Implied terms and statutory obligations

Question 1

Commonwealth bank of australia v barker

Answer 1

For the court to imply a term, it must be demanded by social conditions and desirable public policy that inform the contract of employment in Australia, or be necessary for business efficacy.

An implied duty of obligation is implied into every contract

Question 2

BP refinery pty ltd v shire of hastings

Answer 2

For a term to be implied:

• the term must be reasonable and equitable
• it must be necessary to give the contract business efficacy
• it must be so obvious that ‘it goes without saying
• the term must be capable of clear expression
• it must not contradict any of the terms of the express contract

Question 3

Codelfa Contruction Pty Ltd v State railway authority

Answer 3

A term must be so obvious that ‘it goes without saying to be implied; consideration of the subject is not enough

officious bystander test - would an officious bystander (present throughout negotiations who interjected before the conclusion) would have concluded what the term was

Can only imply terms where necessary to give a contract business efficacy

Application of BP only for formal contracts, for informal contract, terms are implied only if it is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case

Question 4

Marks & spencer v BNP paribas

Answer 4

“Business efficacy” and “Obviousness” can be alternatives