August 2023

The prevention principle applies only through a breach of the contract, not as a free-standing rule, and the implied duty to cooperate can be breached by conduct that hinders without making performance impossible; but on the facts a letter asserting a wrong construction of the contract was not a breach of that duty, and did not prevent the other party meeting a time condition.

Court of Appeal, Supreme Court of Victoria, 24 March 2021

In March 2017 the New South Wales Court of Appeal dismissed a builder's appeal from a judgment for $11,612,013.53 for defective concrete pavements at a container terminal at Port Botany. Bathurst CJ, with whom Beazley P and Gleeson JA agreed, held that a deed assigning to a later lessee all the benefit of the builder's warranties passed the right to sue for breaches that had already occurred. The assignee's knowledge of cracking when it acquired the terminal did not mean it suffered no loss. It could recover the cost of replacing the pavement, apart from areas under the warehouse awnings, without any allowance for betterment. The order for indemnity costs at trial was also upheld.

Court of Appeal, Supreme Court of New South Wales, 1 March 2017

In the Admiralty List of the Supreme Court of Victoria, Byrne J held that a lump sum transport contract was not converted into a contract to reimburse the contractor's subcontract costs, whether by construction, implied term, later agreement or estoppel by convention, so that any price adjustment still in dispute depended on the contract's terms, notably its variation clause [14], [18], [54], [61].

Supreme Court of Victoria, 6 July 2007

In the Commercial and Equity Division of the Supreme Court of Victoria, Hansen J granted an interlocutory injunction restraining a head contractor from relying on its notice terminating a defence procurement subcontract for convenience, finding that the lower risk of injustice favoured an injunction on undertakings as to damages where a serious question was conceded as to whether an implied term of good faith and fair dealing qualified the power and was breached [49], [72], [101].

Supreme Court of Victoria, 15 June 2007

In the Commercial List of the Supreme Court of Victoria, Hargrave J gave judgment for an airline under a frequent flyer participation agreement, holding that the agreement contained no express or implied term obliging the airline to keep its program running, that the card issuer's payment obligation arose on the crediting of points and that their later worthlessness was no total failure of consideration [54], [107], [133], [183], [239], [242].

Supreme Court of Victoria, 30 April 2007

In the Supreme Court of Victoria, Hargrave J held that a mediated term of settlement requiring an owner to pay unpaid amounts due under payment certificates obliged it to pay the sum it had deducted from a certificate for liquidated damages, because the settlement released that claim and payments under the certificates were on account [24], [25], [27], [29], [30].

Supreme Court of Victoria, 15 February 2007

In the Supreme Court of Victoria, Hollingworth J held that service of a writ on a Philippine company outside Australia should be set aside because the indorsement required by rule 7.02 identified the paragraphs of rule 7.01 relied on but stated no supporting facts, a defect not cured by a statement of claim served afterwards, and declined to dispense with the requirement [46], [48], [53].

Supreme Court of Victoria, 4 December 2006

In the Supreme Court of Victoria, at a trial confined to liability, Whelan J held that a vendor's written income and return estimates for ski lodge suites were misleading and deceptive in contravention of the Trade Practices Act, because they did not bear a reasonable relationship as estimates to actual historic performance [8], [92], [110].

Supreme Court of Victoria, 10 October 2006

In the Supreme Court of Victoria, at a separate trial of liability, Gillard J held that a train operator proved that a track buckle, not a dislodged brake beam, caused a derailment, so that the network manager was liable to it in contract and under an indemnity clause that applied between the parties as well as in negligence, its liability extending to its maintenance contractor under a non-delegable duty, and that the manager's counterclaim must be dismissed [1], [140], [280], [287], [288], [291], [292].

Supreme Court of Victoria, 27 September 2006

In the Commercial List of the Supreme Court of Victoria, Hargrave J held that a buyer of a racing car under a contract subject to finance, which fixed no time for paying the instalment to be financed, was not excused from completing because he stopped seeking finance well before a reasonable time expired and did not prove that further efforts would have been useless [86], [94], [112], [115], [119].

Supreme Court of Victoria, 18 September 2006

In the Commercial List of the Supreme Court of Victoria, Hargrave J held that the pre-emptive rights clause in a mining joint venture agreement, triggered when a venturer ceased to be a subsidiary of another corporation, was not confined to its immediate holding company but reached a company further up the corporate tree linked by a chain of majority or 100 per cent shareholdings [46].

Supreme Court of Victoria, 8 September 2006

In the Common Law Division of the Supreme Court of Victoria, Bell J dismissed an appeal on a question of law from a magistrate, holding the Fair Trading Act's deeming provision for company officers did not extend to civil proceedings, but that the orders against an officer of the companies stood because he was directly liable for conduct in his employer's trade or commerce as more than a mere conduit [189], [190].

Supreme Court of Victoria, 4 August 2006

After a trial on liability only, Whelan J in the Commercial List of the Supreme Court of Victoria held that purchasers of land on which a retirement village was to be built, whose stated grounds of termination failed, validly terminated because the vendor had repudiated the contract and, further, had committed serious and irremediable breaches of intermediate terms, so that no notice under condition 5 of Table A was needed [15], [465], [605].

