The Construction and Performance of Commercial Contracts 3rd Edition

The third edition of this work analyses a number of commonly found boilerplate clauses in commercial contracts and illustrates, through case law, how the various forms of these clauses have been judicially interpreted. At the conclusion of each chapter, from the previous analysis, the book provides recommendations for the practitioner as to the issues that should be taken into account when drafting such clauses. The emphasis of the book is upon the application of the principles of contract directly in relation to the construction of contracts and is not merely a recitation of those principles. A number of recent cases have been added to this edition to illustrate points of construction. Several deserve specific mention:

Australian Securities and Investments Commission v Kobelt (2019) 267 CLR 1

Good Living Company Pty Ltd v Kingsmede Pty Ltd (2021) 284 FCR 424 (FCAFC) (statutory unconscionability)

Australian Securities and Investments Commission v Bendigo and Adelaide Bank Limited [2020] FCA 716 (analysis of certain unfair contractual terms)

Seymour Whyte Constructions Pty Ltd v Ostwald Bros Pty Ltd (in liq) (2019) 99 NSWLR 317 (NSWCA) (rectification of contract principles restated)

Adaz Nominees Pty Ltd v Castleway Pty Ltd [2020] VSCA 301 (implied term of cooperation)

Macquarie International Health Clinic Pty Ltd v Sydney Local Health District (2020) 19 BPR 40,463; [2020] NSWCA 161 (implication of term of good faith)

Pittmore Pty Ltd v Chan; Chan v Tan (2020) 106 NSWLR 62 (NSWCA) (dealing with absurdity in construction)

JPA Finance Pty Ltd v Gordon Nominees Pty Ltd (2019) 58 VR 393 (VSCA) (termination notices)

Kay v Playup Australia Pty Ltd [2020] NSWCA 33 (penalty clauses)

Advanced National Services Pty Ltd v Daintree Contractors Pty Ltd [2019] NSWCA 270 (consequences of assignment of contractual rights without consent required)

Fu Tian Fortune Pty Ltd v Park Cho Pty Ltd [2018] NSWCA 282 (what constitutes ovation)

Compass Marinas Australia Pty Ltd v Queensland (2021) 9 QR 703 (condition precedent to calling upon guarantee)

Reid v Commonwealth Bank of Australia [2022] NSWCA 134 (limits to deed of release of guarantee)

Argyle Lending Pty Ltd v Lantouris [2022] VSCA 60 (interaction of indemnity with concurrent guarantee)

Masters Home Improvement Australia Pty Ltd (formerly Shellbelt Pty Ltd) v North East Solution Pty Ltd (2017) 372 ALR 440 (VSCA) (enforcement of dispute resolution clause)

Joshan v Pizza Pan Group Pty Ltd (2021) 106 NSWLR 104 (NSWCA) (exclusive jurisdiction clauses)

In addition, the book goes beyond the bounds of the common law of contract and also examines how the application of relevant statute law such as the Australian Consumer Law provisions relating to unconscionability, statutory guarantees and unfair terms impact the construction of certain contracts. Significant recent amendments to the Australian Consumer Law on Unfair Contracts affecting construction have been extensively analysed.