Termination of Contract

Termination of ContractThe High Court’s decision in Koompahtoo v Sanpine spelled out the circumstances which can give you a right, under the common law, to terminate a contract. You’ll have a right to seek termination of a contract if:

  1. an essential term of the contract was breached; or
  2. a non-essential term of the contract, causing substantial loss, was breached; or
  3. repudiation of the contract took place.

What Is An Essential Term Of A Contract?

Essential terms are also known as conditions; they are distinct from warranties. A term is said to be essential when it is of such importance to the party receiving a contractual promise “that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise” and the other party knows or ought know of this.

A breach of an essential term will give the innocent party a right to terminate a contract and seek to recover damages for the loss of contract.

A breach of a warranty, on the other hand, will not give you a right to terminate a contract. The available remedy is to seek recovery of damages caused by a breach of warranty (Sale of Goods Act 1896 (Qld)).

It should be noted that even though most contracts use specific language to differentiate between essential and non–essential terms, for example, by using words like ‘conditions’ and ‘warranties’, such usage is not compulsory and the meaning of terms will be determined by the Court, including the meaning of ‘conditions’ if such words were used (Wickman Machine Tool Sales Ltd. v L. Schuler A.G. [1974] AC 235, [1973] 2 All ER 39).

What is a non-essential term of a contract?

A non-essential term is a term occupying a place somewhere between a condition and a warranty (Ankar Pty Ltd v National Westminster Finance (Australia) Ltd [1987] HCA 15 at 561-2), which is why it’s often referred to as an intermediate term in common law. An intermediate, or non-essential term is classified as a term of lesser importance than an essential term because its breach doesn’t give you a right to terminate a contract but its legal value is higher than that of a warranty—a breach of warranty only gives you a right to damages caused by a warranty breach (Sanpine Pty Ltd v Koompahtoo Local Aboriginal Land Council & Ors [2006] NSWCA 291 at 176).

A contract can be terminated, however, if a breach of an intermediate term is sufficiently serious. To determine if a sufficiently serious breach of an intermediate term took place, the courts will consider:

  1. if the whole of the contract was affected by the breach so that its fulfilment is seen substantially different from that originally intended by the parties, as a result of the breach;
  2. the seriousness of the breach will depend on the consequences of the breach, both actual and foreseeable, for the innocent party;
  3. the onus of proof is on the innocent party to show the seriousness of the consequences of the breach which will be assessed by the court.

What is a repudiation of a contract?

In common law, repudiation may refer to conduct which indicates an unwillingness or an inability of a party to perform a substantial part of the contract. It can demonstrate itself in a form of an intention to no longer be bound by the contract or “to fulfil it only in a manner substantially inconsistent with the party’s obligations.”

In Freeth v Burr ((1874), L.R. 9 C.P. 208 at p. 214), Justice Keating said : “It is not a mere refusal or omission of one of the contracting parties to do something which he ought to do, that will justify the other in repudiating the contract; but there must be an absolute refusal to perform his part of the contract.”

This is an important point to keep in mind—a party does not necessarily repudiates a contract when it acts on misinterpreted terms of it (although repudiation may arise if the party persists on wrongful interpretation after the terms have been clarified and brought to their attention). If a party to a contract misinterprets its terms but the other party, instead of trying to clarify the terms, attempts to terminate the contract for repudiation, it may find itself being a repudiating party, giving the party that was acting wrongfully in the first place an opportunity to terminate the contract.

Unexpected twists like that highlight the importance of professional legal advice in the area of commercial law.

A team of experienced solicitors at Hollingworth & Spencer is available to assist your business in matters of commercial law should you require any advice.

Avoid the Pitfalls of a Commercial Lease

Commercial LeaseIf you’re thinking about entering into a commercial lease contract, you should carefully consider these important aspects of your decision to avoid frustration, unnecessary costs and hindrance to your business.

Zoning and Planning Permit

Before signing a lease, make sure your business meets zoning and planning permit requirements. Zoning regulations may impose restrictions on the type of business activity you intend to carry. If you fail to comply with the restrictions, the council may make you stop using the premises regardless of your leasing arrangements. If that wasn’t bad enough, imagine the cost of vacating the premises, especially if you have already spent money on outfitting it, and relocating elsewhere, assuming you can find something suitable on a short notice. And what are the chances of escaping the breach of contract terms in your lease with the landlord?

Lease Period

Aim to negotiate a long term commercial lease with options to renew at the end of the initial term. A long term commercial lease will facilitate the development of an established business and increase its value should you decide to sell it.

Do not rely on the assumption that the landlord will be willing, or even able, to renew a short term lease. Being a business themselves, they may have other plans for the premises once your term comes to an end or even decide to jack-up the rent seeing how valuable the property is to your business and you would, in their estimation, rather pay up than vacate and relocate.

