دانلود کتاب Contract Law Casebook

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TABLE OF CONTENTS Table of Cases Table of Statutes Preface Acknowledgments PART 1: OVERVIEW CHAPTER 1: INTRODUCTION The development of Australian contract law Recognition of the writ of assumpsit Slade’s Case Requirement of consideration Rann v Hughes Eastwood v Kenyon Equitable estoppel Potential reform Questions for reflection CHAPTER 2: NEGOTIATION Introduction Elements of negotiation Bargaining strategies ‘Don’t Bargain Over Positions’ Phases of negotiation ‘The Transaction’ Questions for reflection PART 2: FORMATION CHAPTER 3: AGREEMENT Introduction Offer Defining an offer Carlill v Carbolic Smoke Ball Company Electronic Transactions (Victoria) Act 2000 (Vic), s 14B Categorising transactions Harvey v Facey Smythe v Thomas Communication of an offer Termination of an offer Dickinson v Dodds Acceptance Offeree must accept terms of offer Crown v Clarke Hyde v Wrench Stephenson, Jaques, & Co v McLean Acceptance must be communicated to offeror Carlill v Carbolic Smoke Ball Company Henthorn v Fraser Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd Electronic Transactions (Victoria) Act 2000 (Vic), s 13A Electronic Transactions (Victoria) Act 2000 (Vic), s 14E Questions for reflection CHAPTER 4: CERTAINTY AND COMPLETENESS Introduction Ambiguity and uncertainty Whitlock v Brew Incomplete agreements United Group Rail Services Ltd v Rail Corporation of New South Wales Godecke v Kirwan ‘Subject to contract’ Masters v Cameron Questions for reflection CHAPTER 5: INTENTION TO CREATE LEGAL RELATIONS Introduction Modern approach Ermogenous v Greek Orthodox Community of SA Inc Government activities Circumstances indicating absence of intention Questions for reflection CHAPTER 6: CONSIDERATION Introduction Rules governing consideration Consideration must move from the promisee Coulls v Bagot’s Executor and Trustee Company Ltd Consideration: specific examples Performance of an existing contractual duty Stilk v Myrick Williams v Roffey Bros & Nicholls (Contractors) Ltd Musumeci v Winadell Pty Ltd Bargained-for conduct already performed Pau On v Lau Yiu Long Questions for reflection CHAPTER 7: EQUITABLE ESTOPPEL Introduction Recognition of equitable estoppel Waltons Stores (Interstate) Ltd v Maher Relevant remedy Commonwealth v Verwayen Giumelli v Giumelli Questions for reflection PART 3: CONTENT CHAPTER 8: TERMS I: ESTABLISHING CONTRACTUAL TERMS Introduction Incorporating written terms Incorporation by signature Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd Incorporation by notice—unsigned documents and signs Incorporation by notice—website Incorporation by reference Incorporating oral terms Oscar Chess Ltd v Williams JJ Savage & Sons Pty Ltd v Blakney Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd Implied terms reflecting the intention of the parties Term implied on the basis of business efficacy Codelfa Construction Pty Ltd v State Rail Authority of New South Wales Term implied from a previous consistent course of dealings between the parties Term implied from custom or usage Term implied to complete agreement Terms implied regardless of intention Term implying duties of good faith, fair dealing and reasonableness Renard Constructions (ME) Pty Ltd v Minister for Public Works Vodafone Pacific Ltd v Mobile Innovations Ltd Esso Australia Resources Pty Ltd v Southern Pacific Petroleum NL Questions for reflection CHAPTER 9: TERMS II: CONSTRUCTION OF TERMS Introduction Interpreting the meaning of terms Codelfa Construction Pty Ltd v State Rail Authority of New South Wales Franklins Pty Ltd v Metcash Trading Pty Ltd Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd Legal effect of words: types of terms Associated Newspapers Ltd v Bancks Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd Darlington Futures Ltd v Delco Australia Ltd Council of The City of Sydney v West Questions for reflection PART 4: LIMITS ON ENFORCEMENT OF CONTRACTS CHAPTER 10: CAPACITY Introduction Minors Common law Nash v Inman Contracts of employment and apprenticeship De Francesco v Barnum Contracts that are binding unless repudiated Steinberg v Scala (Leeds) Ltd Legislation Supreme Court Act 1986 (Vic), s 49 Supreme Court Act 1986 (Vic), s 50 Supreme Court Act 1986 (Vic), s 51 Minors Contracts (Miscellaneous Provisions) Act 1979 (SA), s 4 Minors Contracts (Miscellaneous Provisions) Act 1979 (SA), s 5 Minors Contracts (Miscellaneous Provisions) Act 1979 (SA), s 6 Minors Contracts (Miscellaneous Provisions) Act 1979 (SA), s 7 Minors Contracts (Miscellaneous Provisions) Act 1979 (SA), s 8 Minors (Property and Contracts) Act 1970 (NSW), s 19 Minors (Property and Contracts) Act 1970 (NSW), s 20 Minors (Property and Contracts) Act 1970 (NSW), s 23 Minors (Property and Contracts) Act 1970 (NSW), s 24 Minors (Property and Contracts) Act 1970 (NSW), s 26 Minors (Property and Contracts) Act 1970 (NSW), s 27 Minors (Property and Contracts) Act 1970 (NSW), s 28 Minors (Property and Contracts) Act 1970 (NSW), s 29 Minors (Property and Contracts) Act 1970 (NSW), s 30 Minors (Property and Contracts) Act 1970 (NSW), s 31 Minors (Property and Contracts) Act 1970 (NSW), s 33 Minors (Property and Contracts) Act 1970 (NSW), s 34 Minors (Property and Contracts) Act 1970 (NSW), s 36 Minors (Property and Contracts) Act 1970 (NSW), s 37 Mental incapacity Gibbons v Wright Queensland Guardianship and Administration Act 2000 (Qld), s 12 Other Australian jurisdictions Governments and the Crown New South Wales v Bardolph Questions for reflection CHAPTER 11: FORMALITIES Introduction Nature of a guarantee Yeoman Credit Ltd v Latter Harvey v Edwards, Dunlop & Co Ltd Statutory requirement of writing—guarantees Property Law Act 1974 (Qld), s 56 Nature of land contract needing writing Powercell Pty Ltd v Cuzeno Pty Ltd Statutory requirement of writing—land contracts Property Law Act 1974 (Qld), s 59 Content of writing—general Pirie v Saunders Acknowledgement of agreement Signed by party to be charged or agent Durrell v Evans Joinder of documents Harvey v Edwards, Dunlop & Co Ltd Fauzi Elias v George Sahely and Co (Barbados) Ltd Todrell Pty Ltd v Finch Adequacy of electronic ‘writing’ and ‘signature’ Writing Electronic Transactions (Victoria) Act 2000 (Vic), s 8 Instruments Act 1958 (Vic), s 129 Signature Electronic Transactions (Victoria) Act 2000 (Vic), s 9 Effect of statutory non-compliance: common law Effect of statutory non-compliance: equity Doctrine of part-performance Regent v Millett Estoppel Powercell Pty Ltd v Cuzeno Pty Ltd Variation and termination of contract Electronic Industries Ltd v David Jones Ltd Questions for reflection CHAPTER 12: PRIVITY Introduction Statutory abrogation of privity Western Australia Property Law Act 1969 (WA), s 11 Queensland and Northern Territory Property Law Act 1974 (Qld), s 55 So-called ‘exceptions’ Trident General Insurance Co Ltd v McNiece Bros Proprietary Ltd New Zealand Shipping Co Ltd v AM Satterthwaite & Co Ltd (The Eurymedon) Questions for reflection PART 5: VITIATING FACTORS CHAPTER 13: MISREPRESENTATION AND MISLEADING OR DECEPTIVE CONDUCT Introduction Elements of misrepresentation False statement of past or present fact Edgington v Fitzmaurice Bisset v Wilkinson Dimmock v Hallett Reliance Gould v Vaggelas Types of misrepresentation Innocent misrepresentation Fraudulent misrepresentation Derry v Peek Negligent misrepresentation Shaddock & Associates v Parramatta City Council Rescission Alati v Kruger Misleading or deceptive conduct Overview Elements Concrete Constructions (NSW) Pty Ltd v Nelson Campomar Sociedad Limitada v Nike International Ltd Downey v Carlson Hotels Asia Pacific Pty Ltd The appropriate level of analysis Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd Australian Consumer Law, s 4 Bennett v Elysium Noosa Pty Ltd (in liq) Remedies for a contravention of s 18 Damages Henville v Walker Reduction of damages for failure to take reasonable care Competition and Consumer Act 2010 (Cth), s 137B Apportionment of loss between wrongdoers Competition and Consumer Act 2010 (Cth), ss 87CB-87CC Rescission Tenji v Henneberry & Associates Pty Ltd Exclusion of misleading conduct Downey v Carlson Hotels Asia Pacific Pty Ltd Butcher v Lachlan Elder Realty Pty Ltd Questions for reflection CHAPTER 14: MISTAKE Introduction Common mistake McRae v Commonwealth Disposals Commission Solle v Butcher Great Peace Shipping Ltd v Tsavliris Salvage (International) Ltd (The Great Peace) Mutual mistake Unilateral mistake Taylor v Johnson Mistaken identity Lewis v Averay Mistake as to the nature of the contract (‘non est factum’) Petelin v Cullen Questions for reflection CHAPTER 15: DURESS Introduction Types of duress Barton v Armstrong Australia and New Zealand Banking Group Ltd v Karam North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd (The Atlantic Baron) Statute Questions for reflection CHAPTER 16: UNDUE INFLUENCE Introduction Classes of undue influence Khan v Khan Johnson v Buttress Undue influence and third