Update 16june 2014

COMMERCIAL CONTRACT CLAUSES

J Thomson, L Warnick, K Martin

Highlights

  • The following chapters have been updatedwith new commentary and cases:
  • Indemnity clauses;
  • Consent clauses;
  • Essential and non-essential time stipulations;
  • Expert and alternative dispute resolution clauses;
  • Exclusion of liability and exclusive remedy clauses; and
  • Consequential loss clauses.

COMMENTARY

The following chapters have been updated by Joshua Thomson:

  • Indemnity clauses;
  • Consent clauses;
  • Essential and non-essential time stipulations;
  • Expert and alternative dispute resolution clauses;
  • Exclusion of liability and exclusive remedy clauses; and
  • Consequential loss clauses.

Some of the key additions are outlined below.

[30200] Erect Safe

Commentary has been added discussing the decision in Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008)72 NSWLR 1 on indemnity and insurance clauses,where in the absence of express words, the obligation under an insurance clause in a contract which is provided to support an indemnity clause will not require a subcontractor to maintain insurance against loss occasioned by the head contractor’s negligence.

[35450] Purpose of consent power

Commentary has been added discussing the exercising of consent power and the unreasonably withholding of consent in St Barbara Ltd v Hockley (No 2) [2013] WASC 358andFulham Partners LLC v National Australia Bank Ltd [2013] NSWCA 296 at [47]-[49].

[35470] Commercial Self Interest

This new commentary paragraph has been added regarding the decision inBarclays Bank plc v Unicredit Bank AG [2014] EWCA Civ 302.

[35510] Reasonable process

Commentary has been added discussing express requirement of reasonableness in Noranda Australia Ltd v Lachlan Resources NL (1988) 14 NSWLR 1 and Barclays Bank plc v Unicredit Bank AG [2014] EWCA Civ 302

[65510] Other circumstances

Commentary has been added discussing Samarenko v Dawn Hill House Ltd [2013] Ch 36; (2012) 2 All ER 476where a clause requiring payment of a deposit within a particular time, in an ordinary sale of land contract, has been strictly construed having regard to the nature of a deposit.

[80130] Non-mandatory clauses

Commentary has been added discussing dispute resolution provisions and uncertain clauses inSulamerica SA v EnesaEngelharia SA [2012] EWCA Civ 638; [2013] 1 WLR 102 at [36]-[37] andTang Chung Wah v Grant Thornton International Ltd [2012] EWHC 3198; [2013] 1 All ER (Comm) 1226 at [53].

[120340] Pacific Hydro

This new commentary paragraphhas been added to discuss the proper construction of a consequential loss clause in relation to Regional Power Corporation v Pacific Hydro Group Two Pty Ltd (No 2) [2013] WASC 356, and the difference between Environmental Systems Pty Ltd v Peerless Holdings Pty Ltd [2008] VSCA 26 (Peerless), and a number of English decisions.

Commercial Contract Clauses1