Mortgagee’s Consent To Lease

If the property you intend to lease is mortgaged, you should (although you’re not required to by law) secure consent from the property’s mortgagee to lease the property to you. You and your landlord may be bound by a contract but no legally binding relationship exists between mortgagee and you. What it means is—should the relationship between mortgagee and your landlord end, the mortgagee will be in a position to terminate your lease and ask you to vacate the premises unless you have their consent to lease (see the Land Title Act 1994 (Qld) s66, s184).

Tenancy Interference

Ensure the lease does not allow the landlord to terminate your tenancy before the end of the lease. Watch out for refurbishment clauses in your contract—you don’t want to find out that a refurbishment clause opened a door to a full scale renovation of the premises, driving away your customers and disrupting your business.

Multiple Occupancy

If you intend to lease in a shared building, make sure the most recent plan is included with the lease. This document should show exactly what area of the building will be leased to you as well as specify your allocated car parking lots and other common areas such as entries and exits, toilets or kitchens. Without details like these a possible dispute resolution will be difficult to achieve.

Professional Advice

Overlooking even a small detail of a commercial lease can be very expensive. For an entrepreneur, it should make perfect sense to hedge against a possible loss before it happens by engaging an experienced solicitor to look after your interests and ensure every aspect of your commercial lease is properly evaluated.

Intellectual Property Protection Strategy

Intellectual PropertyHow much information do you think a humble 8GB USB stick can hold? Let’s run some numbers quickly: a typical 1,500 words Microsoft Word document should be about 20kb which means you can save roughly 400,000 documents on an 8GB stick or 3,200,000 on a 64GB one. More than three million documents on a $50 storage device. Impressive.

There was a case in the Supreme Court of New South Wales back in 2004, before USB sticks were invented, Woolworths v Olson where an injunction (a restraint of trade) was sought, and granted against Mr Olson by his then former employer Woolworths. What happened?

Mr Olson had access, through his employment, to valuable confidential information codenamed “Project Mercury” – a software system designed to transform Woolworths’ product supply procedures. Only key employees were privy to this information, and Mr Olson was one such employee. He received and accepted a job offer from Franklins, a direct Woolworths’ competitor. On the last day of his employment with Woolworths, Mr Olson sent by email several files relating to Project Mercury, from his work computer to his wife’s home computer. These were extremely confidential and valuable. Woolworths discovered the theft and took Mr Olson to court seeking a so called “restraint of trade”, that is, a court order preventing Mr Olson from being employed by Franklins for at least some time. Initially losing at the first hearing, Woolworths was granted an injunction against Mr Olson by the NSW Court of Appeal.

Mr Olson did not have a USB stick and only a handful of files, not millions, were stolen. Today though, an entire corporate database or millions of files can be stored on a small storage device and taken to the outside world without anyone noticing anything (Edward Snowden anyone?).

A Value Worth Protecting

Unlike tangible property, it’s hard to put a dollar value on intellectual property. How much does information cost? Is it worth protecting at all? Do you want to find out the hard and expensive way or would you rather prefer to safeguard your business against intellectual property loss or damage?

Even though most businesses realise that intellectual property must be protected from competitors, too many still make a mistake of assuming that there’s little can be done to protect confidential IP from its own workers. While it’s normal and indeed commendable to trust your employees, it’s equally foolish not to have some protective measures in place if things go wrong, which they do sometimes.

Here is a list of measures you can implement in your business to minimise exposure to intellectual property theft or unauthorised use:

  • Document control and management system: as an intellectual property owner, you should be able to know at any instance what kind of access and to what kind of information is available to any particular person in your organization at all times. An audit log must be maintained showing who accessed what and when that will help identify a potential breach should a suspicion arise;
  • Employee education: make sure your workers are aware of the intellectual property’s value and of the consequences of tempering with it in an unauthorised manner;
  • Email control system: keeping a log of email traffic is both preventative and investigative tool that will help safeguard your IP (recall the Woolworths case above);
  • External email control system: with web based email services such as Gmail or Hotmail, it’s easy to bypass an internal email system and send away intellectual property through one of these services – your business should be protected from that by implementing a system which will not allow access to external email services;
  • Review policy: the likelihood of IP theft will be reduced if every employee is aware that the digital trail they leave behind when they decide to move on will be reviewed to ensure no breach of intellectual property has occurred.

To help you navigate through the complexities of intellectual property issues, Hollingworth & Spencer Lawyers are available for any assistance your business may require. To quote one famous American, “By failing to prepare, you are preparing to fail.” It was true in 18th century, and still true in 21st.