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.

In search of good governance for Asian family listed companies : a case study on Hong Kong

Discusses the importation of Western concepts of corporate governance into Hong Kong where many companies are family companies to which Asian culture is more familiar. Considers different models of corporate governance and questions the application of Western structures to family owned companies. Examines the weaknesses inherent in the typical structure of Asian companies, particularly from the point of view of minority shareholders. Suggests that a system of governance based on Confucian philosophy may be more effective in Hong Kong.

Acquire a practical overview of 'good faith' in commercial contracting

The twists and turns in the ongoing development of the implied common law good faith obligation in the commercial contractual arena continue to prove fertile academic ground. Despite a lack of guidance from the High Court, the lower courts have been besieged by claims based, in part, on the implied obligation. Although lower court authority is lacking consistency and the ‘decisions in which lower courts have recognised the legitimacy of implication of a term of good faith vary in their suggested rationales’, the implied obligation may provide some comfort to a party to ‘at least some commercial contracts’ faced with a contractual counterpart exhibiting symptoms of bad faith.

Risky strategic behaviour : unintended consequences of good intentions in the homelessness service system

The delivery of human services occurs through a complex and often volatile system characterised by both competing and cooperating efforts. A recent strategic intention of government has been to integrate disparate service providers and programs into a more effective and efficient system using competitive funding regimes. A program of amalgamation has also been forecast and promoted as a further mechanism by which to link up smaller agencies thus creating economy and efficiency in the scale and scope of their service modes. Despite the current reliance on competitive funding models and amalgamation as the preferred ways forward for the sector little is known about their integrative capacity including their ability to predict outcomes and their consequences : the ‘unknown unknowns’. Drawing on an extensive data set of human services integration initiatives in Queensland, Australia, this paper examines the impact of government policy and service models and the risks arising from the tensions between competition and accountability on the one hand and the established good will and trust on the other. It is argued that unresolved, these tensions can lead to a weakening of the social infrastructure and make the system more vulnerable to inherent systemic risks. The paper finds that government’s efforts to externalise risk to the non-government sector leads to fragmentation of the service system and fractured collaborative capability. These unintended outcomes themselves have the unintended consequence of leaving governments disconnected from the service system and unable to provide the leadership role and direction necessary for sustained integration. Moreover, facilitating such a leadership role is undermined by behaviours that are directly contrary to collective integration models.

Common law obligations of good faith in non-fiduciary joint ventures

This chapter is devoted to the issue of non-fiduciary common law obligations of good faith, as they may arise in the performance and enforcement of joint ventures. In recent times a rush of commercial contractual claims involving good faith has signified the need for a separate chapter examining this issue. Although most of these decisions have arisen in commercial contexts other than joint ventures, the decisions, nevertheless, warrant careful consideration to the extent that they cast light on the likely contours of the common law good faith obligation as it may apply in the joint venture context.

Mapping the conditions of penal hope

This article examines the conditions of penal hope behind suggestions that the penal expansionism of the last three decades may be at a ‘turning point’. The article proceeds by outlining David Green’s (2013b) suggested catalysts of penal reform and considers how applicable they are in the Australian context. Green’s suggested catalysts are: the cycles and saturation thesis; shifts in the dominant conception of the offender; the global financial crisis (GFC) and budgetary constraints; the drop in crime; the emergence of the prisoner re‐entry movement; apparent shifts in public opinion; the influence of evangelical Christian ideas; and the Right on Crime initiative. The article then considers a number of other possible catalysts or forces: the role of trade unions; the role of courts; the emergence of recidivism as a political issue; the influence of ‘evidence based’/‘what works’ discourse; and the emergence of justice reinvestment (JR). The article concludes with some comments about the capacity of criminology and criminologists to contribute to penal reductionism, offering an optimistic assessment for the prospects of a reflexive criminology that engages in and engenders a wider politics around criminal justice issues.

