Autonomy in Contract Law (2025) by Willem H van Boom (Radboud University, Nijmegen) includes this valuable passage [footnotes omitted]:

In the context of contract law, all parties are assumed to have equal bargaining power and sufficient information. In this version of autonomy, the emphasis is on the right to enter into binding contracts and to accept the responsibility that comes with it. As we all know, this ‘freedom from’ can easily lead to coercion or domination by a stronger, richer, savvier, or more powerful party, resulting in unconscionable and unbalanced contracts. Consequently, when the law safeguards individuals against such excesses, it warrants autonomy. This is autonomy viewed positively: autonomy is not the freedom to extract value from others, but rather, it is a fundamental value that may require regulatory intervention, for instance to protect against others or even against the protectee’s own actions (paternalism).

Rescinding a contract induced by a pre-contractual misrepresentation means unwinding all its aspects: in a contract for the sale of land, returning to the buyer any deposit already paid and freeing them from any obligation to complete the purchase. Case Study 3 illustrates that, despite an actionable misrepresentation, rescission may not be available: some courts treat the remedy as always discretionary – having its origin in equity – and some have a statutory discretion to award damages instead. 

Keci v Barnes [2026] NSWSC 521 (Williams J) is an Australian example from beachside suburb Bronte NSW (south of Bondi). Rescission was granted of a A$6.2m land purchase contract after an implied innocent (meaning not fraudulent) misrepresentation by the seller’s agent induced the decision to buy: that planned future development on adjoining land would not impact the home’s ocean views. The contract contained both ‘entire agreement’ and ‘no reliance’ clauses – see the update below to section [4.4.4] – but the defendants seem not to have relied on these in court.

On innocent, negligent or fraudulent misrepresentations in property sales and the conditions under which they may be actionable (in tort or contract, and under statute), see the point-by-point discussion of the legal principles by Mohammed Faizal JC in Crystal Beauty Pte Ltd v Xu Jasmin [2025] SGHC 86, also discussed in the update above to section [2.6.1]. The judgment offers a lesson at [82]:

Conducting comprehensive due diligence in the form of a buyer assessing that any property they wish to purchase truly meets his/her needs (whatever the numbers or data points may suggest on paper, as this case sadly proves) ultimately remains essential to ensuring that a property’s value and specifications are aligned to its intended purpose.

(on the Misrepresentation Act 1967 (E&W, NI)) For the limitation position in relation to claims relying on the 1967 Act – and its Singapore equivalent – see the update below to section [10.5.2].

(especially for n 51) The new statutory disclosure regime in Queensland came into force for all relevant land contracts entered into on or after 1 August 2025. The required categories of disclosure and warnings are listed in the Property Law Regulation 2024 (Qld), together making up the Form 2 Seller Disclosure Statement, which the seller, their solicitor or real estate agent may complete. If no Form 2 is completed, or if it is inaccurate or incomplete in relation to a material matter, the buyer may have a statutory right to terminate the contract at any time before settlement. The new rules do not cover flooding or the property’s natural hazard history; its structural soundness or pest infestation; building or development approval; the presence of asbestos; or utility connections. This leaves scope for buyer due diligence, backed by enquiries from their solicitor. 

(especially for n 52) A new methodology for Energy Performance Certificates (England & Wales) for residential buildings came into force in June 2025, requiring more detailed data collection and results reporting, following the MHCLG consultation reported in the book. The RdSAP10 specification was developed by BRE (February 2024). For planned but separate reforms in Scotland, see Scottish Government, Energy Performance Certificate Reform Consultation: Government Response (January 2025). Changes in Scotland are to be delayed until 2027, aligning with the new regime in England & Wales.

(especially for n 53) Ellis v John Benson Ltd [2025] EWHC 2096 (KB) concerned long-term B2B franchising contracts under English law. Freedman J held – relying on Australian case law and the UK Post Office litigation – that the relationship between franchisor and 19 individual franchisees was closer to an employer-employee than to a vendor-purchaser relationship, onerous standard terms being imposed on each franchisee: see [230]ff. This imbalance justified implying – in fact, though not in law – good faith obligations on the franchisor at [278]ff, the franchisor’s widespread and repeated breaches of these being held to be repudiatory at [459]ff. This justified each franchisee’s refusal to continue with their contract; at [497]ff, the judge held that they had not affirmed it, which would have lost them the right to terminate.

For the concept of a duty to disclose ‘material information’, offsetting ‘caveat emptor’ (particularly between a trader and consumer), see Table 6.1. A seller of residential property in England & Wales (or their estate agent) may have to assemble and disclose such information to a potential buyer: see n 282 to section [6.7.6] and that section’s update below. On possible reforms to conveyancing in England & Wales which may increase disclosure obligations, see the update below to section [8.7].

(especially for n 53) For further English case law considering express ‘good faith’ obligations in a B2B context, see Re Compound Photonics Group Ltd [2022] EWCA Civ 1371, considered in Matière SAS v ABM Precast Solutions Ltd [2025] EWHC 1434 (TCC) at [61]ff (Alexander Nissen KC as a High Court Judge). On not implying good faith obligations into a contract described as ‘relational’, see Svella Connect Ltd v Virgin Media Ltd [2026] EWHC 2223 (TCC) (Pepperall J).

(especially for n 61) Merkon Constructions Pty Ltd v Residence Company Pty Ltd [2025] VSC 151 provides a useful reminder of the elements of estoppel in a residential context and the need for sufficient proof in relation to each; here, the elements failing for want of proof included detriment: see [27].

(especially for nn 61-62) A helpful summary of the impact at common law of ‘entire agreement’ and ‘no representations’ clauses (leaving out any statutory consumer protection measures which may alter this position) comes from Mohamed Faizal J in Oon Koon Cheng v Li Hua [2026] SGHC 169 at [93] [some citations omitted]:

The effect of an entire agreement clause is to deny contractual force to statements which are not contained in the contract and thereby preclude any claim based on a side agreement or collateral warranty; it does not purport to affect the status of any statement as a (pre-contractual) misrepresentation, and thus does not preclude a claim for misrepresentation. Notably, misrepresentations have been held not to be excluded by the mere inclusion of the word ‘representation’ in an entire agreement clause. 

In contrast, a ‘no representation’ or ‘non-reliance’ clause may give rise to a contractual estoppel where the parties bind themselves by contract to a fictional state of affairs in which no representations have been made, or if made, have not been relied on. These clauses may also be capable of operating as an evidential estoppel provided that the three requirements in Lowe v Lombank Ltd [1960] 1 WLR 196 are satisfied, ie (i) the statement of ‘no representation’ or ‘non-reliance’ in the clauses is clear and unequivocal; (ii) the party providing this statement had intended that the counterparty should act on this statement; and (iii) the counterparty had believed the statement of ‘no representation’ or ‘non-reliance’ to be true and had acted upon it. In effect, such clauses are terms which exclude liability for misrepresentation.

For a case where such clauses did not prevent a contract for the sale of land being rescinded for pre-contractual misrepresentation, see Keci v Barnes in the update above to section [4.3].

(especially for n 71) The same principles of interpretation also apply, at least in English law, to resolve uncertainty in the meaning of a settlement agreement ending a dispute. Where the settlement embodies the outcome of a successful mediation, the separate doctrines of ‘judicial proceedings immunity’, the ‘without prejudice’ rule and perhaps a specific ‘mediation privilege’ and duty of confidentiality may all come into play, as well as the terms on which the mediation was conducted: The Pentagon Food Group Ltd v B Cadman Ltd [2024] EWHC 2513 (Comm). Here HH Judge Tindal noted at [37]:

[A]t the end of a day-long mediation, one can hardly expect the same precision in drafting settlement agreements as in detailed commercial contracts. Indeed settlement agreements at mediations are often initially drafted in manuscript and signed there and then. 

This may make the evidential context of the settlement relevant, including statements made during the mediation.

(especially for n 73 in Table 4.1) The Renters’ Rights Bill became the Renters’ Rights Act 2025 (E only) in October 2025. Its s 12 provides for landlords to be required to give information to tenants: the Assured Tenancies (Private Rented Sector) (Written Statement of Terms etc and Information Sheet) (England) Regulations 2026 (SI 2026/324) came into force on 1 May 2026.

(especially for n 73 in Table 4.1) On whether informal exchanges of WhatsApp messages between traders constitutes a signature by one of them, see Jaevee Homes Ltd v Fincham [2025] EWHC 942 (TCC) (Roger ter Haar KC); also Hudson v Hathway [2022] EWCA Civ 1648. And on the existence of WhatsApp records as relevant to deciding whether the parties had made a contract – some issues remaining still to be decided – see DAZN Ltd v Coupang Corp [2025] EWCA Civ 1083, where at [5]ff Popplewell LJ (Arnold and Newey LJ concurring) helpfully summarises how the courts approach issues about the existence of a contract. For the similar position in Singapore – that the parties’ later conduct may be relevant in deciding whether a contract was entered into (especially an oral contract) and, if so, what its terms were – see Kok Kuan Hwa v Yap Wing Sang [2025] SGHC(A) 16 at [37]ff (Ang Cheng Hock J delivering the judgment of the Court).

