The Construction and Performance of Commercial Contracts 2nd Edition

This book analyses the principles underlying the construction and application of a number of boilerplate and other clauses commonly included in commercial contracts.

The second edition fully updates all case and statute law since publication of the first edition in 2014. Several chapters have been extensively revised and updated to incorporate analysis of significant High Court and superior court decisions concerning the construction of contracts, penalties and liquidated damages, and unfair terms. This edition adopts the same chapters and internal format as the first edition so as to maintain easy reader accessibility. The authors have endeavoured to maintain the high standard of legal analysis, extensive referencing and practical relevance favourably commented upon by a reviewer of the first edition in the Australian Business Law Review.

This excellent new work provides substantial practical guidance for both general issues of construction of contracts but more particularly, to issues that arise in relation to the construction of specific clauses frequently encountered in commercial contracts.

Key Features of the New Edition

• Chapter 2 which explains the general principles and approach to contract construction has been considerably revised following the High Court’s 2015 decision in Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd and subsequent seminal cases, including Simic v New South Wales Land and Housing Corporation (2016), Ecosse Property Holdings Pty Ltd v Gee Dee Nominees Pty Ltd (2017), Victoria v Tatts Group Ltd (2016), WIN Corporation Pty Ltd v Nine Network Australia Pty Ltd (2016) and Cherry v Steele-Park (2017). The key impacts of these decisions for contract interpretation and the use of extrinsic evidence are analysed and explained in detail.
• The material in each chapter relating to unfair contract terms has been significantly revised following the amendment of the Australian Consumer Law to prohibit unfair contract terms in small business contracts. Case law since 2014 examining the interpretive approach to unfair terms and application to small business contracts has been incorporated.
• Chapter 4 on liquidated damages and penalties has been extensively rewritten to take account of the High Court decision in Paciocco v Australia and New Zealand Banking Group (2016) with analysis of further case law and commentaries that have applied the principles in Andrews v Australia and New Zealand Banking Group Limited.
• The commentary on consumer guarantees has been updated to incorporate an analysis of the Federal Court decision in Valve Corporation v Australian Competition and Consumer Commission (2017) and a more extensive analysis of proportionate liability.
• Chapter 12 on notices has been extensively revised particularly taking into account the increasing body of case law about the sending and receipt of notices by electronic communication.