Overage and Implied Terms – Another Curtain Call and More Bad News for Developers

The courts have often refused to intervene to imply a term into a contract that would “save the day” for the claimant, irrespective of the perceived injustice which may follow. Sometimes, however, they are more inclined to agree with the “wronged” party. What factors govern a court’s decision and why in Sparks v Biden did the court agree to imply a term that triggered an overage payment, rather than let a developer off the hook for lack of appropriate drafting? And, more importantly, why does it matter. 

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