Mulalley engaged Leander Construction as a sub-contractor. Following delays in carrying out the works, Mulalley claimed that there was an implied obligation to proceed regularly and diligently and withheld monies from Leander.
The court held that Mulalley had not demonstrated that the alleged term was necessary to make the sub-contract work. The sub-contract already contained an obligation to complete the sub-contract works by a certain date, therefore there was no need to imply other obligations to make the contract work.
Where contractors are looking to ensure that sub-contractors comply with specific interim performance obligations express drafting will be required.