mdroth/huggingface-course_section-5_zst huggingface dataset:
Case: Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 
Outcome: referred to
In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.
Case: Foran v Wight [1989] HCA 51 ; (1989) 168 CLR 385 
Outcome: referred to
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?
Case: Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703 
Outcome: referred to
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 147 A requirement to act ' reasonably ' when acting in good faith was first articulated in Australia by Priestly JA in Renard Constructions where his Honour observed that reasonableness had " much in common with the notions of good faith" : at 263. Following this decision, courts have favoured ' reasonableness ' as one of the requirements of good faith. Finkelstein J in Garry Rogers Motors stated that "provided the party exercising the power acts reasonably in all the circumstances, the duty to act fairly and in good faith will ordinarily be satisfied" : at [37]. However, several Australian academics have rejected the proposition that good faith includes a requirement of reasonable conduct: See Carter et al (2007) at 27 and Peden, E " When Common Law Trumps Equity: the Rise of Good Faith and Reasonableness and the Demise of Unconscionability " (2005) 21 JCL 226. Factors tied to the content of the contract
Case: Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 
Outcome: referred to
In Australia, part of the impetus for the recognition of a implied duty to act in good faith has been the desirability and practice of courts in controlling reliance on general rescission clauses so as to prevent their use " for improper and extraneous purposes ": see Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 at 548; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587 (per Barwick CJ); and Burger King at [151]. In light of these matters and of the foregoing analysis, the issue is whether the conduct of BreakFree, in the course of negotiations and ultimately relying on its power to terminate the HofA under cl 2.2.2, judged objectively, demonstrated a lack of good faith.
Case: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 
Outcome: considered
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 133 In Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [40], Kirby J at [87] [89]) and Callinan J at [156], the High Court declined to decide the issue of the existence and content of such an obligation. At that time, the authorities relevant to the implied term of ' fair dealing' were collected and discussed by Finn J in Hughes Aircraft Systems at 188-198. It is unnecessary to traverse either those authorities or the more recent decisions that have considered the issue. 140 Earlier in Hughes Aircraft Systems at 192-193, Finn J described the implied duty in more general terms. He said: "...I consider a virtue of the implied duty to be that it expresses in a generalisation of universal application, the standard of conduct to which all contracting parties are to be expected to adhere throughout the lives of their contracts." (iv) 141 The difficulty with the contextual standard or a " generalisation of universal application " ( Hughes Aircraft Systems at 193) is to identify the precise boundaries of this standard. It has evaded the grasp of precise judicial statement. However, the factors put forward by various judges as indicative factors of good faith and, the converse, bad faith may be divided into three categories intention, conduct and the content of the particular contract in question. Factors highlighting intention 142 It appears common ground that good faith requires ' honesty ': Carter et al (2007) at 26 citing, as an example, the definition in s 5(2) of the Sale of Goods Act 1923 (NSW), that " [a] thing is deemed to be done " in good faith " within the meaning of this Act when it is in fact done honestly, whether it be done negligently or not " (emphasis added); Mason A, "Contract, Good Faith and Equitable Standards in Fair Dealing" (2000) 116 LQR 66. The difficulty in identifying the scope of ' honesty ' suffers the same problems as defining the expression ' in good faith '. It merely replaces one term with another.
Case: Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 
Outcome: referred to
In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.
Case: Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 
Outcome: referred to
Traditionally, agreements to negotiate in ' good faith ' were viewed as unenforceable due to want of certainty or lack of consideration, eg Carr v Brisbane City Council [1956] St R Qd 402; Mallozzi v Carapelli SpA [1976] 1 Lloyd's Rep 407 and Walford v Miles [1992] 2 AC 128 at 138 cited by Einstein J in Aiton Australia Pty Ltd v Transfield Pty Ltd [1999] NSWSC 996 ; (1999) 153 FLR 236 at [80] .