Supreme Court of Victoria, 3 August 2006

In the Commercial and Equity Division of the Supreme Court of Victoria, Whelan J held, following Equuscorp, that a related financier which settled a film investment loan with a counter cheque endorsed back to it the same day had still made the loan, and was unable to conclude that the loan agreements were a sham, so the borrower's and guarantor's defences failed [66], [79], [80], [81].

Supreme Court of Victoria, 3 August 2006

In the Supreme Court of Victoria, Byrne J held that a company which bought a business's plant, including conveyor chains that were defective when supplied but whose defects appeared after the sale, could recover its own losses from the supplier as assignee of the vendor's contract claim, because the vendor's right of action arose on delivery and passed under a later deed of assignment, it not being suggested that the purchaser's losses were greater than the vendor's would have been [90], [95], [97].

Supreme Court of Victoria, 28 July 2006

In the Commercial and Equity Division of the Supreme Court of Victoria, Dodds-Streeton J held after a trial that a franchisee's claims against its franchisor's termination of the franchise should be dismissed, finding no breach of an implied term of good faith on any articulation of it and leaving undecided whether such a term was implied [214], [222], [223].

Supreme Court of Victoria, 21 June 2006

In the Supreme Court of Victoria, Mandie J allowed an appeal, by leave, on questions of law under section 148 of the Victorian Civil and Administrative Tribunal Act 1998 from VCAT orders in two small claims under Part 9 of the Fair Trading Act 1999, holding that VCAT's oral reasons, given where no written reasons were requested, were inadequate and that this constituted or showed an error of law [1], [8], [38], [41], [42], [43].

Supreme Court of Victoria, 10 May 2006

In the Common Law Division of the Supreme Court of Victoria, Dodds-Streeton J dismissed a former dealer's claim that statements in a comic skit at a dealers' conference, announcing that ex-rental copiers could be bought for $1, were a unilateral contractual offer, holding on the case pleaded that they lacked the requisite certainty and specified no act as consideration [182], [183], [184], [193].

Supreme Court of Victoria, 16 February 2006

In the Supreme Court of Victoria, Bongiorno J found that a magistrate who considered he had no power to order discovery of particular categories of documents fell into jurisdictional error, but refused judicial review in his discretion because, as the pleadings stood, the application could properly have been dismissed on its merits [5], [8], [11], [12], [13].

Supreme Court of Victoria, 19 January 2006

In the Commercial and Equity Division of the Supreme Court of Victoria, Whelan J held that a buyer's separately tried counterclaim to rectify a business sale agreement for unilateral mistake must fail, because its negotiator understood what the clause provided and misjudged its financial consequences, so there was no relevant mistake [3], [4], [52], [53], [69].

Supreme Court of Victoria, 26 October 2005

In the Commercial and Equity Division of the Supreme Court of Victoria, Dodds-Streeton J, deciding the case finally on the balance of probabilities after the defendant elected to call no evidence, held that an Investment Agreement, read with a signed document agreeing to its principal terms, was a contract binding at once although fuller documents were to follow, under which the defendant was jointly and severally liable to repay the investment sum on the repayment date [100], [105], [107], [126], [129].

Supreme Court of Victoria, 31 August 2005

In the Commercial and Equity Division of the Supreme Court of Victoria, Dodds-Streeton J held that a third party's offer, solicited by a customer bound by a requirements supply agreement and extended in return for monthly payments by the customer representing estimated damages for its repudiation of an earlier contract with the offeror, was not an arm's length offer within the supplier's right to match clause, although the offered bottles were substantially the same as the contract products and want of good faith was not established [168], [200], [239], [244], [245].

Supreme Court of Victoria, 9 June 2005

In the Supreme Court of Victoria, on a trial of a bank's claims and of liability on the counterclaim, Byrne J held that the bank validly cancelled an overdraft under an express discretionary right, which was not displaced by rectification, implied terms or estoppel [9], [38], [40], [45], [46], [89]. Accepting that the discretion had to be exercised reasonably and in good faith, his Honour found the cancellation not vitiated, because the bank could have regard to its own legitimate commercial interests [47], [96], [99].

Supreme Court of Victoria, 8 June 2001

In the Equity Division of the Supreme Court of New South Wales, on cross notices of motion to adopt a referee's report and for declarations, Austin J construed the rent review clause in a 50-year lease as not permitting the valuer to conclude that there was no market for the hypothetical lease, although the valuer may take into account that no other bidders would be likely [18], [35], [36], [46].

Supreme Court of New South Wales, 14 March 2001

In the Supreme Court of New South Wales, Einstein J refused the defendant's application to stay proceedings pending a contractual dispute resolution procedure, holding that the mediation clause was unenforceable because it did not say how the mediator's costs were to be borne, and that the negotiation clause, not being severable from it, was also unenforceable [2], [70], [71], [174], [175].

Supreme Court of New South Wales, 1 October 1999

In the Equity Division of the Supreme Court of New South Wales, Young J dismissed a firm of solicitors' suit for specific performance of an alleged settlement, holding that oral and written exchanges between solicitors, which at most agreed the principal terms of a settlement including a deed of release, did not settle the proceedings, because the parties intended no contract until the release was delivered and exchanged and the notice of discontinuance at least signed [39], [40], [43].

Supreme Court of New South Wales, 5 March 1999