Case Note On Contract: Express Right Of Termination Trumps Repudiation

Article by Rachael Black and Liam Prescott

The Full Court of the Federal Court recently considered the unusual circumstance of a party to a contract seeking to rely on an express right of termination, even though that party had itself repudiated the contract.

The judgment of Perram J in Allphones Retail Pty Ltd v Hoy Mobile Pty Ltd (Goldberg and Jacobson JJ agreeing), the Allphones decision, identified a tension, not previously considered by the Courts, between the contractual and common law positions regarding termination by a party that has repudiated the agreement.

Although the tension was resolved by the Court in favour of the parties' express contractual rights, the right of termination may not have been available at common law.