Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185

Court of Appeal Supreme Court New South Wales Medium Neutral Citation: Donau Pty Ltd v ASC AWD Shipbuilder Pty Ltd [2019] NSWCA 185 Hearing dates: 10, 11 April 2019 Date of orders: 26 July 2019 Decision date: 26 July 2019 Before: Bell P at [1]; Basten JA at [154]; Emmett AJA [178] Decision: 1. Appeal allowed with costs.

2. Cross-Appeal dismissed with costs.

3. Set aside the orders of the primary judge.

4. Order that ASC pay Forgacs' costs of the proceedings at first instance.

5. Direct that the parties bring in short minutes reflecting the amount due to be paid by ASC to Forgacs in light of these reasons including any interest component.

6. Liberty to apply in the event that the parties are unable to reach agreement in relation to order 5. Catchwords: CONTRACTS – ship construction – interpretation –contract to come into effect on the earlier of the date set out in a clause and the date on which the parties reached agreement on a particular matter – whether reaching agreement a condition precedent to contract coming into effect – where clause referred to two dates – later date was date on which one party acquired a right to terminate if agreement not reached – whether earlier or later date relevant date for commencement

CONTRACTS – termination – purported termination pursuant to contractual right – whether party had elected to affirm the contract – whether right to terminate exercised within a reasonable time – meaning of reasonable time – point at which reasonable time to be assessed – whether any difference between a reasonable time to exercise a right and a reasonable time to perform an obligation – Ballas v Theophilos (No 2) (1957) 98 CLR 193 considered