vi. further support in favour of the Court being presently wary of acceding to the strike out application is to be found in the judgment of Finkelstein J in Garry Rogers Motors (Aust) Pty Ltd v Subaru (Aust) Pty Ltd (1999) ATPR 41-703, where his Honour said (at [35]):
"If such term is implied it will require a contracting party to act in good faith and fairly, not only in relation to the performance of a contractual obligation, but also in the exercise of a power conferred by the contract. There is no reason to think, prima facie at least, that the obligation of good faith and fair dealing would not act as a restriction on a power to terminate a contract, especially if that power is in general terms."
Decision
11 In circumstances where it seems common ground that the principles which inform the obligations on parties to a contract to act in good faith [and reasonably towards one another both in performing obligations and in exercising or enforcing rights] represent a relatively recent and still developing form of the jurisprudence in this country, the principled the exercise of the Court's discretion is to lean in favour of allowing the present amendments. Reverting to the statements of principle earlier set out in these reasons, I do not see that the paragraphs of the proposed third further amended statement of claim to which objection has been taken are "so obviously untenable that [they] cannot possibly succeed" or satisfy the test of being "manifestly groundless".
12 I acknowledge that the defendant forcefully contends that in the present state of the authorities, at least at first instance, an unremarkable express regime for the termination of a lease in case of specified breaches by a tenant is, without more, incompatible with an implied duty only to exercise the power for a 'proper purpose': So much is said to be apparent from Apple Communications Ltd v Optus Mobile Pty Ltd [2001] NSWSC 635 at [17] where Windeyer J observed that:
"If a contract allows for termination for any reason then it does not seem to me to be unreasonable to terminate it for a reason unconnected with conduct of a contracting party."
[See also the remarks of Buchanan JA in Esso Australia Resources Pty Limited v Southern Pacific Petroleum NL [2005] VSCA 228 at [23]-[24] that: "It is difficult to discern a want of good faith in the exercise of a power which can serve only the interests of the party upon whom the power is conferred. The ostensible purpose of the exercise of such a power will almost invariably be its true purpose."
13 Essentially the present state of the law in this area is simply not as clear as to permit the defendant to satisfy the General Steel test. This is a major litigation with numerous issues of fact and law. In an area where there is a real possibility of doubt the discretion must be exercised in favour of the allowing of the amendments.
Dealing with the other grounds relied upon by the defendant
14 There was no substance in the contention that the pleading should be disallowed because the purpose and tendency of the pleading is proven to cause embarrassment to the defendant and its witnesses with a view to obtaining some collateral advantage in the proceedings.