What are lawful and unlawful Conspiracy? Learn the difference between these two torts from a legal standing.
What does ‘Good Faith’ mean?
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In recent decades, Australia has seen an increase in the number of disputes involving parties alleging that there has been a breach of an obligation of ‘good faith’ that has resulted in loss or damage. But what exactly does it mean to act in good faith? Australia has not yet committed itself to a definitive meaning or principle on good faith in contract law, despite the concept being the subject of considerable discussion. As such, it can often be difficult to determine what an obligation of good faith might entail, and consequently, whether such an obligation has been breached.
What is Good Faith?
To act in “good faith” with respect to negotiations and general contract law is often understood to simply mean the just and honest dealings between parties. The principle of ‘good faith’ in the context of contract law has existed since the late 1800s, if not even earlier.1 The acceptance of the principle of ‘good faith’ in Australian common law first arose in 1992 in the case of Renard Constructions (ME) Pty Ltd v Minister for Public Works,2 in which case the Court stated:
“… that people generally, including judges and other lawyers, from all strands of the community, have grown used to the courts applying standards of fairness to contract which are wholly consistent with the existence in all contracts of a duty upon the parties of good faith and fair dealing in its performance. In my view this is in these days the expected standard, and anything less is contrary to prevailing community expectations.”
The Court in the case of CGU Insurance Ltd v AMP Financial Planning Pty Ltd emphasised the point made in Renard Constructions (ME) Pty Ltd v Minister for Public Works by accentuating that utmost good faith may require any person to act with due regard to the legitimate interests of others as to its own interests.3 Callinan and Heydon JJ stated the following:
“At the outset we should say that we agree with the Chief Justice and Crennan J that a lack of utmost good faith is not to be equated with dishonesty only. The analogy may not be taken too far, but the sort of conduct that might constitute an absence of utmost good faith may have elements in common with an absence of clean hands according to equitable doctrine which requires that a plaintiff seeking relief not himself be guilty of tainted relevant conduct. We have referred to the doctrine of clean hands because, as with another equitable doctrine, that he who seeks equity must do equity, it invokes notions of reciprocity which are of relevance here”.4
In the case of Kelly v New Zealand Insurance Co,5 Kirby J stated that the common law duty of ‘good faith’ encompassed notions of fairness, reasonableness, standards of decency and fair dealing.
This is not to suggest that the application of the doctrine is unanimous or uncontroversial. In the case of Walford v Miles,6 Lord Ackner stated:
“[T]he concept of a duty to carry on negotiations in good faith is inherently repugnant to the adversarial position of the parties when involved in negotiations. Each party to the negotiations is entitled to pursue his (or her) own interest, so long as he avoids making misrepresentations … A duty to negotiate in good faith is as unworkable in practice as it is inherently inconsistent with the position of a negotiating party.”
How is Good Faith Established?
The implied doctrine of good faith is not clearly established in Australian law. However, the following concepts are often linked to the implied duty of good faith:
Uncertainty with Good Faith
Most contracts will generally not include an express duty of good faith. There are some exceptions to this rule, including franchise agreements and insurance contracts.
The Franchising Code of Conduct11regulates franchising agreements and explicitly imposes the obligation of all parties to the contract to act in good faith towards one another. However, the Franchising Code of Conduct does not contain a particularised definition of ‘good faith’ and instead relies on the definition of good faith as determined by caselaw.
Similarly, the Insurance Contracts Act12 provides that a contract of insurance is based on the utmost good faith requiring each party to act towards the other party, in respect of any matter arising under or in relation to it, with the utmost good faith.
