The Court of Appeal has ruled on the enforceability of conditions precedent in contracts which are no longer capable of being performed - known as the "futility principle". 

The applicable decision is the case of Astor Management v Atalaya Mining. The Court ruled that a condition precedent requiring a mining developer to refinance could not simply fall away and become inoperative where the need to refinance was no longer relevant as the developer had secured adequate intragroup funding.

The lesson for developers is to think carefully when drafting conditions precedent and always expressly provide for them to be capable of waiver or variation where they are no longer relevant.