Good Faith and Post-Repudiation Conduct

Professor J W Carter recently wrote: ‘Lord Reid's legitimate interest qualification has always been a puzzle' ((2012) 128 Law Quarterly Review 490, 491). The qualification Professor Carter is referring to allows a non-repudiating party to a contract to continue performance of the contract if i) the co-operation of the repudiating party is not required and ii) it is in their own ‘legitimate interest, financial or otherwise' to do so. This article submits that the legitimate interest qualification articulated by Lord Reid in the case of White and Carter (Councils) Ltd v McGregor [1962] AC 413 has been (and to the extent that it has not – ought to be – at least in Australia) subsumed by a good faith test pertaining to the behaviour of the non-repudiating party when faced with repudiation. Beyond proffering this observation, this article proceeds to apply and reflect upon the suitability of the elements of good faith in the White and Carter scenario. It finds that good faith is not only a viable framework, its analytical depth is essential in unpacking the conflicting considerations present in the context of ‘an insistent performer' (to use Professor Furmston's phrase)