Where a commercial contract requires something to be done but does not fix a time for that to occur, the law will often imply a term that the act must be done within a reasonable time: York Airconditioning and Refrigeration (A/sia) Pty Ltd v Commonwealth [1949] HCA 23; (1950) 80 CLR 11 at 62; Questband Pty Ltd v Macquarie Bank Limited [2009] QSC 007 at [102(2)], not challenged on appeal in Questband Pty Ltd v Macquarie Bank Ltd [2009] QCA 266 at [33]; Liggins v Park Trent Properties Group Pty Ltd [2020] NSWSC 1113 at [110].
In Questband it was held:
When by a contract an act is required to be performed within a reasonable time what is a reasonable time is a question of fact which depends upon the circumstances including the context in which the contract was made. The limit of a reasonable time is determined by reference with what is fair to both parties. Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 567–8. Whether a reasonable time, or more than a reasonable time, has elapsed must be decided at the point when the lapse of time is said by one party to have become unreasonable. It cannot be determined at the date of the contract. Rudi’s Enterprises Pty Ltd (1987) 10 NSWLR 568 at 576. A relevant fact is delay by the party complaining about the lapse of time. Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd [1989] HCA 23; (1988-9) 166 CLR 623 at 638–9. When what is in issue is the exercise of a right or the giving of a notice what is a reasonable time is to be determined by reference to the circumstances when the right is to be exercised (Business and Professional Leasing Pty Ltd v Akuity Pty Ltd [2008] QCA 215 at [46] or when the notice is given; Australian Blue Metal Ltd v Hughes [1963] AC 74 at 99.
Questband Pty Ltd v Macquarie Bank Limited above at [102(3)]
In the matter of Computer Room Solutions Pty Limited [2021] NSWSC 845 (13 July 2021): Implied term that a party who had the right to issue a Transfer Notice due to a failure to comply with a transfer restriction in a Shareholders Deed could only do so for a reasonable time. Was not permitted to exercise the notice years later after the new shareholder had been attending meetings and receiving dividends.
Where the obligations or action must be done pursuant to Queensland legislation, the reckoning of time may be determined pursuant to section 38 of the Acts Interpretation Act 1954 (Qld) (AIA). Where a statutory period applies, such as giving notice within a set number of days of an event, the period is to be calculated by excluding the day of the event itself. Where the legislation refers to “clear days” or “at least” a number of days, the concluding day of the period must be excluded as well. Where the expiry of a period falls on a day which is not a business day, the last day is taken to fall on the next business day.
Importantly, if something is stated as a requirement in Queensland legislation but no time period for performance applies, section 38(1) of the AIA requires that it be done as soon as possible. In Niclin Constructions Pty Ltd v SHA Premier Constructions Pty Ltd & Anor [2019] QCA 177 the Court of Appeal upheld a decision of a trial judge that the provision applied to an obligation in the Building and Construction Industry Payments Act 2004 for an adjudication application to be served on the respondent. Services within 12 business days was held not to be “as soon as possible” in the context of the fast time frames of the adjudication process.