(especially for n 76 in Table 4.1) Ashdrum Lodge Ltd v Barbouti [2025] IEHC 522 is an object-lesson from Ireland (with copious references to English case law) of what can go wrong with an insufficiently formalised B2C residential refurbishment project. The scope of works (hence the eventual cost) was extended and varied by the employer repetitively and informally. A standard form contract was ‘on the table’, but never agreed between employer and builders, nor were the terms of her architects’ retainer. Her purported termination of both contracts, then excluding builders and architects from the site, led to litigation. The builders’ claims against her (and vice versa) were settled early in the trial; Stack J rejected most of the claims against the architects. Illustrating how little pressure Irish civil procedure puts on parties to move swiftly and limit the issues, the project ran between 2013 and 2017; the architects were joined as third parties in 2020; the trial ran for 32 days (!), with a 200-page judgment in late 2025, not including allocating costs. 

(especially for n 76 in Table 4.1) Do the courts have special interpretive techniques for standard form contracts? In English law, the issue was discussed at length about a JCT Design and Build contract in Providence Building Services Ltd v Hexagon Housing Association Ltd [2026] UKSC 1. Lord Burrows (with whom Lords Reed, Briggs, Stephens and Richards agreed) said at [31]:

[W]here parties choose to use an industry-wide standard form, it can generally be taken that their objective intentions in the relevant context are that their respective rights and obligations should be consistent with those of other parties using the same form and should reflect the objective intentions of those who were concerned with the drawing up of that standard form agreement.

In Beaufort Developments (NI) Ltd v Gilbert-Ash (NI) Ltd [1999] 1 AC 266 (HL), also dealing with a JCT standard form, Lord Hoffmann said at 274: 

It is also important to have regard to the course of earlier judicial authority and practice on the construction of similar contracts. The evolution of standard forms is often the result of interaction between the draftsmen and the courts and the efforts of the draftsman cannot be properly understood without reference to the meaning which the judges have given to the language used by his predecessors.

This was re-affirmed by Lords Hamblen and Burrows (with whom Lords Briggs, Stephens and Doherty agreed) in Great Asia Maritime Ltd v Orion Shipping and Trading LLC [2026] UKSC 23 at [23]. On the other hand, where the parties have changed the words in a standard form, greater weight is ordinarily given to the changed terms, reflecting ‘a presumption that the words specifically chosen by the parties are more likely to reflect their intentions than the words of a standard form which they have chosen to incorporate into their contract’: Khan v Fairmont Homes (NSW) Pty Ltd [2026] NSWSC 770 [59] (Muston J, considering the variations provision in an amended Housing Industry Association contract).

Using even an ‘industry-level’ published standard form does not protect against a challenge at a court or tribunal, especially by a consumer in a B2C context, that one or more of its terms are unfair – unless those terms have statutory status. See further sections [4.10], [4.13.3], [4.14.4] and [4.15.3] in the book and their updates below.

(especially for n 76 in Table 4.1) For a summary of the legal principles which apply where a party argues that an existing contract has been varied (or perhaps replaced), see the judgment of the court (Buss P, Mitchell JA and Vaughan JA) in Mirabela Nickel Pty Ltd v Mining Standards International [2025] WASCA 82 at [180]ff. A party who asserts that a formal agreement has been superseded or varied by an oral agreement – of which there appears to be no documentary record – has a steep hill to climb to persuade a court of this scenario; and a party’s failure to disclose relevant documents may encourage the court to conclude that these would not support their case. An English example is Savva v Cuckoo Hill Ltd [2025] EWHC 286 (Ch), where Master McQuail held that the second defendant failed to show that an oral agreement – allegedly made the same day as the formal sale and payment agreements for the claimant’s house were signed – varied those arrangements, justifying the second defendant’s breaches of their contractual payment obligations.

(especially for n 77 in Table 4.1) On the hard-to-satisfy tests in Australian law for rectifying a written document, especially where solicitors have been involved in the drafting and several versions preceded the final one, see IDP 971 Richmond Pty Ltd v Xerri [2026] NSWCA 89.

(especially for n 82 in Table 4.1) For a helpful discussion about the court’s options when a contract contains two clearly inconsistent provisions, see Sarai v N1 Loans Pty Ltd [2026] NSWCA 107. The contract contained provisions for interest payments both in advance and in arrears. The contract was not void for uncertainty; instead, interpreting the whole agreement, the Court held that the parties intended interest in advance.

(especially for n 83 in Table 4.1) For a more recent restatement of English law’s approach to interpretation of contracts, see Lord Hodge in National Commercial Bank Jamaica Ltd v NCB Staff Association [2024] UKPC 2 at [32]. Common law courts differ in their readiness to consider evidence of the parties’ conduct after the contract was made (or allegedly made) as an aid to interpretation: for the English rule making such evidence inadmissible in relation to a written contract, see L Schuler AG v Wickman Machine Tools Ltd [1974] AC 235 (HL). The situation is more flexible in Singapore: see Lam Kin Hing Kenneth v Yung Man Tung [2026] SGHC 153 at [30]ff (Mohamed Faizal JC); in NZ, see Gibbons Holdings Ltd v Wholesale Distributors Ltd v [2007] NZSC 37, [2008] 1 NZLR 277.

(especially for n 96) The traditional requirements of an offer by one party and a linked acceptance by the other – and the methods by which these events can take place, or be treated as taking place – are not discussed in detail in the book, but have given rise to extensive case law in each of our subject jurisdictions: see the general contract law textbooks referred to in ch 4 of the book. Statutory intervention in this area is rare, except in B2C contexts (including residential construction). The Contract (Formation and Remedies) (Scotland) Act 2026 is one example, giving effect to proposals of the Scottish Law Commission in its 2018 report: n 2 in section [4.1] of the book. In relation to the formation of contracts in Scots law, the new Act includes:

• The requirements for a contract to be formed (for example, the parties agreeing on key matters in the contract, but some matters left unresolved);
• What forms an offer to enter into a contract and when an offer may be revoked by a party (for example, before the other party accepts the offer);
• When an offer may lapse (for example, when there is a change of circumstance, like the person making the offer dying); 
• What constitutes acceptance (the end of the postal rule), rejection or withdrawal of an offer; and 
• The time limits for agreeing a contract.

The Act’s provisions in relation to remedies for breach are summarised in the update below to section [4.16.3].

(especially for n 100) See Andrews & Andrews Construction Pty Ltd v Yao [2025] NSWSC 322 (Stevenson J): an example involving a ‘luxurious waterfront home’ of the disputes which can arise from ambiguities in the wording of the parties’ obligations (here, resting upon a handwritten clause) in relation to ‘cost plus’ arrangements.

(especially for n 101) On courts’ approaches to assertions of oral agreements unsupported by any contemporaneous documentary evidence, following Gestmin, see Turner v Richards [2025] NSWCA 25 (Payne and Leeming JJA, Adamson JA agreeing) at [58]ff; also Savva v Cuckoo Hill Ltd above. Even apparently legitimate contractual documents may be successfully challenged in court if there is no supporting body of drafts, e-mails or other evidence around the process of finalising them: Notus Group Ltd v British Engineering Services Holdco Ltd [2025] EWHC 1391 (Comm) at [192]ff and [246]ff (Judge Bever). 

On the value of contemporary documentation, see also Simetra Global Assets Ltd v Ikon Finance Ltd [2019] EWCA Civ 1413, [2019] 4 WLR 112. Here Males LJ (Peter Jackson and McCombe LJJ concurring) said at [48]: 

I would say something about the importance of contemporary documents as a means of getting at the truth, not only of what was going on, but also as to the motivation and state of mind of those concerned. That applies to documents passing between the parties, but with even greater force to a party's internal documents including e-mails and instant messaging. Those tend to be the documents where a witness’s guard is down and their true thoughts are plain to see. Indeed, it has become a commonplace of judgments in commercial cases where there is often extensive disclosure to emphasise the importance of the contemporary documents. Although this cannot be regarded as a rule of law, those documents are generally regarded as far more reliable than the oral evidence of witnesses, still less their demeanour while giving evidence. 

By contrast, in Toppan Holdings Ltd v Augusta 2008 LLP [2025] EWHC 1691 (TCC), a building defect case, Martin Bowdery KC (as judge) said at [21]: ‘A dogmatic preference for documentary evidence over witnesses’ recollections of what was said and was done is unhelpful’. But on the dangers of a judge over-relying on a witness’s ‘demeanour’ in court, see Toppi v Toppi (No 3) [2025] NSWSC 733 at [19] (McGrath J), also referencing Gestmin. For an example of the difficulty of proving a purely oral contract, see Singh v Bains, summarised in the update to section [9.8] below. Similar difficulties will face a party seeking to argue that a written contract has been varied, but only orally; or that a purely oral contract collateral to the written one has been entered into: see Ever Strategy Consultants Ltd v PSA International Pte Ltd [2026] SGHC 76 (Chua Lee Ming J).

