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Construction Goes Off the Rails

Journal of Contract Law, Vol. 22, No. 3, pp. 287-299, 2006

Sydney Law School Research Paper No. 10/135

12 Pages Posted: 2 Dec 2010  

Wayne Courtney

The University of Sydney Law School

Ben Curtin

The University of Sydney

Date Written: December 1, 2010

Abstract

Parties to a contract may agree to restrict or qualify the right of one party to terminate for another’s breach or repudiation. A typical clause may require notice to the defaulting party, and an opportunity to rectify the default or show cause why the right to terminate ought not be exercised. Other clauses may require the right to terminate to be exercised within a limited period of time.

In Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd (2005) 218 ALR 1; [2005] FCAFC 49, the Full Federal Court considered the effect of a clause restricting the right to terminate. This article examines critically that decision and the principles governing the operation of such clauses. It suggests that there are several flaws in the reasoning of the Full Court.

Keywords: Contract, Breach of contract, Termination

JEL Classification: K10, K12, K30

Suggested Citation

Courtney, Wayne and Curtin, Ben, Construction Goes Off the Rails (December 1, 2010). Journal of Contract Law, Vol. 22, No. 3, pp. 287-299, 2006; Sydney Law School Research Paper No. 10/135. Available at SSRN: https://ssrn.com/abstract=1718205

Wayne Courtney (Contact Author)

The University of Sydney Law School ( email )

New Law Building, F10
The University of Sydney
Sydney, NSW 2006
Australia

Ben Curtin

The University of Sydney ( email )

University of Sydney
Sydney, NC NSW 2006
Australia

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