The implication of a term of good faith in commercial leases

Much has been written in the past decade on the subject of the implication of a term of good faith in contracts in Australia, particularly since the judgment Priestley JA in Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234. Except for an early article by Rachael Mulheron, 'Good Faith and Commercial Leases: New Opportunities for the Tenant' (1996) 4 APLJ 223, very little else has been written with respect to the possible application of the doctrine to the commercial leases.With the advent of two later New South Wales Supreme Court decisions Alcatel Australia Ltd v Scarcella (1998) 44 NSWLR 349 and, more recently, Advance Fitness v Bondi Diggers [1999] NSWSC 264, the question of the application of the doctrine in the commercial leasing context has been examined. This article briefly considers the nature and substance of the doctrine against the background of the relationship of lessor and lessee and examines in some depth the Australian decisions on commercial leases where it has been sought, unsuccessfully, to apply the doctrine. The article concludes by suggesting that as a standard commercial lease usually covers the field of agreement between lessor and lessee and as a lessee has a high degree of statutory protection derived from equitable principles, there may be little room for the operation of the doctrine in this legal environment.

The implication of a term of good faith in commercial leases — A brief response

By way of response to Professor Duncan's article,1 this article examines the theoretical basis for the implication of contractual terms, particularly the implication of a term at law. In this regard the recent decision of Barrett J in Overlook v Foxtel [2002] NSWSC 17 is considered, to the extent that it provides guidance concerning the implication of an obligation of good faith in the context of a commercial contract. A number of observations are made which may be considered likely to have application to the relationship of commercial landlord and tenant. The conclusion reached is that although the commercial landlord and tenant contractual relationship is highly regulated, this may not deny a remedy to a tenant who is the victim of a landlord's 'bad faith'. Finally, the article concludes by considering the extent to which it may be possible to contractually exclude the implied obligation of good faith.

Contemporary consumer law : the role and effectiveness of regulation in consumer protection

This issue of the Griffith Law Review focuses on consumer law, and the pervasive nature of this area of law. We are all consumers, but do not necessarily identify as such, nor are we a homogeneous group. The boundaries of

Disclosure in insurance law : contemporary and historical economic considerations

This article examines the importance of accurate classification and identification of risk with particular reference to the problem of adverse selection. It is argued that, historically, this concern was the paramount consideration influencing standard form contract formation and disclosure laws. The scope of its relevance today however is less apparent in that contemporary insurance contracting is conducted in a vastly different environment from that which prevailed at the time Lloyd's was better known as a coffee house. Accordingly, the second part of this article looks at the contemporary framework of information disclosure and those dynamics within it designed to elicit information weighing on risk forecasting : specifically, (a) direct inquiry and testing requirements; (b) signaling - or incentive based structuring of insurance contractual and (c) bargaining in the shadow of the utmost good faith doctrine. Finally, certain conclusions arising out of contemporary and historical economic considerations underpinning disclosure in insurance law are outlined.

The nine lives of Vietnam's new competition law

Vietnam's present draft of the proposed new Law on Competition is currently in its ninth version. Although there is a need to enact legislation as quickly as possible, Vietnam cannot rush the drafting process. Under its Bilateral Trade Agreement with the USA, Vietnam has committed to improve the quality of its laws and consistency of its legislative framework. Since the Law on Competition will be fundamental in establishing the legal framework for a more coherent and effective competition regime, and will have profound influences on Vietnam's objective of becoming a socialist-oriented market economy, its provisions must be well constructed and well considered, and this takes time. This article shows how the proposed Law is being crafted as compared to older drafts which sheds light on changes in policy during the drafting process. Where possible, the Draft is also compared with the laws in other jurisdictions for any assistance they might lend. In this author's opinion not all the changes are positive but any defects in the draft are not intractable and can be remedied prior to promulgation.

The international regulation of transnational mergers

Transnational mergers are mergers involving firms operating in more than one jurisdiction, or which occur in one jurisdiction but have an impact on competition in another. Being of this nature, they have the potential to raise competition law concerns in more than one jurisdiction. When they do, the transaction costs of the merger to the firms involved, and the competition law authorities, are likely to increase significantly and, even where the merger is allowed to proceed, delays are likely to occur in reaping the benefits of the merger. Ultimately, these costs are borne by consumers. This thesis will identify the nature and source of regulatory costs associated with transnational merger review and identify and evaluate possible mechanisms by which these costs might be reduced. It will conclude that there is no single panacea for transnational merger regulation, but that a multi-faceted approach, including the adoption of common filing forms, agreement on filing and review deadlines and continuing efforts toward increasing international cooperation in merger enforcement, is needed to reduce regulatory costs and more successfully improve the welfare outcomes to which merger regulation is directed.