(especially for n 128) For a discussion from Singapore of ‘economic duress’ and undue influence, as factors vitiating a party’s consent to a contract, see Oon Swee Gek v Violet Oon Inc Pte Ltd [2024] SGHC 13, [2024] 6 SLR 313 (Philip Jeyaratnam J) at [49]ff.

On the scope of ‘duress’ in the Australian law of contract, with references to the concept of unconscionability under the ACL, see SHRL Ventures Pty Ltd v Pedro-X Pty Ltd [2026] QCA 119 at [69]ff (Doyle JA giving the judgment of the Court).

(especially for the main text to n 131) On implying a term of Type 2, a useful reminder of the principles comes from the Singapore High Court in Feida Bus Consortium Pte Ltd v Royal Autoz Exporter Pte Ltd [2025] SGHC 141. At [49] Christopher Tan JC quoted from the Court of Appeal in Sembcorp Marine Ltd v PPL Holdings Pte Ltd [2013] SGCA 43, [2013] 4 SLR 193 at [101]:

[T]he implication of terms is to be considered using a three-step process:

(a) The first step is to ascertain how the gap in the contract arises. Implication will be considered only if the court discerns that the gap arose because the parties did not contemplate the gap.

(b) At the second step, the court considers whether it is necessary in the business or commercial sense to imply a term in order to give the contract efficacy.

(especially for n 144) For a summary of how each state and territory regulates ‘sunset clauses’ in off-the-plan purchases, see Lottie Twyford, ‘Sunset Clause Laws Differ Around the Country. Here's What They Are and When They Can Be Used’ ABC News (12 October 2025). For litigation in Qld against a developer claiming (unsuccessfully) to have activated the sunset clause, see Malligan v Chevron Apartments Pty Ltd [2026] QSC 195 Freeburn J decided the case primarily on basic contract law principles, including that a party (the developer) should not benefit from its own failure to fulfil a contractual obligation, though Qld’s statutory consumer protection for off-the-plan purchasers is also mentioned https://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QSC/2026/195.html.

(especially for the main text to n 151) For an example of a completely oral agreement under which the homeowner appointed a firm of structural engineers for a basement project, see Martell v Roszkowski [2024] EWHC 840 (TCC) (Judge Sarah Watson). The main contractor paid the engineer £10,000 (first disclosed in court) for recommending them to the client; and for being available to assist with enquiries during the project. The engineer also expected any quotation from the main contractor to the client for extra items to include a percentage for the engineer’s firm. In court – where both the engineers and the main contractors were found liable for aspects of the defective work – the impact of the engineers’ taking the ‘kickbacks’ and failing to disclose them on their potential liability was not a live issue. Even a published standard form contract appointing a professional will not necessarily include a ‘no conflicts of interest’ or ‘no other financial interest in the project’ clause. A similarly complex and expensive piece of litigation took place in BPL Contracts (Scotland) Ltd v Beattie FRC Ltd [2026] CSOH 22 (Lord Ericht), about B2B oral subcontracts for a harbour reconstruction project. The parties accepted that they had agreed to share the reward 50/50, but it was unclear to what figure the split related. 10 days in court were necessary, including 15 witnesses of fact and two experts.

For another example of the dangers of a ‘handshake’ agreement – here for a B2C new home project costing over £1m – see RBH Building Contractors Ltd v James [2025] EWHC 2005 (TCC) and its sequel in the Court of Appeal, discussed in the update below to section [9.9.5]. 

(especially for the main text to n 152) For a B2B construction contract where no completion date was set, see XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133, discussed in the update below to section [4.12.4].

(for n 153) An interesting application of the prevention principle (not in the class construction law pathway of rendering time ‘at large’ and LDs therefore unenforceable) came in Lee v Big Dipper Constructions Pty Ltd [2026] NSWDC 43, Weber J finding that the owner was precluded from relying upon its own wrong (denying ‘the builder’ access to the site) for a right to move to terminate the builder’s engagement.

(especially for n 154) The UK Supreme Court in King Crude Carriers SA v Ridgebury November LLC [2025] UKSC 39 had to consider the status in English contract law of a doctrine established in the House of Lords in Mackay v Dick (1881) 6 App Cas 251, a Scottish appeal. Here Lord Watson held that there is a principle (or rule, or doctrine) of law that, where a party wrongfully prevents the fulfilment of a condition precedent (ie a pre-condition) to that party’s debt obligation (in that case, to pay for goods being bought), that condition is treated as being fulfilled, triggering an obligation to pay the price agreed (rather than the other party having to sue for, and prove, damages). But in the new case Lords Hamblen and Burrows (with whom Lords Reed, Hodge and Stephens agreed) accept that Scots law may differ, holding that Lord Watson’s approach is not, and should not be, part of English law, which has no overriding principle that a party may not profit from its own wrong: 

[68] ... Subject to terms to the contrary, where a condition precedent has not been fulfilled because of the debtor's breach of contract, that breach is appropriately and adequately dealt with in English law through the claimant’s remedy in damages. Those damages aim to compensate the claimant by putting it into as good a position as if the contract had been performed, subject to limitations such as mitigation and remoteness.

For an English judge making a distinction between a breach of contract which may disallow the guilty party from terminating the contract and a situation where a contract party prevents fulfilment of a condition precedent (reached before the UKSC in King Crude above), see Leech J in Henley Developments 211 Ltd v Weston Homes PLC [2025] EWHC 3200 (Ch).

If a contract expressly contains provisions about when and how one party may terminate it, a court may conclude that these replace, rather than adding to, the default common law right to terminate which that party otherwise would enjoy: see the update below to section [9.2.4]. Unless the contract lays down more precise conditions, the courts may imply a term that a party given a discretionary contractual power must exercise this reasonably, superimposing obligations analogous to those resting on a statutory decision-maker in public law. For an example from Queensland about the buyer of land purportedly terminating the purchase contract and the status of the deposit already paid, see Brades Property Agnes Water Pty Ltd v Skyrock Sun Pty Ltd [2026] QCA 141 (Kelly J, with whom Mullins P and Boddice JA concurred). The court interpreted a condition in the contract that the buyer was to be ‘satisfied’ about the planning position as ‘reasonably and honestly being satisfied’ – a test the buyer passed, so could retrieve the deposit.

In English law, the recent origin of such debates about contractual discretions is Braganza v BP Shipping Ltd [2015] UKSC 17, considered in Ireland in Start Mortgages DAC v Simpson [2026] IECA 67; and in Singapore in Shipworks Engineering Pte Ltd v Sembcorp Marine Integrated Yard Pte Ltd [2026] SGHC(A) 22 at [226]ff (Kannan Ramesh JAD delivering the judgment of the court), also Deutsche Bank AG Singapore Branch v ARJ Holding Ltd [2025] SGHC 163 (Kwek Mean Luck J, whose decision was affirmed in 2026 by the Appellate Division), though the judge also rejected the general applicability of ‘good faith’, of which this implied term is sometimes treated as an expression. In NSW, where good faith has a firmer hold than in English or Irish law (or most other Australian jurisdictions), such limits on contractual discretion were held to apply to the termination provisions in a B2B construction contract: see Renard Constructions (ME) Pty Ltd v Minister for Public Work (1992) 26 NSWLR 234. See Sean Wilken KC (Keating Chambers), ‘A Constraint on or Protection from the Exercise of Contractual Discretions? Braganza Revisited’. On the broader ‘good faith’ debate, see n 53 in section [4.4.4] of the book. 

(especially for n 193) The legal impact of ‘temporary disconformity’ is not uniform across the common law, appearing not to be part of NSW law: see Neale v Westacres Property Consultants Pty Ltd [2026] NSWDC 209 at [24]ff (Judge Weber SC). On this case, see also the update below to section [9.2.4].

On retentions: the Fabian Housing Centre research report On The Ladder (July 2026) argues for a mandatory 5% retention on all sales of new homes in GB for the first three months. On reform of retentions in UK construction contracts, see also the update above to section [1.4.2].

(especially for n 195) On the effect (here, enforced) of clauses ‘deeming’ practical completion where the owner has occupied the site without ‘the builder’s’ permission: A & L Builders Pty Ltd v Porter [2026] QCAT 118 [75].

(especially for n 199) The opposite of a retention is an advance payment by employer to builder – much rarer in practice, and for good reasons. Such payments expose the employer at an early stage to the potential insolvency of the builder. Even without this, advance payments can become problematic in relation to the contract’s other provisions for remuneration: about a high value B2C home refurbishment contract in London NW8, see Westgreen Construction Ltd v Kiryukhina [2026] EWHC 2189 (TCC) (O’Farrell J).

