Wastech:
Confirms that the duty to exercise
discretionary contractual powers in good faith, like the duty of
honest contractual performance, applies to all contracts and cannot
be excluded by the parties;
Clarifies that the duty is breached
where a party exercises a contractual power unreasonably , meaning in a manner not connected to the
underlying purposes for which the discretion is granted;
Mandates that when ascertaining
whether an exercise of discretion is unreasonable, and therefore a
breach of the duty, the court must interpret the contract (the first source of justice between the parties ) as a
whole. The content of the duty is guided by the intentions of
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Property developers, construction contractors and others involved in the construction industry are frequent users of arbitration. The only limits to the nature and complexity of commercial disputes that can be referred to arbitration are the limits set by the arbitration agreement from which arbitrators (with help from both statute and judge-made law) derive their powers.
Arbitrators powers are defined broadly in both statutes and contracts
In fact, as the WA Supreme Court s Kenneth Martin J. recently reminded us, commercial arbitration statutes and most commonly used arbitration agreements tend to expand an arbitrator s powers to deal with disputes that have been properly referred to them. This is generally done by:
WICET ) (the principal). While CMC
succeeded on their claim against WICET at trial, WICET also
succeeded on their counterclaim against CMC. The key issue arose
from the fact that WICET made an all-up offer,
expressed to be under Chapter 9, Part 5 of the
Uniform Civil
Procedure Rules 1999
(
UCPR ), to settle all
claims in the proceeding . The offer was also accompanied by a
covering letter which bore the heading without prejudice
except as to costs .
However, as the offer did not distinguish between the claim and
counterclaim, the trial judge had to establish whether the all-up offer for all claims in the
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In the current climate, if no agreement is reached early on, due
to current delays in the Family Court, there is currently an
average 2 to 3 year period until parties are listed for a Trial. As
such, it is not uncommon for parties to repartner or remarry before
their financial affairs with their ex de facto partner or spouse
have been completed.
This article explores the impact that embarking on a new
relationship following separation with your ex de facto partner or
spouse can have on your family law financial matters.
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This recent Queensland Court of Appeal decision
clarifies the effect of a late adjudication and reiterates why it
is important for contractors to frequently review their licensing
position.
Whether lateness of the Adjudicator s decision made it
void.
Whether the costs of the Adjudicator were payable.
Whether the works were excluded from the definition of building
work requiring a licence and whether in the circumstances the
adjudicator had any jurisdiction to decide the builder was entitled
to a progress payment under the Building Industry Fairness