I have encountered a number of cases where companies have contracts that were not “always green”, which then expired, but where the process may have been involuntary, or the parties decided that they still wanted to do business. If the forfeiture was not very long and most of the conditions remain the same, it may be convenient to avoid the drafting of a brand new agreement. I have seen cases like this in which the parties sign a document called either a “revival agreement,” or a “reinstatement agreement,” or simply as an amendment to the old agreement that purports to reinstate the expired contract. There may have been obligations after termination under the old provision(s) applicable to transactions between the expiry date of the old document and the entry into force of the new document (or amendment) dealing with the new document. If there were a clause that allowed for a renewal option, the exercise of that renewal option must take place before the expiry of the term of the contract. You need a new letter between the parties. If the agreement has not been changed, the quickest way is to prepare a simple document containing all the terms of the existing agreement, and then, while you are writing an amendment, change the things that need to be changed, remove the things that the parties no longer need, and add things that the parties agree. To stay away from situations where contracts expire, you can create agreements that contain a clause that automatically extends a contract for deadlines that the parties have approved. In such a situation, either party may inform the other that it does not wish to renew the contract. In this recent case, the counterparty questioned the possibility of doing so and proposed a recital according to which the old agreement had continued with a new expiry date. That seemed to me to be wrong for the reasons you mentioned in situations of retroactivity or retrodating. Personally, I saw nothing wrong with drafting an amendment that revived the dead contract , but I`m willing to consider other alternatives, either without lying or without rewriting the initial agreement in substance in time.
Due to the lack of Australian case law, the Australian courts have requested American, Canadian and English case law. A recent case in English established that a telephone conversation between the parties and a follow-up e-mail were sufficient to establish that the terms of the original (expired) agreement applied to any subsequent performance, whereas the following e-mail had not elicited any comment or rejection by the other party, demonstrating the relative ease with which an expired contract implies by conduct; and could be confirmed. These were the intermediation costs resulting from an agreement between CheckVelocity and a customer referred by BSG to CheckVelocity at the time of conclusion of the contract. The question was whether an agreement between CheckVelocity and the customer, signed at the expiry of the BSG/CheckVelocity contract, was an extension of the first agreement (and therefore subject to royalty arrears) or whether the second was an entirely new contract that replaced the former. The Tribunal finally considered the extension of the BSG/CheckVelocity agreement and concluded that the contracting parties used the concept of “extension” in the sense of an extension of the contract for an additional period, with the same conditions and obligations as a previous contract. The Court concluded that the concept of `extension` had to be interpreted uniformly throughout the agreement and decided that the second agreement, which required additional services and modified the essential terms of the first agreement, was not a `renewed` agreement and therefore there were no residual duties due. In order to avoid situations in which a necessary contract has expired, you can write agreements in which the duration is automatically extended in pre-agreed stages, in which each party can express its intention not to renew it.. . .