Ten principles of good business process management

Purpose The purpose of this paper is to foster a common understanding of business process management (BPM) by proposing a set of ten principles that characterize BPM as a research domain and guide its successful use in organizational practice. Design/methodology/approach The identification and discussion of the principles reflects our viewpoint, which was informed by extant literature and focus groups, including 20 BPM experts from academia and practice. Findings We identify ten principles which represent a set of capabilities essential for mastering contemporary and future challenges in BPM. Their antonyms signify potential roadblocks and bad practices in BPM. We also identify a set of open research questions that can guide future BPM research. Research limitation/implication Our findings suggest several areas of research regarding each of the identified principles of good BPM. Also, the principles themselves should be systematically and empirically examined in future studies. Practical implications – Our findings allow practitioners to comprehensively scope their BPM initiatives and provide a general guidance for BPM implementation. Moreover, the principles may also serve to tackle contemporary issues in other management areas. Originality/value This is the first paper that distills principles of BPM in the sense of both good and bad practice recommendations. The value of the principles lies in providing normative advice to practitioners as well as in identifying open research areas for academia, thereby extending the reach and richness of BPM beyond its traditional frontiers.

The importance of good data, analysis and interpretation for showing the economics of reducing healthcare-associated infection

To the Editor—In a recent review article in Infection Control and Hospital Epidemiology, Umscheid et al1 summarized published data on incidence rates of catheter-associated bloodstream infection (CABSI), catheter-associated urinary tract infection (CAUTI), surgical site infection (SSI), and ventilator- associated pneumonia (VAP); estimated how many cases are preventable; and calculated the savings in hospital costs and lives that would result from preventing all preventable cases. Providing these estimates to policy makers, political leaders, and health officials helps to galvanize their support for infection prevention programs. Our concern is that important limitations of the published studies on which Umscheid and colleagues built their findings are incompletely addressed in this review. More attention needs to be drawn to the techniques applied to generate these estimates...

Class notes : 10 principles of good BPM

The question concerning what makes for good BPM is often raised. A recent call from Paul Harmon on the BPTrends Discussion LinkedIN Group for key issues in BPM received 189 answers within two months, with additional answers still appearing. I have teamed up with a number of BPM researchers and practitioners to bring together our joint experience in a BPM workshop at the University in Liechtenstein in 2013, where we developed ten principles of good BPM, later published in Business Process Management Journal (vom Brocke et al., 2014). The paper, which has received considerable attention in academia, was ranked the journal’s most downloaded paper the month it was published. Slides on Slideshare that provide a brief summary of the paper have been accessed more than 3,000 times since they were first put online in March 2014. Given the importance of the topic–what makes for good BPM–and the positive response to the ten principles, I wrote this note with the co-authors of the original BPMJ paper to outline the ten principles and illustrate how to use them in practice. We invite all readers to engage in this discussion via any channel they find appropriate.

In search of good probability assessors: An experimental comparison of elicitation rules for confidence judgments

In this paper, we use an experimental design to compare the performance of elicitation rules for subjective beliefs. Contrary to previous works in which elicited beliefs are compared to an objective benchmark, we consider a purely subjective belief framework (confidence in one’s own performance in a cognitive task and a perceptual task). The performance of different elicitation rules is assessed according to the accuracy of stated beliefs in predicting success. We measure this accuracy using two main factors: calibration and discrimination. For each of them, we propose two statistical indexes and we compare the rules’ performances for each measurement. The matching probability method provides more accurate beliefs in terms of discrimination, while the quadratic scoring rule reduces overconfidence and the free rule, a simple rule with no incentives, which succeeds in eliciting accurate beliefs. Nevertheless, the matching probability appears to be the best mechanism for eliciting beliefs due to its performances in terms of calibration and discrimination, but also its ability to elicit consistent beliefs across measures and across tasks, as well as its empirical and theoretical properties.

The logics of good teaching in an audit culture: A Deleuzian analysis

This article examines the attempted reform of education within an emerging audit culture in Australia that has led to the implementation of a high-stakes testing regime known as NAPLAN. NAPLAN represents a machine of auditing, which creates and accounts for data that are used to measure, amongst other things, good teaching. In particular, we address the logics of a policy intervention that aims to improve the quality of education through returning ‘good teaching’. Using Deleuze’s concepts of series, events, copies and simulacra, we suggest that an attempt to return past commonsense logics of ‘good teaching’ as a result of NAPLAN is not possible. In an audit culture as exemplified by NAPLAN, ‘good teaching’ is being reconceptualized through those practices and becomes unrecognizable. Whilst policy claims to improved equity and quality are admirable, this article suggests that the simulacral change to logics of good teaching may actualize something very different.