Good Faith in Contract Law
In most cases where there is no express contractual or statutorily imposed duty, courts may imply the term, ‘good faith’ into a contract or agreement. Whether courts ought to imply the term in Australian contract law remains unsettled and varied between different Australian justisdictions:
- The High Court evinces an unwillingness to consider whether a standard of good faith ought to be implied into all commercial contracts (Yousif v Commonwealth Bank of Australia (No. 2)  FCA 656; Commonwealth Bank of Australia v Barker);
- Victoria maintains that good faith should not be implied indiscriminately into all commercial contracts. Caselaw seems to suggest that implying ‘good faith’ into an agreement should be assessed on a case-by-case basis (Androvitsaneas v Members First Broker Network  VSCA 212); and
- In New South Wales and Queensland, case law does not provide any definitive position. However, recent decisions in the Supreme Court of Queensland have supported the view to implement a standard of good faith in commercial contracts (Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors  QSC 163; Lien & Anor v Clontarf Residential Pty Ltd & Anor  QSC 94; Parkinson v Mackay Sugar Ltd  QSC 168).
This uncertain position leaves the parties to agreements left to argue whether an obligation of good faith should relevantly be implied on a case by case basis.
As a general position, for a term to be implied in an agreement or contract, that term must generally:
- Be equitable and reasonable;
- Be capable of clear expression;
- Be necessary to give business efficacy to a contract; and
- Not contradict the express terms of the contract.
Whether or not it will be appropriate to impose a duty of good faith will depend on the particular circumstances of each individual case.
The nature of the relationship attracting an obligation of good faith
There are four main types of legal relationships that are generally more likely to attract an obligation to act in good faith. These are:
- Contractual relationships;
- Relationships based on proximity;
- Fiduciary relationships; and
- Mixed relationships involving more than one of the preceding relationships between the same parties.
The principle of good faith may also be applied to other relationships, such as statutory relationships. For example, the statutory duties owed to a corporation by its officers and directors, or the duties owed by pension trustees to fund beneficiaries.
Failure to act in good faith
If an obligation of good faith is either expressed or implied by a contractual agreement, a failure to abide by that obligation will be treated as a breach of the contract similar to the breach of any other term of the contract. In the event that a party fails to act in good faith where the obligation to do so exists, the injured party suffering loss as a result may seek compensation in the form of damages or other relevant relief in the circumstances, including injunctive relief.
In cases involving franchising disputes, breaching the obligation to act in good faith under section 6 of the Franchising Code of Conduct is a civil penalty provision, and accordingly, the breach of this provision may result in the Australian Competition and Consumer Commission taking legal action against the offending party.
Contact Gibbs Wright Litigation Lawyers
If you are a party to a particular contract or agreement, you may owe a duty of good faith to the other party to the agreement. Conversely, the other party to the agreement may owe you a duty to act in good faith as well. Precisely what this obligation might mean for you may require careful consideration of the particular circumstances of your agreement.
Contact Gibbs Wright for a free and confidential consultation with one of our contract dispute lawyers about your matter to discuss your legal options and rights.
 McKay v Dick (1881) 6 App Cas 251
 (1992) 26 NSWLR 234, at 268, per Priestley
 CGU Insurance Ltd v AMP Financial Planning Pty Ltd  HCA 36
 CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1, 77 
 Kelly v New Zealand Insurance Co Ltd (1996) 130 FLR 97
 Walford v Miles  1 All ER 453
 Mackay v Dick (1881) 6 App Cas 251; Butt v McDonald (1896) 7 QLJ 68; Secured Income Real Estate (Australia) Ltd v St Martins Investment Pty Ltd (1979) 144 CLR 596
 Above n2
 Burger King Corp v Hungry Jacks Pty Ltd (2001) NSWCA 187 
 Burger King Corp v Hungary Jacks Pty Ltd (2001) NSWCA 187 at ; Renard Constructions v Minister for Public Works (1992) 26 NSWLR 234 at ; BP Refinery (Westernport) Pty Limited v President, Councillors and ratepayers of the shire of Hastings (1977) 180 CLR 266
 Schedule 1 of the Competition and Consumer (Industry Codes—Franchising) Regulation 2014 (Cth)
 s.13(1) Insurance Contracts Act 1984 (Cth)
The content of this publication is intended as general commentary only and may not be suitable or applicable to your personal circumstances. It is not intended to replace independent legal advice. You can contact us at our Brisbane Office for a free consultation on a range of litigation matters on (07) 3088 6364.
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