Case: Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 
Outcome: applied
It is a composite clause. It appears to involve two concepts - " negotiations in good faith " - but directed at a particular end - "to ensure that the terms set out in these [HofA] are given full effect. " The phrase " negotiations in good faith " is not a defined term. That does not necessarily make the requirement uncertain. In Coal Cliff at 27, Kirby P acknowledged that: "[i]n a small number of cases, by reference to a readily ascertainable external standard, the court may be able to add flesh to a provision which is otherwise unacceptably vague or uncertain or apparently illusory: see eg, Powell v Jones [1968] SASR 394 at 399; Sweet and Maxwell Ltd v Universal News Services Ltd [1964] 2 QB 699; cf Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 589; Jillcy Film Enterprises [ Inc v Home Box Office Inc 593 F Supp 515 at 521 (1984); [and]] Ridgeway Coal Co Inc v FMC Corporation [616 F Supp 404 (1985) at 408] ." 124 Against that background, two matters must be noted at the outset. A term stipulating that parties " will conduct all such negotiations in good faith " is a contractual term. In Meehan v Jones [1982] HCA 52 ; (1982) 149 CLR 571 at 578, Gibbs CJ said that: "It is only if the court is unable to put any definite meaning on the contract that it can be said to be uncertain." 125 If it is possible to attribute a definite meaning to cl 3.3 of the HofA, even if there be more than one possible meaning, the requirement that the parties negotiate in good faith will not be void for uncertainty: Meehan v Jones at 578 citing Upper Hunter County District Council v Australian Chilling and Freezing Co Ltd [1968] HCA 8 ; (1968) 118 CLR 429 at 436 (per Barwick CJ). The question whether the court is capable of putting a definite meaning on cl 3.3 raises additional issues - when, how, why and by reference to what standard or principles is the clause to be given a definite meaning? How is one person's bargaining to be judged to be in breach of a promise or a duty to negotiate in good faith? Is a higher duty to be imposed in certain and, if so, what circumstances? Do the additional words " to ensure that the terms set out in these Heads of Agreement are given full effect" in cl 3.3 of the HofA assist in providing certainty or add to its uncertainty? What do these additional words mean?
Case: Overlook Management BV v Foxtel Management Pty Ltd (2002) ACR 90 143 
Outcome: referred to
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.
Case: Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 
Outcome: referred to
In Australia, part of the impetus for the recognition of a implied duty to act in good faith has been the desirability and practice of courts in controlling reliance on general rescission clauses so as to prevent their use " for improper and extraneous purposes ": see Godfrey Constructions Pty Ltd v Kanangra Park Pty Ltd [1972] HCA 36 ; (1972) 128 CLR 529 at 548; Pierce Bell Sales Pty Ltd v Frazer [1973] HCA 13 ; (1973) 130 CLR 575 at 587 (per Barwick CJ); and Burger King at [151]. In light of these matters and of the foregoing analysis, the issue is whether the conduct of BreakFree, in the course of negotiations and ultimately relying on its power to terminate the HofA under cl 2.2.2, judged objectively, demonstrated a lack of good faith.
Case: Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 
Outcome: referred to
Although no implied duty to negotiate in good faith was pleaded or relied on, it is convenient to consider the issue for such light that it sheds upon the express duty that was both pleaded and relied on. There has been a recent willingness of Australia Courts to find that a duty of ' good faith ' in negotiations is an implied or incidental term of every commercial contract unless the duty is either excluded expressly or by necessary implication: Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] ; Vodafone Pacific Ltd v Mobile Innovations Ltd [2004] NSWCA 15 ; Burger King Corporation v Hungry Jack's Pty Ltd [2001] NSWCA 187 ; Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) 21 ATPR 41-703; Alcatel Australia Pty Ltd v Scarcella (1998) 44 NSWLR 349; Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 and Renard Constructions (ME) Pty Ltd v Minister for Public Works (1992) 26 NSWLR 234 . 143 As a result, some academics and judges have resorted to ascertaining the scope of ' good faith ' by focusing on the negative or the exclusions - what constitutes ' bad faith '. This has been described as the ' excluder ' definition on the basis that the good faith requirement cannot actually be satisfied in positive terms: See Summers RS, "'Good Faith' in General Contract Law and the Sales Provisions of the Uniform Commercial Code" (1968) 54 Va L Rev 195; Renard Constructions at 266; Burger King at [150]; and Pacific Brands Sport &amp; Leisure Pty Ltd v Underworks Pty Ltd [2005] FCA 288 at [64] - [65] . 147 A requirement to act ' reasonably ' when acting in good faith was first articulated in Australia by Priestly JA in Renard Constructions where his Honour observed that reasonableness had " much in common with the notions of good faith" : at 263. Following this decision, courts have favoured ' reasonableness ' as one of the requirements of good faith. Finkelstein J in Garry Rogers Motors stated that "provided the party exercising the power acts reasonably in all the circumstances, the duty to act fairly and in good faith will ordinarily be satisfied" : at [37]. However, several Australian academics have rejected the proposition that good faith includes a requirement of reasonable conduct: See Carter et al (2007) at 27 and Peden, E " When Common Law Trumps Equity: the Rise of Good Faith and Reasonableness and the Demise of Unconscionability " (2005) 21 JCL 226. Factors tied to the content of the contract
