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This precedent has been authored by Ilija Vickovich, Lecturer, Macquarie Law School and updated by Dr. Gordon Hughes, Principal, Davies Collison Cave Law.

Introductory note

There is ongoing debate as to the legal status of a contractual “waiver”. Some courts are of the view that the waiver doctrine is simply a manifestation of concepts such as election or estoppel, (see eg Commonwealth v Verwayen (1990) 170 CLR 394; [1990] HCA 39; BC9002931) others consider that it operates independently (see eg Badat v DTZ Australia (WA) Pty Ltd [2008] WASCA 83; BC200802581). In any event, it is common to include a clause in a contract to the effect that a provision of the contract can only be waived in writing, and emphasising that non-enforcement of a clause does not constitute a waiver.