Contractual Discretion

Free Public Lecture

Contractual Discretion

Room 920, Level 9
Law 106
185 Pelham Street


Contracts often confer discretionary powers on one party to the contract which, when exercised, may affect not only their own interests but also those of the other party or parties. Increasingly courts in Australia and England are implying terms to regulate such contractual discretions in a diverse range of contractual contexts including employment and commercial contracts, and in doing so have drawn on principles derived from administrative law such as Wednesbury unreasonableness. This lecture will present an analysis of the emerging case law, considering the substance of the terms implied and how the courts have applied these terms in practice, identifying factors which render it more likely that a court will find breach. The lecture will go on to consider several outstanding questions including how the content of such terms may develop over time given an increased judicial willingness to draw on administrative law principles; whether such terms are implied in law or fact; and the remedial consequences of breach of such terms, focusing on damages and voidness.


  • Professor Jason Varuhas
    Professor Jason Varuhas, Melbourne Law School