(especially for the main text to n 203) Where terms are implied by statute as a default, the parties being permitted to ‘opt out’, Paul MacMahon (LSE) points out in a LinkedIn post (November 2025) that courts and judges require clear words to achieve this, since it will deprive one party of rights otherwise theirs. A recent example in a B2B context relates to the English Sale of Goods Act 1979, whose s 14(2) requires goods to be of satisfactory quality – the same term is also implied into contracts for the supply of goods. When the contract provided that the seller ‘gives no other warranty or guarantee express or implied, including (without limitation) any warranties [of] merchantability or fitness for a particular purpose’, was this effective to exclude s 14(2)? (In English law, ‘merchantability’ is the pre-1995 equivalent of ‘satisfactory quality’). The Commercial Court (Nigel Cooper KC as a Deputy Judge of the High Court) held these words not incorporated into the contract; perhaps surprisingly, if they had been, they would not have been clear enough: Tullow Ghana Ltd v Vallourec Oil and Gas France SAS [2025] EWHC 3059 (Comm) at [132]ff. The international legal context meant that the ‘opt-out’, if successful, would not also have to meet the reasonableness standard of UCTA 1977; if the contract had been B2C and already subject to the law of any part of the UK, then the consumer could challenge such a term as unfair: see section [4.10] of the book and its updates below.

In relation to service contracts (the main text to n 206), the factual difficulty of applying the CRA 2015 s 49 ‘reasonable skill and care’ standard to a kitchen refurbishment project is illustrated by Gillies v Baptie [2025] SC HAM 80 (Sheriff J Speir). In 2025 the Irish Competition and Consumer Protection Commission published The Consumer Rights Act 2022 – A Guide for Traders: Consumer Remedies in Service Contracts. This includes worked examples: ‘Carpenter Can’t Begin Job At Agreed Time’; and one where a trader who installed defective slabs on a customer’s patio wanted to be paid extra for replacing them.

A revised and simplified version of the HHSRS (21 hazards rather than the original 29, and three bands for scoring results) came into force in June 2026 under the Housing Health and Safety Rating System (England) (Amendment) Regulations 2026 (SI 2026/571), with new guidance published alongside. The original version of the HHSRS system appears still operational in Wales, alongside the Renting Homes (Fitness for Human Habitation) (Wales) Regulations 2022 (WSI 2022/6).

(especially for the main text to n 224) For reasons of resources and finance, few local authorities in England take formal action against private sector landlords for housing defects (civil penalty notices, prosecutions and in the worst case banning an individual or entity from acting as a landlord). Based on responses to freedom of information requests, Matthew Pearce in The Guardian (16 November 2025) reported: ‘Two-Thirds of English Councils Have Not Prosecuted a Single Landlord in Past Three Years’. Although Government committed £18m to help councils in England prepare for their new powers under the Renters’ Rights Act 2025 s 107ff, together with a duty to enforce housing standards, this may not guarantee adequate enforcement, which would also require councils to attract and retain new staff in the field. Enforcement may be assisted by the new duty on private sector landlords – coming into force by English region in 2026-2027 – to register their identity and rented properties under pt 2 of the 2025 Act. Failure to register itself gives rise to potential penalties. For a pre-Renters' Rights Act case study of enforcement failing (so far) to dismantle a rental property portfolio built on illegality, see Andrew Kersley, ‘How a Rogue Landlord Built an Empire in London’s Poshest Streets’ The Londoner (15 November 2025); see also the update above to section [1.3].

For the first regulations implementing ‘Awaab’s Law’, see the Hazards in Social Housing (Prescribed Requirements) (England) Regulations 2025 (SI 2025/1042), under ss 10A(3) and 10B of the Landlord and Tenant Act 1985. Alongside, the MHCLG published Awaab’s Law: Draft Guidance for Social Landlords (June 2025) and a more general Guide to the Renters’ Rights Act (November 2025). The first aspects of ‘Awaab’s Law’ came into force on 27 October 2025, in relation to emergency hazards and significant damp and mould; Phase 2 comes into force on 30 November 2026, newly covering excess cold, excess heat, falls, structural collapse, fire and explosion risk, electrical safety, domestic hygiene, food safety, and personal hygiene, sanitation and drainage. There is guidance on the draft Social Housing (Prescribed Requirements) (England) Amendment) Regulations 2026 (July 2026). Similar regulations will apply in Scotland to both social and private tenants, via the Investigation and Commencement of Repair (Scotland) Regulations 2026 (SSI 2026/173), coming into force on 6 October 2026.

In July 2025, the UK Government published Consultation on a Reformed Decent Homes Standard for rented homes (in England alone). It notes that 10% of homes in the Social Rented Sector, and a staggering 21% of homes in the Private Rented Sector, fail to meet current (2006) standards of decency – needing modernising and expanding. The proposed new Standard will explicitly require freedom from damp and mould, along Awaab’s Law (above) lines. When the Renters’ Rights Act 2025 gained Royal Assent on 27 October 2025, this made possible application of the current (and eventually updated) Standard to the private rented sector (England only) for the first time. In January 2026 the definitive new Standard was announced, which private landlords will also need to comply with from 2035.

(especially for n 231) For a useful discussion of the scope of UCTA 1977 in allowing challenges to contractual clauses, in the context of misrepresentation in relation to a B2B sale or lease of land and attempts to limit liability for that via a ‘no reliance’ clause, see First Tower Trustees Ltd v CDS (Superstores International) Ltd [2018] EWCA Civ 1396. The landlords incurred liability for a misrepresentation about the presence of asbestos in the property, having first said in response to the would-be leaseholders’ pre-contract enquiries that they were unaware of any such problem, then failing to pass on to the would-be tenants a report later received disclosing the presence of asbestos, in breach of an undertaking to do so.

(especially for n 249) In July 2026, the CMA published its revised edition of Unfair Contract Terms: Guidance (CMA37) and other linked documents.

(especially for n 260) The principle that, at common law, a contract party may be bound without necessarily knowing (or reading) the contract’s terms, if their intention to be bound can be shown (eg by a signature), as in Toll (FGCT) Pty v Alphapharm Pty Ltd [2004] HCA 52, (2004) 219 CLR 165, has been confirmed and applied by Brown JA (giving the judgment of the Court) in Mukerji v Commonwealth Bank of Australia [2025] QCA 226 at [62]: 

[I]t is sufficient for a party to be legally bound if a party intends to sign a document and enter into legal relations. [T]hey will be bound to the terms of that contract even if they are not aware of those terms, whether it is because of their failure to read the terms or conditions or failure to obtain them beforehand. That is a matter which is determined objectively.

(especially for the main text to n 275) Correction: in the sentence leading to the footnote reference: ‘scare’ should be ‘care’ (!)

(especially for n 285) The Law Society of Ireland and the Construction Industry Federation have published a new Combined Building ‎Agreement/Contract for Sale 2026 (not generally accessible online) for use in new residential estates (houses and apartments). Its use is recommended from 1 February 2026 but not mandatory.

The reasonableness of the damages claimed: in URS v BDW [2025] UKSC 21, the Supreme Court made clear that money spent ‘voluntarily’ on remedying a defendant’s breach of duty may be recoverable, provided the claimant already has a usable right of action and they have acted reasonably: see further the update below to section [5.3.2].

Mitigation of losses: if the innocent party in a breach of contract is able by its own actions to reduce what it costs to have the contract performed, can they still claim as damages what it would have cost in ‘the market’ (in a home construction context, employing a new builder to complete the job or rectify defects)? In a B2B sale of goods context, the Singapore High Court (Choo Han Teck J) held that only losses actually incurred could be claimed: Shri Bajrang Power and Ispat Ltd v Steel Corp Ltd [2025] SGHC 107.

In a construction context, the contract (especially a published standard form) may create a defined ‘defects liability period’ (or functional equivalent) after practical completion, during which ‘the builder’ has the right to return to site and a duty to rectify defects notified by the employer. If the contract provides that this work is at the builder’s expense, the cost to the builder may be zero, if they can pass liability ‘down the line’ to a sub-contractor. In such a legal context, if the employer prevents the builder from rectifying, the damages recoverable are no more than what it would have cost the builder to do the same work: for a B2C example and the JCT Minor Works form, see Pearce & High Ltd v Baxter [1999] EWCA Civ 789, [1999] BLR 101, 66 Con LR 110; on similar issues in another B2C new home case, see Iggleden v Fairview New Homes (Shooters Hill) Ltd [2007] EWHC 1573 (TCC) (Judge Peter Coulson QC). On ‘defects correction periods’ and similar, see also section [10.1.2] of the book.

(especially for the main text to n 307) It will not reduce the damages payable for a wrongdoer to show that there was an alternative way to deal with the breach; and the courts’ do not expect the innocent party to take any risks in order to mitigate: United Overseas Bank Ltd v Lippo Marina Collection Pte Ltd [2025] SGHC 232 at [40]ff (Aidan Xu J @ Aedit Abdullah J). The impact of failure to mitigate applies equally to claims for damages framed in tort as to those in contract, and for financial losses – as in this Singapore example – as well as more tangible forms of harm.

