Ure Energy Limited v Notting Hill Genesis

Waiver by election requires knowledge of the facts and the right to terminate, a decision to exercise or not, and clear communication of the choice.

The Kanchenjunga, Peyman v Lanjani

Constructive knowledge is insufficient for waiver; actual or blind-eye knowledge is required.

TCG Pubs Ltd v The Master and Wardens, The SK Challenger

A presumption arises that a party receiving legal advice was aware of its rights, but this presumption is rebuttable.

Peyman v Lanjani, Moore Large & Co. Ltd v Hermes Credit

A non-waiver clause does not entirely exclude the doctrine of waiver; however, it raises the threshold for demonstrating waiver.

MWB Business Exchange Centres Ltd v Rock Advertising Ltd, Sumitomo Mitsui Banking Corp Europe Ltd v Euler Hermes Europe SA NV

For a breach to be material, it must be serious and substantial, assessed based on the contract's terms, circumstances, and consequences.

Vivergo Fuels Ltd v Redhall Engineering Solutions Ltd

A repudiatory breach is only effective if accepted by the other party.

N/A (implied)

The proper construction of a contract clause should be determined before assessing whether it is a penalty clause.

Lewison, The Interpretation of Contracts