From bricks to clicks : hybrid commercial spaces in the landscape of early literacy and learning

In their quest for resources to support children’s early literacy learning and development, parents encounter and traverse different spaces in which discourses and artifacts are produced and circulated. This paper uses conceptual tools from the field of geosemiotics to examine some commercial spaces designed for parents and children which foreground preschool learning and development. Drawing on data generated in a wider study I discuss some of the ways in which the material and virtual commercial spaces of a transnational shopping mall company and an educational toy company operate as sites of encounter between discourses and artifacts about children’s early learning and parents of preschoolers. I consider how companies connect with and ‘situate’ people as parents and customers, and then offer pathways designed for parents to follow as they attempt to meet their very young children’s learning and development needs. I argue that these pathways are both material and ideological, and that are increasingly tending to lead parents to the online commercial spaces of the world wide web. I show how companies are using the online environment and hybrid offline and online spaces and flows to reinforce an image of themselves as authoritative brokers of childhood resources for parents that is highly valuable in a policy climate which foregrounds lifelong learning and school readiness.

Standardisation and patent ambush : potential liability under Australian competition law

This article examines the problem of patent ambush in standard setting, where patent owners are sometimes able to capture industry standards in order to secure monopoly power and windfall profits. Because standardisation generally introduces high switching costs, patent ambush can impose significant costs on downstream manufacturers and consumers and drastically reduce the efficiency gains of standardisation.This article considers how Australian competition law is likely to apply to patent ambush both in the development of a standard (through misrepresenting the existence of an essential patent) and after a standard is implemented (through refusing to license an essential patented technology either at all or on reasonable and non-discriminatory (RAND) terms). This article suggests that non-disclosure of patent interests is unlikely to restrained by Part IV of the Trade Practices Act (TPA), and refusals to license are only likely to be restrained if the refusal involves leveraging or exclusive dealing. By contrast, Standard Setting Organisations (SSOs) which seek to limit this behaviour through private ordering may face considerable scrutiny under the new cartel provisions of the TPA. This article concludes that SSOs may be best advised to implement administrative measures to prevent patent hold-up, such as reviewing which patents are essential for the implementation of a standard, asking patent holders to make their licence conditions public to promote transparency, and establishing forums where patent licensees can complain about licence terms that they consider to be unreasonable or discriminatory. Additionally, the ACCC may play a role in authorising SSO policies that could otherwise breach the new cartel provisions, but which have the practical effect of promoting competition in the standards setting environment.

Commercial vulnerability of tenant : a special disadvantage?

The Full Federal Court has once again been called upon to explore the limits of s51AA of the Trade Practices Act 1974 (Cth) in the context of a retail tenancy between commercially experienced parties. The decision is Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62.

Can compensation be claimed under the standard commercial land and building contract where the property sold has no legally enforceable vehicular access?

This was the question that confronted Wilson J in Jarema Pty Ltd v Michihiko Kato [2004] QSC 451. Facts The plaintiff was the buyer of a commercial property at Bundall. The property comprised a 6 storey office building with a basement car park with 54 car parking spaces. The property was sold for $5 million with the contract being the standard REIQ/QLS form for Commercial Land and Buildings (2nd ed GST reprint). The contract provided for a “due diligence” period. During this period, the buyer’s solicitors discovered that there was no direct access from a public road to the car park entrance. Access to the car park was over a lot of which the Gold Coast City Council was the registered owner under a nomination of trustees, the Council holding the property on trust for car parking and town planning purposes. Due to the absence of a registered easement over the Council’s land, the buyer’s solicitors sought a reduction in the purchase price. The seller would not agree to this. Finally the sale was completed with the buyer reserving its rights to seek compensation.

Changes to the REIQ contract and conveyancing case law update

The Reference Schedule to the REIQ houses and land contract and the lots in a Community Titles Scheme (“CTS”) contract has been amended to contain provision for disclosure concerning the installation of an approved safety switch. This section will not be required to be completed if the land is vacant (in the case of the houses and land contract) or if the present use is a commercial use (in the case of the lots in a CTS contract).