(especially for the main text to n 318) If a court grants an order for specific performance of an existing contract, can the party which has successfully sought the order, if the order’s terms are not complied with, terminate the original contract and claim damages instead? Under what conditions? Baeg v Wink Singh Pty Ltd (No 2) [2025] NSWSC 873 was in a sale of land context; when the buyer (and their guarantor) failed to comply with a court-imposed deadline for completion, the seller then purported to ‘terminate’ the contract and claimed damages for breach. McGrath J said [authorities omitted]:

[68] Once an order for specific performance has been made, the contractual rights and obligations of the parties are not superseded, but the future exercise of rights and performance of obligations fall under the control of the court. That is the very nature of the remedy ...

[79] ... (1) By electing to bring an action for specific performance of a contract, a party has not irrevocably abandoned their common law rights in respect of damages for breaches of that contract, both past and future.

(2) While those proceedings are maintained, or after an order for specific performance has been made, that contract can be terminated by one party by accepting the repudiation of the other but only with the court’s leave or vacation of the order of specific performance. It is the order of the court, or something by authority of the order, that operates to terminate the contract.

1. the building work the plaintiff seeks to enforce performance of is defined by the contract

2. the plaintiff has a substantial interest in having the contract performed which is of such a nature that it cannot be adequately compensated for breach of contract by damages; and

3. the defendant is in possession of the land on which the building work is contracted to be done.

Holding that only the third of these was satisfied, damages remained an adequate remedy. In the background, it was evident that trust between builder and client had broken down.

Other aspects of the court’s discretion may be in play where a contract party seeks an injunction to prevent the other party terminating the contract (in effect compelling continued performance of the contract). As with a request for specific performance, the court will wish the obligations to be precise enough to avoid it being drawn into ‘constant supervision’: see Attiwill J in Fonterra Australia Pty v Platt [2025] VSC 608.

(especially for the main text to n 327) On contempt of court as the sanction for failure to comply with a court order in a civil case, in November 2025 the Law Commission (E&W) published Part 1 of its review of the field (Law Com No 423), proposing reform of the basic principles of liability. Meanwhile the Court of Appeal (E&W) held that it was not contempt of court to act contrary to the ‘purpose and spirit’ of an injunction, without being in breach of its terms: FW Aviation (Holdings) 1 Ltd v VietJet Aviation Joint Stock Company [2025] EWCA Civ 1458 (Males LJ, Falk and Baker LJJ concurring).

Mortgage offers and delayed completion of new build homes: the UK consumer group the HomeOwners Alliance reports (2026) that lenders often impose lower limits on the amount they are prepared to lend on a new build than on an existing home. The loan-to-value ratio for new build mortgages is also often tiered: lenders will lend less towards a new build flat than a new build house. Most mortgage offers are only valid for a maximum of six months, so a well-advised buyer will attempt to get a ‘not later than’ completion date, ahead of their mortgage offer expiring. However, some lenders offer new build mortgages with a longer validity period: specialist mortgage brokers can advise about such products.

(especially for n 148) An intending buyer who defaults on completion, following a drop in the value of the home and the unavailability of adequate finance, may even be sued by the developer for the difference between the agreed price and the lower price subsequently achieved at re-sale, as well as any legal fees incurred.

(especially for the main text to n 220) On the meaning of ‘unfit for human habitation’ under the Landlord and Tenant Act 1985 (E&W) ss 9A and 10, see Harvey v Heaver [2026] EWHC 1671 (KB).

(especially for n 226) On gas safety certificates and statutory protection for tenants, see now Muca v El Amrani [2026] EWCA Civ 515 (in 2026 potentially on its way to the Supreme Court with Harvey v Heaver, but the key landlord’s statutory power to give notice to quit came to an end under the Renters’ Rights Act 2025).

In URS v BDW [2025] UKSC 21, the leading judgment of Lords Hamblen and Burrows (with whom the other Justices agreed) considered mitigation at [60], in relation to arguments from the defendant builders that the claimants could not claim the cost of remediation work they had undertaken ‘voluntarily’: 

The enquiry in respect of mitigation is whether the claimant could have avoided its loss by taking reasonable action or whether expenses (or other additional losses) incurred, increasing its loss, were reasonably incurred. That is clearly a fact-specific enquiry that would have to await trial. The reasonableness of the claimant's conduct may also be of importance in determining legal causation and, even if not, it would appear that a fact-specific enquiry would be needed in order to decide whether the ‘chain of causation’ between breach of duty and loss has been broken. 

If the construction employer is directly in contract with – or has the ability to claim in contract against – ‘the builder’, and if that contract contains a ‘defects correction period’ (or equivalent), an unhappy construction employer should trigger the procedures laid down within the prescribed period: see further section [10.1.2] in the book. The contract may attempt to bar any complaints not notified during that period, though this could perhaps be challenged as an unfair contract term, especially in a B2C context; it may have no impact on claims brought on a different legal basis.

If the contract contains no formal defects correction period, for the impact on the construction employer’s remedies of failing to give the builder a chance to remedy defects (including refusing the builder’s offer to do so), if this would have been reasonable (not just ‘an empty promise’), see also Ceerose Pty Ltd v Owners of Strata Plan No 89074 [2025] NSWCA 235 (Brazis v CustomBuild Group Pty Ltd [2026] VCAT 441 providing an example of where the owners were not unreasonable in not having the builder rectify defects – they had ‘lost confidence in the builder’); and Bata v Pathik [2026] VSCA 148.

For a restatement of the available heads of damages for defective or incomplete construction in English law, see Wilson v HB (SWA) Ltd [2025] EWCA Civ 1360, summarised in the update below to section [5.5.2]. 

For a claim by the first buyer of a new home, nine years ago, against its high-profile national developer – a rare B2C construction case to get to trial – see Mallas v Persimmon Homes Ltd [2025] EWHC 2581 (TCC). The Court’s main task was to determine what was necessary to ‘fix the work so that it achieves the contractually agreed outcome’ – as agreed in the developer’s standard form contract (a parallel claim under the DPA 1972 s 1 led to the same result). The developer admitted failure to meet either goal, caused by under-design of the foundations for London clay, potentiated by the removal of mature trees close by. 

Evidenced by extensive and ongoing cracking and gaps inside the house, with doors binding, both sides agreed that the house needed additional and different foundations to protect against further differential movement, to be installed by underpinning (the developer not arguing for the chance to do the work itself). The buyer also wanted the whole prefabricated timber-framed superstructure replaced, but at [33] the judge (Alan Bates) held that extra damages on this basis would be disproportionate: ‘it is unlikely to be reasonable to demolish a house simply because there is some degree of risk that it may be subject to some defect or damage that has not yet been discovered’. 

Adding the cost of alternative accommodation during remediation and £10,000 as ‘general damages’ (for anxiety etc) gave a provisional total of over £400,000, but the costs were likely to come close: five hearing days, involving five expert witnesses. For examples of courts or tribunals awarding the cost of demolition and rebuilding, see Case Study 2 at section [2.9] in the book and its updates above.

(especially for the main text to n 337) If a construction contract has a fixed completion date, which a consultant’s faulty designs cause to be missed, the quantum of damages payable – assuming liability is established – will be the cost of re-doing the designs, but can include the extra interest payable by the claimant developer, if reasonably foreseeably caused by the resulting 18 months delay in being able to sell the completed homes: Harvestfield Holdings Ltd v McIntyre [2026] NZHC 1019 (Andrew J).

LDs and a completion date: in XJS World Pty Ltd v Central West Civil Pty Ltd [2025] NSWCA 133, the NSW Court of Appeal upheld the finding at trial that the parties’ failure to insert a completion date in a standard form meant that LDs (set at A$1,000/day) could not be levied. Kirk JA observed at [36]: ‘[i]f the parties choose not to complete those details then they are choosing not to activate those provisions of the contract.’

‘The alternative [to LDs] – liability for breach defined only by the general law of contract’: English law seems to permit not just either/or but both. The contract may provide that the innocent party is entitled to both LDs and damages under the general law for culpable delay, though this combination could be very onerous on the party in breach. The contract in Pharos Offshore Group Ltd v Keynvor Morlift Ltd [2025] EWHC 1764 (TCC) adopted this approach.

A commonly adopted way of defining LDs uses a percentage of the contract price per day, rather than a defined monetary sum. Carefully choosing the right percentage for the impact of delay on the employer for the specific project is often overtaken, for ‘repeat players’, by ‘the percentage we always use’ or ‘the percentage we used on the last project’ – an arbitrary figure which fails to be a genuine pre-estimate of that loss.

(especially for n 356): In Capitol Constructions Pty Ltd t/as Vogue Homes v Khosravi [Capitol Constructions Pty Ltd t/as Vogue Homes v Khosravi [2026] NSWCATCD 68, H Woods SM found that nominating as LDs ‘A$.00’ was to be read as ‘A$1’ (via a note in the contract that ‘if nothing stated, $1’) and therefore to not override the right to general damages for delay ([119], [126]) but that, ‘A$50’ under a different contract was ‘an amount of some substance’ so overriding general damages ([127]). 

