Case: Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 
Outcome: applied
It is sufficient to note that intermediate courts have repeatedly been willing to hold that such a duty exists. However, as noted earlier I was referred to only one decision where the existence of such a duty (express or implied) was held to have been breached: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [66] , a decision which Gyles J subsequently described as ' adventurous ': Council of the City of Sydney v Goldspar Australia Pty Ltd (2006) 230 ALR 437 at [166]. Two things should be noted about the decision at first instance. First, the breach of such a duty was not determinative ( Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [60] ) and the decision was the subject of appeal. Finn and Sundberg JJ at [119] considered that it was unnecessary or inappropriate to deal with the issue given their conclusions on other issues and, further, went on to say (at [119]) that: "Given both the multiple assumptions required to be made if one was to consider [the subject of breach of an implied duty of good faith] and the potentially contentious nature character of it in any event, we do not consider it is appropriate or helpful to enter upon the matter at this point in this appeal." See also Emmett J at [235] [238]. 139 More recently Gyles J in Goldspar at [168] said: "The best way for a single judge to travel through this thicket is to concentrate upon the particular contractual provision in question, in the particular contract, in the particular circumstances of the case." 146 Specific conduct has also been identified by various courts as constituting ' bad faith ' or a lack of ' good faith ' including: (1) acting arbitrarily, capriciously, unreasonably or recklessly: e.g. see Viscount Radcliffe in Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 at 1422-23 cited by Gyles J in Goldspar at [173]; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] ; (2) acting in a manner that is oppressive or unfair in its result by, for example, seeking to prevent the performance of the contract or to withhold its benefits: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [65] - [66] ; (3) failing to have reasonable regards to the other party's interests: Overlook Management BV v Foxtel Management Pty Ltd (2002) ACR 90 143 at [67] cited by Peden E, Good Faith in the Performance of Contracts (2003) at 160. (4) failing to act 'reasonably' in general. I consider this requirement in further detail below. 177 A party, which has properly brought a contract to an end by accepting a wrongful repudiation by the other party to an executory contract, must establish that it was ready and willing to carry out the contract at the time of acceptance of the repudiation and such readiness and willingness includes capacity: Goldspar at [200] [202] and the authorities cited. As those authorities make clear the question is whether Latitude demonstrated that it was not then " disabled or incapacitated from ... performance ": Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 at 408-409 (per Mason CJ). That issue raises two questions - what was to be performed and was the relevant party to the contract disabled or incapacitated from performing those matters?