Australian Commercial Law [31 ed.]
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AUSTRALIAN COMMERCIAL LAW

Thomson Reuters (Professional) Australia Limited 19 Harris Street Pyrmont NSW 2009 Tel: (02) 8587 7000 Fax: (02) 8587 7100 [email protected] www.thomsonreuters.com.au For all customer inquiries please ring 1300 304 195 (for calls within Australia only)

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First edition (RK Yorston & EE Fortescue, Australian Mercantile Law) – 1939 Second edition – 1940 Seventeenth edition (C Turner) – 1985 Third edition – 1943 Eighteenth edition (C Turner) – 1990 Fourth edition – 1947 Nineteenth edition (C Turner) – 1992 Fifth edition – 1949 Twentieth edition (C Turner) – 1994 Sixth edition – 1950 Twenty-first edition (C Turner) – 1997 Seventh edition – 1952 Twenty-second edition (C Turner) – 1999 Eighth edition – 1955 Twenty-third edition (C Turner) – 2001 Ninth edition – 1957 Twenty-fourth edition (C Turner) – 2003 Tenth edition – 1958 Twenty-fifth edition (C Turner) – 2005 Eleventh edition – 1960 Twenty-sixth edition (C Turner) – 2006 Twelfth edition – 1963 Twenty-seventh edition (C Turner) – 2009 Thirteenth edition – 1966 Twenty-eighth edition (C Turner) – 2011 Fourteenth edition (Editor: PE Powell) – 1971 Twenty-ninth edition (C Turner & J Trone) – 2013 Fifteenth edition (Editor: C Turner) – 1978 Thirtieth edition (C Turner & J Trone) – 2015 Sixteenth edition (C Turner) – 1981 Thirty-first edition (C Turner & J Trone) – 2016

Australian Commercial Law CLIVE TURNER LLB (B'ham), PhD (ANU) Sometime Associate Professor of Law University of Queensland

JOHN TRONE BA, LLB, PhD (UQ) Research Fellow Curtin Law School Curtin University

LAWBOOK CO. 2017

THIRTY—FIRST EDITION

Published in Sydney by Thomson Reuters (Professional) Australia Limited ABN 64 058 914 668 19 Harris Street, Pyrmont, NSW National Library of Australia Cataloguing-in-Publication entry Turner, Clive, 1942– author. Australian commercial law / Clive Turner, John Trone. 31st edition. 9780455238081 (paperback) Includes index. Commercial Law — Australia. Trone, John, 1970– author. 346.9407 © 2016 Thomson Reuters (Professional) Australia Limited This publication is copyright. Other than for the purposes of and subject to the conditions prescribed under the Copyright Act, no part of it may in any form or by any means (electronic, mechanical, microcopying, photocopying, recording or otherwise) be reproduced, stored in a retrieval system or transmitted without prior written permission. Inquiries should be addressed to the publishers. Copyright of Cth legislative material: All Commonwealth legislative material is reproduced by permission but does not purport to be the official or authorised version. It is subject to Commonwealth of Australia copyright. For reproduction or publication beyond that permitted by the Copyright Act 1968 (Cth), permission should be sought in writing from the current Commonwealth Government agency with the relevant policy responsibility.

Editor: Patrick Wu Product Developer: Vickie Ma Publisher: Robert Wilson Printed by Ligare Pty Ltd, Riverwood, NSW

PEFC/21-31-17

This book has been printed on paper certified by the Programme for the Endorsement of Forest Certification (PEFC). PEFC is committed to sustainable forest management through third party forest certification of responsibly managed forests. For more info: http://www.pefc.org