(especially for the main text to n 377) Later cases in E&W have applied one of the Makdessi tests to assess the validity and enforceability of contractual provisions imposing payments in case of breach: ‘what would an objective party have thought at the time the agreement was entered into?’. In Houssein v London Credit Ltd [2026] EWCA Civ 830, Lewison LJ (with whom Newey and Armold LJJ agreed) refused to label the default rate of interest on a secured loan (3% above the interest rate for the loan itself) as a penalty. For closely similar issues in Australia, but where the default rate was struck down, see Blackbird First Mortgage Corporation Pty Ltd v CAM Engineering & Construction Pty Ltd [2026] NSWSC 876; Muston J applied the summary of the relevant principles in Australian law – close to the pre-Makdessi situation in English law – from Rees J in Crescent Capital Ltd v Chanine [2026] NSWSC 371 at [4]-[11]. For the situation in Ireland, see the update below to section [4.15.4].

(especially for the main text to n 380) For other legal challenges to private parking operators, see the update below to section [6.2.2].

Fraser Lyne Constructions Pty Ltd v Waba [2025] NSWSC 600 illustrates the need, in a residential construction context, to analyse in detail whether a contract has been repudiated or mutually abandoned. Peden J concluded at [48], after assessing the evidence, that the parties had conducted themselves in a manner ‘more consistent with an agreement to terminate’. On routes to termination, see also the update below to section [9.2.4].

In Hale Corp Pty Ltd v Ng [2026] VSC 492, Stynes J undertook an extensive consideration of a raft of contract-related claims arising from a home worth more than A$6 million on the outskirts of Melbourne. Her detailed analysis of ‘the builder’s’ lost opportunity damages (concluding at [915]) emphasises that there is no one method of calculating the damages and therefore the importance of weighing up the various competing experts’ estimates of the cost of completion and other matters.

Hsieh v Dreamhome Construction Group Ltd [2025] NZHC 1643 (Gardiner J) provides a striking reminder of the risk which the contractor takes on – here, including in relation to prior work and delays – under a lump sum contract, in the absence of contractual relief. An indicative passage from her judgment is at [39] (citations omitted):

The common law requires a contractor under a fixed price contract to carry out not only the work expressly contracted for but all the work necessary to construct that work. Moreover, a builder takes the works as they find them and, in the absence of express terms stating otherwise, the contractor takes the site ‘as is’ and is responsible for all work necessary to complete the contracted work. 

Atlanta Building Pty Ltd v Abela (No 3) [2025] NSWSC 730 (appeal dismissed - [2026] NSWCA 126) provides a useful example of a court (Peden J) being willing to allow a builder to recover extra costs, on a restitutionary basis, for work done after accepting the owner’s repudiation: see [71]. Other notable aspects of the case include her order, in the face of legal costs running to hundreds of thousands of dollars on a claim for perhaps A$200,000, that the solicitors for the parties deliver affidavits that they had explained the legal costs to their clients.

For a concise statement of it being a precondition to a restitutionary claim (including for quantum meruit) that there is no enforceable contract under which the relevant work is being done, see Elrob Construction Group Pty Ltd v Haddad [2025] NSWDC 380 at [70] (Cole J): 

[G]iven that the contract has not been discharged and there has been no suggestion that it has been frustrated or avoided or has become unenforceable, [the contractor’s] claim in quantum meruit … must fail.

The Victorian Court of Appeal (McLeish, Lyons JJA and Nichols AJA) in Singh v Ozzie Homes Building & Construction Pty Ltd [2026] VSCA 25 disallowed a quantum meruit claim which had been granted to the builder at trial, largely on the basis of the particular facts (which included that the builder had not in fact reached ‘lock up stage’). The Court concluded at [152] that there was ‘nothing unjust or unconscionable in the owners retaining the benefit of the work without payment for its value’. In AMO Rifat Holdings Pty Ltd v Dib [2026] VSCA 124 (Niall CJ, Beach and Donaghue JA) the Court rejected the builder’s attempt to appeal from VCAT, which had rebuffed its claim for a post-termination restitutionary quantum meruit because evidentially the builder did not separate work it was already entitled to be paid for contractually from work on incomplete stages. The case was complicated by the impact of an A$110,000 cash payment ‘side agreement’ between the builder and the individual employers – void under the Domestic Building Contracts Act 1995 s 40 (Limits on Progress Payments); the Court of Appeal ordered the builders to refund the employers the amounts paid in reliance on that agreement.

Conversely, where the parties agree (or the court or tribunal holds) that there was a contract between employer and main contractor for the project in question, but no adequately precise arrangements made for remuneration, a claim for payment is via an implied term that a reasonable sum would be paid for work actually done (sometimes also called contractual – not restitutionary – quantum meruit). 

Assessing what the builder had in fact done (where challenged, the builder has the burden of proof) and what was a reasonable sum for each of those activities was the central issue in E-Tech Building Services Pte Ltd v Foreign Domestic Worker Association for Social Support and Training (FAST) [2026] SGHC 12. This involved a meticulous line-by-line examination of the plaintiff’s claim. 

At [101]ff, Christopher Tan J disallowed a claim for a 15% markup on what the builder was otherwise owed, for ‘profit, attendance and project management’. This was not as a matter of law (as the defendants argued), but in the light of the work it actually did, at [115]: 

The precedents show that if a plaintiff makes a claim in contractual quantum meruit for a fee that is quantified as a margin of a base figure, that claim may be rejected if there is a complete dearth of evidence to assist the court as to what a reasonable margin would have been on the facts’. 

He also noted at [82] that the plaintiff’s documentary records were ‘in shambles’; this counted against them where proof was inadequate, and would do so in the eventual post-trial costs order, reflecting unnecessary court time wasted on evidential issues. See also 33Club Pte Ltd v Design Cliniq Pte Ltd [2026] SGHC 39 (Mohammed Faizal JC).

The possibility of making a claim on a restitutionary basis may be excluded if the activity is regulated by statute and the statute takes priority over the common law position, eg by providing a exclusive regime of sanctions or by excluding the possibility of payment for a situation failing to comply with the statute – as in some Australia states for ‘domestic’ building situations if the builder fails to meet the statutory information requirements: see section [4.13.4] of the book. On the broader issue, in this case about fees payable for legal services whose cost had not been independently certified, see Gray v Lavan [2025] HCA 42.

On the dangers (here, for ‘the builder’) of a building contract being ‘entire’, in GDS Building Services Pty Ltd v GB Built (Qld) Pty Ltd [2026] QCAT 192, a roofing contractor was entitled to nothing on an agreed lump sum of about A$62,000 (and, to add insult to injury, had to pay the owner around A$35,000 for another contractor’s rectification work) because it did not finish the work (the Tribunal indicates that the contractor may have availed itself of rights under the Qld security of payment legislation or to a quantum meruit but failed to pursue these). 

(especially for n 406) The Domestic Building Contracts Amendment Bill 2025 (Vic) passed the Victorian Parliament on 11 September 2025. The Act is progressively coming into force by Proclamation during 2026-7 with a final date of 31 March 2027 for it to be fully in force (shifted from 1 December 2026 by s 178ZL of the Consumer Legislation Amendment Act 2026 (Vic)). 

(especially for the main text to n 412) Western Australia has launched a review of its statutory and regulatory structures for building (August 2025): the Cook Labor Government is inviting homeowners and the building industry to be part of the review of WA’s home building contract laws. Builders and owners with recent experience in building or renovating their home were encouraged to participate in a survey to share their valuable insights and have a say on any improvements to the legislation. The review’s terms of reference cover the Home Building Contracts Act 1991 (WA) (except Part 3A); and the dispute resolution/complaint process in Parts 2 and 3 of the Building Services (Complaint Resolution and Administration) Act 2011 (WA). This produced a Discussion Paper (June 2026) summarising the Review’s key reform proposals, to be finalised and presented to Government later in 2026.

(especially for the statutory warranties outlined in Table 4.2) The requirement to proceed with ‘reasonable diligence’ (QBCCA sch 1B s 25) was considered in the context of a kitchen project; Roney M found ‘the builder’ had acted with such a lack of diligence that it amounted to repudiation justifying the owners’ termination (and a significant rectification defects award): Dias & Butcher v Dale Hassam trading as Richters Kitchen and Glass [2026] QCAT 113 [111].

On the ACL ss 60-61 service guarantees, see the update below to section [8.7] below (Shannon v Residential Reports). 

(especially for n 418) The Owners – Strata Plan No 87231 v 3A Composites GmbH [2026] FCA 351 – supplemented by a judgment at [2026] FCA 608 setting out answers to ‘common questions’ so as to resolve the ultimate form of orders – (both, Anderson J) is a striking example of an attempt – in the end, unsuccessful – by owners of residential units in two NSW developments to rely on the ACL ss 54 (quality) and 29/33 (misleading conduct in advertising and promoting a product: see section [6.3.2] in the book) and its predecessor the Trade Practices Act against the German manufacturer and Australian supplier of two versions of Alucobond ACP cladding (PE and Plus). 

