Where a property developer and consultant had agreed in a written contract to the calculation of an additional fee in circumstances where sales of lots within a development exceeded agreed sales projections but where the developer had, as was its right, developed the stages in a manner different to that contemplated at the time of entry into the consultancy agreement. The consultant claimed it was entitled to an additional fee on the basis of an implied term. The principal issue was whether the implied term met the legal requirements. A secondary question raised by way of defence was whether a later contract was entered into between the developer and the consultant as to how any additional fee payable in respect of the additional lots would be calculated whether expressly, or impliedly by way of conduct, which contract varied the consultancy agreement. The consultant failed on the implied term case and the defendant also succeeded in proving the existence of later contract.
The judgment is published here.