Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 539

New South Wales Supreme Court

CITATION : Hunter Valley Skydiving Centre Pty Limited v Central Coast Aero Club Limited & anor [2008] NSWSC 539

HEARING DATE(S) : 10-14 March & 3 April 2008

JUDGMENT DATE : 3 June 2008

JURISDICTION : Equity Division Expedition List

JUDGMENT OF : Brereton J

DECISION : By accepting payment of fees due on 21 July 2007, Club elected to affirm agreement despite any entitlement to terminate for breaches of which it had notice and thereby waived any breaches up to at least 21 July 2007. After 21 July 2007, HVS committed further breaches of the agreement. Those breaches were breaches of conditions of the consent, upon which the Club had a contractual right to terminate. On 15 August, the Club reasonably formed the opinion that there had been breaches of a condition of consent, and validly and effectively revoked the consent. No breach of any implied obligation of good faith was involved in exercising the contractual right of termination, nor would relief against forfeiture, if sought, have been granted. Proceedings for specific and other relief in respect of contract dismissed with costs.

CATCHWORDS : CONTRACT – Breach – Election– consent agreement for parachute operations between aero club and parachute operator – where contract gives club right to revoke consent in event of club forming opinion that there has been a breach of any condition of consent – where club alleges numerous breaches over a period of two years – where club accepts fees under agreement with notice of alleged breaches until one month prior to purported termination – whether club elected to affirm – whether further breaches committed by parachute operator after date to which waiver effective – Termination – Construction – whether provisions of agreement not expressly stated to be essential conditions were "conditions of consent" – whether breaches were such as to entitle club to revoke consent – Terms – implied terms – to exercise contractual rights only in good faith – whether such term to be implied – whether purported termination was in breach of any obligation of good faith – Relief against forfeiture – whether relief against forfeiture would have been granted.