party sureties Garcia v National Australia Bank Questions for reflection CHAPTER 17: UNCONSCIONABLE CONDUCT Introduction Unconscionable conduct in equity Commercial Bank of Australia v Amadio Louth v Diprose Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd Kakavas v Crown Melbourne Ltd Statute Australian Consumer Law Australian Consumer Law, s 20 Australian Consumer Law, s 21 Australian Consumer Law, s 22 Contracts Review Act 1980 (NSW) Contracts Review Act 1980 (NSW), s 7 Contracts Review Act 1980 (NSW), s 9 West v AGC (Advances) Ltd Questions for reflection CHAPTER 18: VOID AND ILLEGAL CONTRACTS Introduction Void contracts Nordenfelt v Maxim-Nordenfelt Guns and Ammunition Co Ltd Illegal contracts Illegality by statute Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd Equuscorp Pty Ltd v Haxton Illegality at common law Wilkinson v Osborne Effects of illegality Fitzgerald v FJ Leonhardt Pty Ltd Severance Common law Attwood v Lamont Goodinson v Goodinson Statute Restraints of Trade Act 1976 (NSW), s 4 Competition and Consumer Act 2010 (Cth), s 4L Questions for reflection PART 6: DISCHARGE OF THE CONTRACT CHAPTER 19: DISCHARGE BY PERFORMANCE Introduction Types of obligations Independent obligations Dependent obligations Automatic Fire Sprinklers Pty Ltd v Watson Dependent and concurrent obligations Recovering the contract price Divisible contract Steele v Tardiani Entire obligations Cutter v Powell Obligations requiring substantial performance Hoenig v Isaacs Establishing substantial performance Bolton v Mahadeva ACN 002 804 702 (Formerly Brooks Building) v McDonald Partial performance and breach Connor v Stainton Quantum meruit as alternative to contract price Questions for reflection CHAPTER 20: DISCHARGE BY TERMINATION Introduction Common law right of termination Breach of essential term or intermediate term Repudiation Anticipatory breach Foran v Wight Examples of repudiation Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd DTR Nominees Pty Ltd v Mona Homes Pty Ltd Almond Investors Ltd v Kualitree Nursery Pty Ltd Termination for delay Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd When is time essential? Termination where time not essential When to give a notice to complete Louinder v Leis Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd Election to terminate Sargent v ASL Developments Ltd Restrictions on termination Ready willing and able Foran v Wight Terminating party not in breach of contract Almond Investors Ltd v Kualitree Nursery Pty Ltd Contractual and statutory restrictions Effect of discharge of contract McDonald v Dennys Lascelles Ltd Questions for reflection CHAPTER 21: DISCHARGE BY AGREEMENT Introduction Variation distinguished from discharge Morris v Baron & Co Requirements of writing Discharge Variation Novation ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue Abandonment Fitzgerald v Masters Questions for reflection CHAPTER 22: DISCHARGE BY FRUSTRATION Introduction Test for frustration Codelfa Construction Pty Ltd v State Rail Authority of New South Wales Ocean Tramp Tankers Corporation v V/O Sovfracht (The Eugenia) National Carriers Ltd v Panalpina (Northern) Ltd Limits on frustration Express contractual provision Claude Neon Ltd v Hardie Supervening event foreseeable oOH! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd Supervening event self-induced Maritime National Fish Ltd v Ocean Trawlers Ltd Effect of frustration Common law Fibrosa Spolka Akcyjna v Fairbairn Lawson Combe Barbour Ltd Statute Frustrated Contracts Act 1978 (NSW), s 7 Frustrated Contracts Act 1978 (NSW), s 8 Frustrated Contracts Act 1978 (NSW), s 10 Frustrated Contracts Act 1978 (NSW), s 11 Frustrated Contracts Act 1978 (NSW), s 12 Frustrated Contracts Act 1978 (NSW), s 13 Frustrated Contracts Act 1978 (NSW), s 15 Frustrated Contracts Act 1959 (Vic), s 3 Frustrated Contracts Act 1988 (SA), s 6 Frustrated Contracts Act 1988 (SA), s 7 Questions for reflection PART 7: REMEDIES CHAPTER 23: DAMAGES Introduction Commonwealth v Amann Aviation Pty Ltd Limits on recovery of damages Causation Alexander v Cambridge Credit Corp Ltd Remoteness First limb of Hadley v Baxendale Second limb of Hadley v Baxendale Victoria Laundry (Windor) Ltd v Newman Industries Ltd Mitigation Payzu Ltd v Saunders Assessment of loss and heads of damage Loss of opportunity Commonwealth v Amann Aviation Pty Ltd Rectification of defective work Tabcorp Holdings Ltd v Bowen Investments Pty Ltd Mental distress Baltic Shipping v Dillon Restrictions on recovery