Case: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 
Outcome: referred to
In the circumstances, I am not persuaded that Latitude was misled by BreakFree. Though private contractual negotiations involving a corporation in trade or commerce may support a claim for a breach of s 52 of the TPA, it is important to distinguish infringing conduct from representations that are apposite to "sharp commercial practice" or made in the course of parties bargaining at arm's length: Rhone Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 at 490; Lam v Ausintel Investments Australia Pty Ltd (1989) 97 FLR 458 at 475; Demagogue Pty Ltd v Ramensky (1992) 39 FCR 31 at 32 (per Black CJ); at 40-41 (per Gummow J); Poseidon Ltd v Adelaide Petroleum NL Ltd (1992) 105 ALR 25 at 26 and Australian Competition and Consumer Commission v Oceania Commercial Pty Ltd [2003] FCA 1516 at [196] - [201] . The relationship between Latitude and BreakFree was that of vendor and purchaser, bargaining at arm's length. In these circumstances, there cannot be said to have been any expectation on either side that BreakFree would not reserve its rights to undertake development, either in relation to the Erskine on the Beach Project or other projects. This is reinforced by the evidence outlined above. Similarly, any non-disclosure by BreakFree about its commercial intentions should a long form contract not be struck with Latitude cannot be construed as misleading or to have misled Latitude.
Case: Royal Botanic Gardens and Domain Trust v South Sydney City Council (2002) 76 ALJR 43 
Outcome: referred to
In Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5 ; (2002) 76 ALJR 436 (Gleeson CJ, Gaudron, McHugh, Gummow and Hayne JJ at [40], Kirby J at [87] [89]) and Callinan J at [156], the High Court declined to decide the issue of the existence and content of such an obligation. At that time, the authorities relevant to the implied term of ' fair dealing' were collected and discussed by Finn J in Hughes Aircraft Systems at 188-198. It is unnecessary to traverse either those authorities or the more recent decisions that have considered the issue. 136 There is a lack of consensus about the content of the requirement of good faith in negotiations. That is not surprising. The High Court declined to enter the debate in Royal Botanic Gardens and Canadian academic, Professor Michael Bridge, sceptically defined good faith as " a concept which means different things to different people in different moods at different times and in different places ": '"Does Anglo-Canadian Contract law need a Doctrine of Good Faith?'" (1984) 9 Can Bus LJ 385 at 407. Professor Bridge's description is concerning. If true, a requirement to negotiate in good faith provides little or no assistance to parties in seeking to ascertain or judge their conduct. 137 While the precise boundaries of the content of a requirement of good faith in negotiations remains unclear, some propositions have enjoyed varying degrees of judicial support.
Case: Selkirk v Romar Investments Ltd [1963] 1 WLR 1415 
Outcome: referred to
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. 183 In light of the conclusions earlier set out, it is also unnecessary to consider and resolve Latitude's complaint that BreakFree breached its duty to negotiate in good faith. However, for the sake of completeness, I made the following observations. The legal analysis of the express and implied duty to negotiate in good faith set out above is relevant. It must be recalled that the context in which impugned conduct is said to arise is relevant. Here, BreakFree and Latitude were negotiating in the commercial context of vendor and purchaser. "Bad faith" or conduct imputing an absence of "good faith" takes on particular meaning where a vendor, in the position of BreakFree, seeks to use a power of rescission to resile late in the course of negotiations. Viscount Radcliffe's comments in Selkirk at 1422-23 are instructive: "... it has been said that a vendor, in seeking to rescind, must not act arbitrarily, or capriciously, or unreasonably. Much less can he act in bad faith. He may not use the power of rescission to get out of a sale "brevi manu," since by doing so he makes a nullity of the whole elaborate and protracted transaction. Above all...he must not be guilty of "recklessness" in entering into his contract, a term [connoting] an unacceptable indifference to the situation of a purchaser who is allowed to enter into a contract with the expectation of obtaining a title which the vendor has no reasonable anticipation of being able to deliver. A vendor who has so acted is not allowed to call of the whole transaction by resorting to the contractual right of rescission.. ."