Neptune Hospitality Pty Ltd v Ozmen Entertainment Pty Ltd [2020] FCAFC 47 (19 March 2020) (McKerracher, Markovic and Anastassiou JJ)


Catchwords:


ADMIRALTY – demise charter – construction – whether demise charter validly terminated – where demise charter for the purpose of joint venture agreement – where joint venture agreement validly terminated

CONTRACTS – express duties of good faith and cooperation – whether breach of these duties precluded a party from issuing a notice to remedy breach – whether party took advantage of its own breach – in circumstances where primary judge found no breach by party issuing the breach notice.

CONTRACTS – notice to remedy breach ­–where notice conveys clear intention to terminate agreement if breaches of continuing obligations not remedied within specified time – where impossible to remedy past breaches – whether possible for party to remedy past breaches by acting “to put things right for the future”

CONTRACTS – termination under contract or at common law – where multiple breaches of obligations and duties under joint venture agreement – where one party required to provide fortnightly financial reports and information to other – duties of trust and good faith and of making decisions jointly – duty not to unilaterally incur debts – duty to comply with taxation obligations – conditions, warranties and innominate terms ­– whether unremedied breach of innominate terms sufficiently serious to justify termination – whether multiple breaches by party evinced intention not to be bound – in circumstances where common law beach of joint venture not pleaded at trial.

EQUITY – joint venture – whether equity will permit a party to retain the benefit of another party’s contribution to the endeavour – whether party entitled to restitutionary remedy or fair remuneration – in circumstances where contract was validly terminated