After 15+ hearing days (some members of the seven groups of experts earlier gave evidence in London to the GTI), the judgment tells how the two products had been specified and installed. The one with the higher polyurethane content had already been replaced at the owners’ cost under a Rectification Order from the local Council, having been banned in NSW (then also under the Building Code of Australia). These owners claimed their incurred inspection and rectification costs, plus higher insurance until the work was complete, for which the manufacturer (as defined) would have been liable under the ACL s 271, as carrying on business in Australia. The other development’s owners, unable yet to finance the work, despite assistance from NSW’s Project Remediate (see section [10.5.7] in the book) and pressure from the local Council, were suing primarily for the future remediation costs of their building. For a summary of the 20 legal issues before the Court – including limitation questions – see the table at [132]. 

The many threshold issues about the applicability of the ACL and TPA to the relations between respondents and applicants included distinguishing the NZCA approach to a cladding claim – also against manufacturer 3A – under the more narrowly drafted Consumer Guarantees Act (NZ): see Body Corporate No DPS 91535 [2023] NZCA 647 (the failed appeal to the NZSC is noted at n 521 in section [4.14.3] of the book). 

Anderson J held that the cladding was ‘a supply of goods’ to the developers, ‘of a kind ordinarily acquired for personal, domestic or household use or consumption’ within the TPA and ACL; the individual unit owners and the Owners Corporations thus qualified as ‘affected persons’, deriving title from the developers. On the first substantive claim (quality), the judge concluded that neither product of itself – however installed - created a material risk of fire enough to fail the statutory test of acceptable quality; nor did their use necessarily fail to comply with the Building Code by creating ‘an undue risk of fire spread’. At [1351]ff, he held that the products were ‘as fit for the purposes for which they were commonly supplied as a reasonable consumer would expect or regard as acceptable having regard to the description of the goods and any other relevant circumstances’; the hypothetical reasonable consumers in this case were ‘Qualified Professionals’ – developers, builders, façade fabricators, architects, building certifiers and fire risk engineers. 

On the second claim (misleading conduct), the applicants relied on many representations by both respondents in marketing brochures – jointly made, the judge concluded – and on websites accessed in Australia. The judge held that these were directed at architects and persons responsible for design choices on buildings (not specialist Fire Safety Engineers); none of the pleaded examples would have conveyed to this professional audience the implications alleged that both products were safe, used in any way on any building. Many were ‘mere puffery’. The applicants therefore failed to prove that the representations made were false or misleading, or that the target audience required to be warned about the fire risk. The judgment concludes by considering the heads of damages which would have been treated as caused by the respondents’ conduct and recoverable, had liability been established under either head of claim; and limitation issues specific to claims under the TPA and ACL. 

The failure of this action – assuming no successful appeal to the Full Court – contrasts starkly with the success of the Victorian litigation after the Lacrosse building fire, which relied on the state’s domestic building legislation against ‘the builder’ and other project participants: see sections [2.6], [2.8.1] and elsewhere in the book.

The Victorian Court of Appeal in Singh v Ozzie Homes Building & Construction Pty Ltd [2026] VSCA 25 applied a strict, rather than purposive, approach to determining whether a stage is ‘complete’ for the purpose of the stage payment provisions under the DBCA, overturning the finding at trial that ‘lock up’ had been achieved despite a number of incomplete items, including doors held closed with plywood:

[101] Having decided that lock-up stage is reached when the work is complete, not when the ‘purpose’ of the lock-up stage provisions is achieved, the next question is whether the work is complete if only ‘trivial’ matters are outstanding. The judge proceeded on the basis that a failure to achieve completion of lock-up stage could be overlooked if the failure could be described as ‘trivial’… in doing so, the judge erred. Lock-up stage was either completed or not, and the contract required that it be completed before payment was due. That is not to say, however, that the significance of the matters not completed is irrelevant. … determining whether a construction stage is complete may entail assessments of degree, having regard to the contractual definition and the specifications, and the state of the work.... [A] construction stage may be complete even though there are defects in the work, which the contract contemplates will be remedied at a later date.

For the case’s quantum meruit aspects, see the update above to section [4.12.5].

The Consumer Legislation Amendment Act 2026 (Vic) – this provision to come into force on a date to be proclaimed or, if not, on 1 June 2027 – adds to the DBCA via a new s 38A a new and detailed process for approval of variations with a value exceeding A$5,000. The need for such formality around variations approvals is emphasised by Grubisa & Grubisa v Madden Developments Pty Ltd t/a Stroud Homes Sunshine Coast [2026] QCAT 300, in which Howe M had to decide whether the owner texting ‘OK’ was sufficient to amount to agreement to ‘the builder’s’ variation claim (it was not; urgency did not avoid the need for ‘the builder’ to comply with the statutory notice requirements – [84]).

For an example of the disputes which can arise in ‘cost plus’ delivery – here, playing out across a number of projects undertaken between the parties – see Alta Vale Residential Pty Ltd (In Liq) (Rec Apptd) v STM123 Pty Ltd [2026] NSWSC 882.

Confirmation that a contract needs to be actually signed (‘wet’ or electronic) in order to be enforceable as a ‘domestic building contract’ under the DBCA: Bajaj v Arunachalam [2025] VCAT 1138 [39] (Cook M).

In 85 Princess Pty Ltd v Fleming [2025] NSWSC 407, about an allegedly defective slab in a warehouse, Brereton J ‘weigh[ed]’ the eight factors identified by Kourakis CJ in Stone v Chappel [2017] SASCFC 72, (2017) 128 SASR 165 at [94]-[128], referring to them as a ‘useful catalogue of relevant considerations’; he did not mention the separate list in Stone from Doyle J (Hinton J agreeing). This ‘weighing’ led to a conclusion that repairing and monitoring the cracks was the appropriate response, not demolition and rebuilding. The NSW Court of Appeal (Ball JA; Payne and Stern JJA agreeing) dismissed an appeal at [2025] NSWCA 261, giving further detail at [66]-[69] about the onus borne by the defendant in showing that it is unreasonable to order rectification and observing, at [65], in relation to Kourakis CJ’s list of factors:

[A]lthough this is a useful checklist, it should not be applied mechanistically and the ultimate question remains whether in all the circumstances of the case it would be reasonable to undertake the work necessary to achieve compliance with the contractual specification.

For an example of the approach in 85 Princess Pty being applied, see Di Lullo v JG King Pty Ltd, discussed in the update above to section [2.9].

In Larsen as trustee for the Larsen Superannuation Fund v Tastec Pty Ltd (formerly Wonders Building Company Pty Ltd) [2025] NSWCA 145, the NSW Court of Appeal applied to compensation for contravention of the misleading or deceptive conduct prohibition of s 18 the Australian Consumer Law essentially the contract damages measure for rectification.

The Stone factors (here, both sets) were considered by Watson J in the Victorian Supreme Court in Stanley v EWH Construction West Pty Ltd [2025] VSC 699. The dispute was over a failure by the builder to meet the homeowners’ expectation that they would be able to reverse their caravan up the driveway and through a garage to store it in the back garden of the newly built home. The Supreme Court essentially upheld VCAT’s findings that the failure amounted to a breach of contract, allowing the homeowners damages for the inability to store their caravan at their home; but it was unreasonable (under the Bellgrove limb) to award damages to demolish and rebuild the house to meet that objective. 

At [43], Watson J disagreed with the VCAT finding that the understanding that the caravan would be able to be stored was an express term of the contract (a key consideration was that the ‘entire agreement’ clause in the HIA standard form precluded reliance on what was an essentially partly oral-partly written approach to incorporation of that term). However, at [47] he accepted the Stanleys’ submission that there were breaches via indications in the contract plans that there would be a flat line between the footpath and garage and that, by deviating from the floor levels in the building permit, the builder had breached the requirement in DBCA s 8(c) (incorporated into the contract via its cl 11) that the work would comply with all laws etc.

As for the reasonableness limb of the Bellgrove exception to rectification being the default measure of damage, the Court accepted, based on Tabcorp, that the exception applied only in exceptional circumstances; however, at [71] Watson J found the circumstances exceptional. At [75] he regarded the Stanleys’ submission, referring to the second-hand bricks example in Bellgrove, that Tabcorp limited the ‘exceptional’ circumstances to where ‘the innocent party is merely using a technical breach to secure an uncovenanted profit’ as an ‘overread’ of Bellgrove and Tabcorp; he went on at [85] to refer to both sets of Stone factors as ‘giv[ing] effect to the same substantive underlying considerations’. At [86] he found that four of Kourakis CJ’s factors – significant departure from the contractual stipulation; significant adverse effect; reasons for the stipulation; practical feasibility of rectification – were in favour of the appropriateness of rectification. However – emphasising once again the dispositive nature of the disproportion factor – at [88] he found that the ‘degree of disproportion between the cost of rectification work and the Stanleys’ interest in the performance of the contractual stipulation is such as to make that remedy unreasonable in the circumstances’.

