At first blush the case appears unremarkable, but the judgment is worth reading as it provides important guidance on what “in writing” actually means.
One of the trickiest types of jurisdictional issues is a challenge to the adjudicator’s jurisdiction on the grounds that there are oral terms not evidenced “in writing”. As will be clear from this case, Akenhead J considered it inappropriate to grant summary judgment as there was a triable issue in relation to the existence of an oral term. As an adjudicator, you have to form a conclusion, often on limited documentary evidence, without the benefit of an oral hearing and in a short period of time. The costs of dealing with such a challenge can be significant.
While, in my view, differentiating between implied and oral terms is relatively straightforward, having to determine whether an oral term is “trivial” is more difficult – especially if the answer, which Akenhead J suggests, depends on the facts. There is more scope for argument here.
Some commentators have suggested that the repeal of section 107 will take away arguments about oral terms. My view is that they will still be there, but an adjudicator will have less of a time constraint in dealing with them; they will simply form part of the decision.
Further, an adjudicator will be able to reach a temporarily binding decision as to whether an alleged oral term exists or not, as opposed to the current situation when faced with a jurisdictional challenge. This may lead to greater certainty when a party adjudicates. Only time will tell whether it leads to fewer jurisdictional challenges.