ii. TERMS IMPLIED IN FACT A term will be implied in fact where it is based on the ‘presumed’ intentions of parties, rather than their actual intentions. 1) Formal contracts BP Refinery Pty Ltd v Hastings Shire Council – For a term to be implied in fact, the following conditions must be satisfied: o Must be reasonable and equitable o It must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it o It must be so obvious that it ‘goes without saying’ o It must be capable of clear expression o It must not contradict any express terms in the contract Codelfa Construction Pty Ltd v State Rail Authority of NSW – An implied term is “one which it is presumed that the parties would have agreed upon had they turned their minds to it; it is not a term that they actually agreed upon.” – The more detailed and comprehensive the contract the less ground there is for supposing that the parties have failed to address their minds to the question at issue. – This is because of the difficulty of identifying with any degree of certainty the term which the parties would have settled upon had they considered the question.

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Approximately 20442 words over 39 pages. Prepared in 2022.