13 May 2020
We often see contractual obligations on parties to act in ‘good faith’.
The Company may, acting reasonably and in good faith, set off from any amount due to the Contractor, any amount due or which may become due to the Company under this Contract.
What does ‘good faith’ mean? In the above example, how does it affect the exercise by the Company of its right to set-off?
Despite the long history of good faith, we still don’t know for sure, but we have some suggestions as to what it might mean. According to the High Court of Australia:
From the Federal Court of Australia:
In the absence of a definitive statement as to its meaning, and given ‘good faith’ has been and is still being considered by the courts of various jurisdictions within Australia and within a variety of contexts, there is a broad range of meanings attributed to it. However, it seems that ‘good faith’ likely involves elements of:
So what does that mean for the parties in our example above? We suggest it means:
The last point is interesting, given the elements of good faith such as fairness and reasonableness. However, in Diab Pty Ltd v. YUM! Restaurants Australia Pty Ltd the Federal Court of Australia decided that a discretionary power could be exercised by YUM! Restaurants, in the manner in which it was exercised, even though to do so would cause financial hardship for its franchisees.
Back to our example, also in support of the Company setting off both the amounts due and those which may become due, is “that it is not for the courts to re-write the parties’ bargain for them”.
Of course, what court decisions also tell us, is that in the presence of an express obligation of good faith, the additional obligation to act reasonably becomes redundant. This is because good faith includes more than just acting reasonably.
What if our hypothetical example didn’t include the obligation on the Company to act in good faith but only referred to an obligation to act reasonably:
The Company may, acting reasonably, set off from any amount due to the Contractor, any amount due or which may become due to the Company under this Contract.
Will good faith be implied into a contract which does not otherwise expressly require the parties to act in good faith? Again, we cannot say for sure. The “question whether a standard of good faith should be implied generally to contracts has not been resolved in Australia”.
If there are to be any indications drawn from decisions however:
It’s also difficult to identify, with any material degree of certainty, any general circumstances under which good faith will more likely to be implied.
Therefore, in our modified example with the obligation to act in good faith removed, the obligation to act reasonably becomes important. This is because we cannot be assured a court would imply an additional obligation on the Company to act in good faith.
So, what is the moral of the story? Like anything in a contract, if you want something to be clear, make it clear. If a party or parties are to act in good faith, then say so. Of course, you should then go further and define what good faith is to mean.
Our example clause should read as follows:
The Company may, acting in Good Faith, set off from any amount due to the Contractor, any amount due or which may become due to the Company under this Contract.
A definition for the term Good Faith would be included in the contract.
Author: Andrew Statham & Knowledge Centre Research Team
 Commonwealth Bank of Australia v Barker  HCA 32 (Barker).
 Paciocco v Australia and New Zealand Banking Group Limited  FCAFC 50 (Paciocco).
  FCA 43 (YUM!).
 Bennett J in YUM!, referring to the decision of Edelman J in Minerology Pty Ltd v Sino Iron Pty Ltd (No 6)  329, who in turn was referring to the decision of Lady Hale in Braganza v PB Shipping Ltd  1 WLR 1661.
 Refer Barker, Yousif v Commonwealth Bank of Australia (No. 2)  FCA 656 and Royal Botanic Gardens and Domain Trust v South Sydney City Council  240 CLR 45.
 (1977) 180 CLR 266.
 Aurizon Network Pty Ltd v Glencore Coal Queensland Pty Ltd & Ors  QSC 163, Lien & Anor v Clontarf Residential Pty Ltd & Anor  QSC 94 and Parkinson v Mackay Sugar Ltd  QSC 168.
The information in this publication is of a general nature and is not intended to address the circumstances of any particular individual or entity. Although we endeavour to provide accurate and timely information, we do not guarantee that the information in this newsletter is accurate at the date it is received or that it will continue to be accurate in the future.