On the broader question of the state of the law in Australia, this passage at [82] is probably the most significant, again pointing to Australia de facto adopting the Ruxley consideration of disproportion as dispositive, in the shadow of arguably inconsistent High Court authority:

Senior Counsel for the Stanleys submitted that Stone v Chappel was inconsistent with the High Court’s decisions in Bellgrove v Eldridge and Tabcorp and that I should not follow it. Stone v Chappel is a decision of an intermediate court of appeal regarding the common law of Australia. I am bound to follow it unless persuaded that it is plainly wrong. I am not so persuaded; indeed I would reject the submission that there is any inconsistency between the approach adopted by the Full Court of the South Australian Supreme Court and the two High Court decisions. In particular, I do not accept that the High Court decisions require a binary choice between the full costs of rectification as performance based damages and an assessment of diminution in value, particularly in circumstances such as arose in Stone v Chappel where the former measure is not available because those costs would be unreasonable and the latter measure would leave the innocent party without a remedy.

Upon the case’s remission to VCAT (Stanley v EWH Construction West Pty Ltd [2026] VCAT 571, Lulham DP awarded the Stanleys A$279,313.51, comprising:

• A$86,274.50 for rectification ([24]) 
• A$17,500 for eight weeks’ alternative accommodation ([31]: ‘the Stanleys are entitled to rent reasonable accommodation. They are not expected to stay in a cheap motel, or in a five star hotel suite’; so, the valuation was based on the most similar AirBnB to their house, plus $176 storage and $6K removal fees)
• A$33,406 for caravan storage for 10 years (noting that the Stanleys are ‘in their mid-60s… [and] intend to enjoy caravanning as long as possible’ – [47]); Lulham DP rejected the builder’s assertion that the Stanleys had failed to mitigate because they bought a larger caravan than could be accommodated by the (defective) garage
• A$136,000 for loss of amenity and physical inconvenience: [73], here involving fairly extensive comparison with the award given in Stone v Chappel concluding that ‘I could not say that the Stones' enjoyment of art was worth more or less than the Stanleys' enjoyment of caravanning’.

Assigning existing rights of action (in tort, contract or under statute) to a third party in NZ law is explored in a case about a leaky home already rectified under the Weathertight Homes statutory regime but apparently needing further work. In To’o v Wellington City Council [2025] NZHC 216, Skelton AJ refused to strike out the claim by the assignees (the new owners of the home) against a former owner of the home, requesting summary judgment in her favour. The judge held that the current plaintiffs had arguably taken an assignment of their predecessor owner’s claims for mistake and misrepresentation under the Contract and Commercial Law Act 2017 (NZ); under existing authority, the predecessor’s possible claim under the Fair Trading Act 1986 (NZ) would not have been assignable, like some other statutory claims. It was also arguable that the current plaintiffs had the necessary ‘genuine commercial interest’ (for English law, see n 46 in section [5.3.2] of the book) in pursuing the claim – seeking the cost of further repairs, or damages for the loss in value, to their own home on the same legal basis as their assignor (now deceased) could have done. On the argument that the assignor had suffered no transmissible loss, having sold the house for full value, see the update below to section [5.3.2]. 

The final issue was limitation: having started their action more than six years from the house sale to their assignor, they had to come within the ‘late knowledge’ extra three-year period under the Limitation Act 2010 (NZ) s 14, as recently interpreted in Rea v Auckland Council [2024] NZCA 313, [2024] 3 NZLR 242 (further appeal to the NZSC refused). Applying those principles, the current plaintiffs did not have the necessary knowledge (nor were they put on notice) when they bought the house, though formally told that weathertightness issues had already been resolved; knowledge under s 14 arrived only when they first became aware of leaks and water ingress, which meant that their action was in time and could go ahead. For the background, see section [10.8.1] in the book and its updates below.

In July 2024 the NZ Commerce Commission published Enforcement Response Guidelines, one of a suite of published documents explaining the Commission’s approaches to potential or actual violations of the areas of law and regulation it has the power to enforce, with the range of enforcement tools available to it. Its key criteria comprise: the extent of detriment or harm; the seriousness of the conduct; and the public interest. Enforcement of the law against anti-competitive conduct against individuals (as well as linked businesses) is illustrated by the update below to section [6.4].

Further guidance comes from the Commission’s publication of its 2025/26 Enforcement and Compliance Priority Areas (August 2025), highlighting online sales (including fake reviews) as a specific current priority. 

Here is the full passage from Harrison J’s judgment in Downer Construction (New Zealand) Ltd v Silverfield Developments Group Ltd [2006] NZHC 486, [2007] 1 NZLR 785 at [63] which Efthim AsJ in Grech v Biltar Pty Ltd [2025] VSC 636 held not to represent the law in Australia:

In my judgment all these cases illustrate the obvious. Specific performance is an equitable and thus fact specific and discretionary remedy. Its exercise is governed by well settled principles which are flexible and adaptable to achieve the ends of equity; that is, to ‘do more perfect and complete justice’ between the parties than leaving them to their common law remedies (Argyll Stores at 9F-G). Building contracts present special features “of a practical nature” (Argyll Stores at 11H) in the areas of sufficient particularity and superintendence of work. But provided the Court is satisfied they can be accommodated by the imposition of appropriate terms within the order, as the arbitrator was here, there is no principled reason why such contracts should not be the subject of awards for specific performance.

On specific performance in general, see section [4.12.2] in the book, also the update below to section [4.15.4].

(especially for n 545) On the impact of ‘betterment’ on the damages available for breach of contract in English law, see Rix LJ in The Baltic Surveyor [2002] 1 Lloyd’s Rep 623 (CA), applied by Snowden LJ (with whom Lewis and Newey LJJ concurred) at [106]ff in Barrowfen Properties v Patel [2025] EWCA Civ 39.

(especially for the main text to n 565) Ireland’s current approach to the penalty doctrine will be revealed at Supreme Court level when it gives judgment later in 2026 on a leapfrog appeal from Governor and Company of the Bank of Ireland v O’Boyle [2025] IEHC 219, where Marguerite Bolger J found a surcharge interest rate of 9% annually, applied to the (now deceased) defendant’s loan on his default, unenforceable. The Bank argued for application in Ireland of the UKSC’s ‘recalibration’ of the penalty doctrine in Makdessi, but the judge held that she was bound to follow Dunlop v Selfridge, as applied in Ireland by Finlay Geoghegan J in Sheehan v Breccia [2018] IECA 286.

(especially for the main text to n 567) The conditions under which an Irish court might impose a mandatory injunction requiring a contract party to perform an obligation – in this case, to keep a shop open – are discussed in Tesco Ireland Ltd v Multi-Home Retail Ltd [2026] IEHC 276. Marguerite Bolger J applied the approach of Lord Hoffmann in Co-Operative Insurance Society Ltd v Argyll Stores (Holdings) Ltd [1998] AC 1 (HL) (n 320 in section [4.12.2] in the book – see also its update above), itself already applied in Irish case law. In the end she refused to order an interlocutory injunction against the loss-making licensee, which would have forced them to keep running their homeware shop in part of a Waterford former Tesco store.

The Residential Tenancies Board has power to carry out investigations of landlords and impose administrative sanctions for ‘improper conduct’ under the Residential Tenancies (Amendment) Act 2019 (Ire) s 28 (modifying earlier legislation), a sanctioned landlord having a right of appeal to the Circuit Court. On this appeal regime, see Xerico Ltd v Residential Tenancies Board [2025] IECA 202 (Faherty J).

In January 2026, the Irish Government announced that a Bill would be introduced to implement the recommendations of a Housing Agency review of rent controls in the private sector (April 2025). The resulting Residential Tenancies (Miscellaneous Provisions) Act 2026 (Ire) heavily modifies the 2004 Act, instituting a national system of rent control, as well as limiting the scope for a landlord to bring a residential tenancy to an end, notably on a ‘no fault’ basis.

Changes to the Scots law of contract have been introduced by the Contract (Formation and Remedies) (Scotland) Act 2026. The reforms in relation to formation are summarised in the update above to section [4.5.1]; in relation to remedies in the update below to section [4.16.3].

For English law’s refusal to follow a Scots law principle – part of its ‘mutuality of obligations’ doctrine – see King Crude Carriers SA v Ridgebury November LLC [2025] UKSC 39, summarised in the update above to section [4.7.3].

Part 2 of the Contract (Formation and Remedies) (Scotland) Act 2026 makes changes in relation to remedies for breach of contract, including providing a default framework where:

• Both parties have broken the terms of a contract
• One party may withhold or retain performance in response to breach by the other
• There needs to be a return of a benefit (like money or goods)
• There is no agreed price, defining how a benefit is valued so that compensation can be given or the benefit returned (restitution)
• A party suffers loss partly through their own fault and partly through the fault of the other party (contributory negligence).

(especially for n 603) For a failed appeal by tenants against their landlord, relying on statutory ‘reasonably fit for human habitation’ grounds in relation to alleged contamination in the Watling St site in Motherwell having caused risks to health, see the update below to section [5.7.1].

(especially for the main text to n 607) The Housing (Scotland) Act 2025 gained Royal Assent on 6 November 2025, modifying earlier legislation. Among changes relevant to the book, Part 1 introduces new forms of rent control; Part 4 allows Scottish Ministers to lay down new guidance on damp within housing and changes the time-limits for succession to secure tenancies.