Recent Cases

Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185 (26 July 2019) (Bell P at [1]; Basten JA at [154]; Emmett AJA [178])


CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates – later date was date on which one party acquired a right to terminate if agreement not reached – whether earlier or later date relevant date for commencement

CONTRACTS – termination – purported termination pursuant to contractual right – whether party had elected to affirm the contract – whether right to terminate exercised within a reasonable time – meaning of reasonable time – point at which reasonable time to be assessed – whether any difference between a reasonable time to exercise a right and a reasonable time to perform an obligation – Ballas v Theophilos (No 2) (1957) 98 CLR 193 considered

CONTRACTS – ship construction – interpretation –parties entered into an original contract and later into a second contract – where original contract entitled one party to liquidated damages – where second contract contained a release clause – whether, if second contract had been validly terminated, the release in the second contract would still be effective – where clause in second contract set “all” fees until a particular date at a certain rate – whether “all” captured fees from commencement of original contract or second contract