of damages Termination Ready willing and able to perform Foran v Wight Liquidated damages and penalties Application of the doctrine of penalties Andrews v Australia and New Zealand Banking Group Ltd Penalty or genuine pre-estimate Paciocco v Australia and New Zealand Banking Group Ltd Effect of clause being a penalty Questions for reflection CHAPTER 24: RESTITUTION Introduction Pavey & Matthews Pty Ltd v Paul Restitution between contracting parties Termination of contract Alternative claims Unjust enrichment Recovery of money paid Failure of consideration Baltic Shipping v Dillon Money paid under a mistake David Securities Pty Ltd v Commonwealth Bank of Australia Illegality Equuscorp Pty Ltd v Haxton Claims for services rendered Services as a benefit Claim where contract governs payment Lumbers v W Cook Builders Pty Ltd (in liq) Ineffective contracts Pavey & Matthews Pty Ltd v Paul Partially performed contracts Steele v Tardiani Defence—change of position Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd Questions for reflection CHAPTER 25: EQUITABLE REMEDIES Introduction Specific performance JC Williamson Ltd v Lukey and Mulholland Defences to specific performance Where the contract was entered as a result of mistake or misrepresentation Where enforcement would create undue hardship upon the defendant Fairborne Pty Ltd v Strata Store Noosa Pty Ltd Where the plaintiff is in breach of contract or not ready, willing, and able to perform his or her obligations under the contract Performance of the contract is not possible or would be futile Where the plaintiff is guilty of laches That the contract is unenforceable because of informality Injunction JC Williamson Ltd v Lukey and Mulholland Questions for reflection PART 8: CONSUMER PROTECTION CHAPTER 26: UNFAIR CONTRACT TERMS Introduction Contracts to which unfair terms applies Consumer contract Small business contract Nature of goods and services Less than twenty employees Meaning of ‘business’ Limit on upfront price of contract Standard form contract Australian Consumer Law, s 27 Application to contracts after commencement Exempt contracts Identifying unfair terms Excluded terms Office of Fair Trading v Ashbourne Management Services Ltd Unfair Contract Terms Law: A Guide for Businesses and Legal Practitioners Australian Consumer Law, s 26(2) Office of Fair Trading v Foxtons Ltd Test for an ‘unfair term’ Approach to assessment—whole of contract and transparency Australian Consumer Law, s 24(2), (3) Director of Consumer Affairs (Vic) v AAPT Australian Consumer Law, s 25 Director of Consumer Affairs Victoria v Backloads.com Pty Ltd Remedies and enforcement Declaration Compensation Injunction Questions for reflection CHAPTER 27: CONSUMER GUARANTEES Introduction Consumer guarantees relating to the supply of goods Supply Goods Consumers Trade or commerce Goods that are not covered Guarantee as to title—s 51 Australian Consumer Law, s 51(1) Guarantee as to undisturbed possession—s 52 Guarantee as to undisclosed securities—s 53 Australian Consumer Law, s 53(1) Guarantee as to acceptable quality—s 54 Australian Consumer Law, s 54(1) Australian Consumer Law, s 54(2) Guarantee as to fitness for any disclosed purpose—s 55 Australian Consumer Law, s 55(2) Guarantee relating to supply of goods by description—s 56 Guarantee relating to supply of goods by way of sample or demonstration model—s 57 Australian Consumer Law, s 57(1) Guarantee as to repairs and spare parts—s 58 Guarantee as to express warranties—s 59 Australian Consumer Law, s 2 Australian Consumer Law, s 102(3) Competition and Consumer Regulations 2010 (Cth), r 90 Consumer guarantees relating to the supply of services Guarantee as to due care and skill—s 60 Guarantee as to reasonable time for supply—s 62 Remedies in relation to goods A major failure Australian Consumer Law, s 260 Remedies against suppliers for major failures Remedies against suppliers for minor failures Recovery of damages from the supplier for consequential loss Remedies against manufacturers of goods Australian Consumer Law, s 271(2) Australian Consumer Law, s 271(4) Manufacturers’ liability to indemnify suppliers of goods Remedies in relation to services A major failure Australian Consumer Law, s 268 Remedies for minor failures Damages for consequential loss Contracting out of consumer guarantees Terms that may be void Limiting liability Australian Consumer Law, s 64A Australian Consumer Law, s 64A(4) Recreational service providers Proof of transaction Questions for reflection Index