Waiver of contractual rights: A non sequitur

On 11 December 2008, the High Court gave judgment in an appeal which involved a restatement of the concept of waiver in the context of the enforcement of contractual rights. The decision has the effect of limiting the operation of the concept of waiver to the loss of curial and quasi-curial rights such as the right to assert legal professional privilege and the right to plead a limitation defence to an action in a court or tribunal. But the most important aspect of the judgment is that it stands as a watershed in the law of contract in Australia by rejecting the notion that conduct by one party to a contract inconsistent with that party's rights under the terms of the contract can ever give rise to a loss of rights under the contract by that party in the absence of: (a) any consideration given to support a variation of the contract; (b) any detrimental reliance suffered by the other party to the contract which can support a plea of estoppel by conduct; or (c) a true binding election between inconsistent contractual rights.