Welcome to today’s Chamberlains Selection, where we will discuss with James d’Apice on the matter of Advanced v Daintree  NSWCA 270. We will talk about parties entering a contract and ultimately infringing on the agreed upon terms.
Two parties entered into a contract: a cleaner and a client. The job was to clean a number of large retail stores. The cleaner agreed not to subcontract or assign its cleaning duties to anyone else without the client’s permission. If it did, the client had a right to immediately terminate and did not have to pay for any unauthorised subcontract work: . As it happened: the cleaner did about 10% of the work. The cleaner’s subcontractors (who the client did not authorise) did about 90%. The cleaner sought payment. The client resisted. The cleaner litigated, lost, and appealed. Among the cleaner’s arguments on appeal were that if the client took the benefit of 100% of the cleaning work and only paid for the 10% then that would see the client enjoy a windfall: . The client said the contract was not a mere contract to produce a result. The identity of the producing party was important:  – . The Court found the cleaner’s obligation could not be discharged by using unapproved subcontractors, meaning it was not entitled to be paid: , , . In so finding, the Court considered that the contract made it clear that the identity of the provider of the services was important:  – , .