repudiatory breach to terminate the contract, the High Court expressed the significance of the specific wording in the contract. Teare J held that the termination contract clause in this case only related to breaches capable of being remedied, and that the breach of exclusivity was incapable of being remedied. Teare J contextualised the application of the termination clause as being limited by its wording. The clause depended on “failure to observe any of the terms herein” and was the only one of six contractual rights to terminate which required notice to remedy. Teare J found that it could be inferred the procedure in the clause was intended to apply only to the specific right to terminate found in the clause, “…not to any of the other express rights to terminate…or the right at common law to accept a repudiatory breach as terminating the contract”. The High Court upheld the Arbitration Tribunal’s decision that Richmond’s termination was lawful, and they were not required to give Vinergy notice or a remedy period. Comment These cases demonstrate the different approaches taken to the issue of repudiation by Courts in different jurisdictions. The New South Wales Court of Appeal in Australia demonstrated a reluctance to infer repudiation, preferring to uphold contractual termination obligations, unless there had been an unambiguous communication of renunciation of either the contract as a whole or a fundamental obligation under it. Meanwhile, the United Kingdom High Court showed a more liberal approach to the common law right of termination for repudiation, confirming that in the absence of a clear and unequivocal contractual provision, the Court will be reluctant to restrict the common law right to terminate. The judicial uptake and effect of these decisions in subsequent cases remains to be seen. However, it will be interesting to see whether either case has an impact on the New Zealand Courts’ approach to similar issues.
By Sarah Redding Kensington Swan Lawyers
BUILDING DISPUTES TRIBUNAL TO LAUNCH NEW RULES IN 2017 The Building Disputes Tribunal is about to launch a revised suite of rules to govern the dispute resolution services it provides including Arbitration, Mediation, Arb/Med, Expert Determination and early Neutral Evaluation. The new rules contain a number of visionary innovations intended to address the needs of the modern building and construction community for efficient and effective dispute resolution and to further asserts BDT’s position as the leading independent specialist dispute resolution service provider to the building and construction industry in New Zealand. Watch this space for further announcements about the rules launch in 2017