To Sam, Lilliana and Max

PREFACE TO THE THIRTY—FIRST EDITION Each chapter has been thoroughly updated to incorporate the legislative amendments and case law developments since the previous edition. The significant new contract cases in this edition include the High Court decisions in Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 on estoppel (Chapter 5) and collateral contracts (Chapter 9); Gnych v Polish Club Ltd (2015) 255 CLR 414 concerning illegal contracts (Chapter 8); and Paciocco v Australian and New Zealand Banking Group Ltd (2016) 70 ALJR 835 where late payment fees charged on a customer’s credit card were held not to constitute penalties (Chapter 12). The Victorian Court of Appeal decision in Beerens v BlueScope Distribution Pty Ltd (2012) 39 VR 1 on economic duress is also included (Chapter 7). Chapter 17 (Consumer Protection) includes the legislative changes made by the Competition and Consumer Amendment (Payment Surcharges) Act 2016 (Cth) under which excessive credit card surcharges have been prohibited and the Treasury Legislation Amendment (Small Business and Unfair Contract Terms) Act 2015 (Cth) which extended the unfair contracts provisions of the Australian Consumer Law to standard form small business contracts. Case law developments include the decisions of the Federal Court in Australian Competition and Consumer Commission v Chrisco Hampers Australia Pty Ltd [2015] ATPR 42-513; [2015] FCA 1204 on unfair contract terms and Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] ATPR 42-501; [2015] FCA 83 concerning false or misleading representations about the performance characteristics, benefits or uses of goods. Chapter 18 (Restrictive Trade Practices) incorporates the discussion of the concept of “market” by the Federal Court in Flight Centre Ltd v Australian Competition and Consumer Commission (2015) 234 FCR 367 and Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 78. Chapter 24 (Negotiable Instruments II – Cheques) incorporates the recent Victorian Court of Appeal decision in National Australia Bank Ltd v Rose [2016] VSCA 169 regarding the impact upon the enforceability of bank guarantees of non-compliance with the Code of Banking Practice. There have been several important High Court decisions in Torts (Chapter 28), including: Attwells v Jackson Lalic Lawyers Pty Limited (2016) 90 ALJR 572 concerning the scope of advocate’s immunity; Badenach v Calvert (2016) 90 ALJR 610 on the duty of care of a solicitor to a beneficiary under a will; Brookfield Multiplex Ltd v Owners Corpn Strata Plan 61288 (2014) 254 CLR 185 regarding the liability of a builder for latent defects in a commercial apartment complex; and King v Philcox (2015) 255 CLR 304 on the issue of damages for mental harm. Chapter 30 (Intellectual Property) outlines the new mechanism for combatting online piracy in the Copyright Amendment (Online Infringement) Act 2015 (Cth). This chapter includes the significant Full Federal Court decision in Scandinavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd [2016] FCAFC 91 on parallel importing and the landmark decision of the High Court in D’Arcy v Myriad Genetics Inc (2015) 89 ALJR 924 that claims for the isolated breast cancer gene BRCA1 were not patentable. In Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2014) 254 CLR 337 the High Court delivered an important decision on the meaning of “inherently adapted” in trade marks law. The chapter also outlines the principal features of the new Franchising Code of Conduct, which came into effect on 1 January 2015. Chapter 31 (Bankruptcy) incorporates the amendments made by the Insolvency Law Reform Act 2016 (Cth), which inserted a new Insolvency Practice Schedule into the Act. We would like to thank the following for updating the chapters in their specialist fields: Associate Professor Paul Ali, University of Melbourne Law School [Credit Law (Chapter 19), Partnership (Chapter 26) and Company Law (Chapter 27)]; Associate Professor Margaret Stephenson, TC Beirne School of Law, University of Queensland [Property (Chapter 22)]; Dr Alan Davidson, Senior Lecturer, TC Beirne School of Law, University of Queensland

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[The Law of Electronic Commerce (Chapter 16)]; Dr Karen Vaggelas [Law of Torts (Chapter 28)] and Ben French, Department of Employment Relations and Human Resources, Griffith University Business School and Dr Mark Mourell [The Law of Employment (Chapter 34)]. We extend our appreciation to Patrick Wu for his editorial work and to Vickie Ma, Product Developer at Thomson Reuters for her encouragement in undertaking this thirty-first edition of Australian Commercial Law. CLIVE TURNER JOHN TRONE Indooroopilly and Yeronga, Queensland 5 November 2016

TABLE OF CONTENTS Preface to the Thirty—first Edition........................................................................................................................................... vii Table of Cases ............................................................................................................................................................................... xi Table of Statutes ....................................................................................................................................................................... xliii Table of Abbreviations .......................................................................................................................................................... lxxxvi Glossary.............................................................................................................................................................................. lxxxviii

PT 1 INTRODUCTION ......................................................................................................................................... 1 1 The Australian Legal System ......................................................................................................................... 3

PT 2 LAW OF CONTRACT ................................................................................................................................ 47 2 Introduction to the Law of Contract ........................................................................................................ 49 3 Offer and Acceptance ................................................................................................................................... 55 4 Intention to Create Legal Relations .......................................................................................................... 65 5 Consideration, Promissory Estoppel and Formalities ............................................................................. 73 6 Contractual Capacity ................................................................................................................................... 87 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts .............................. 95 8 Legality of Object ........................................................................................................................................ 135 9 Contents and Interpretation of the Contract......................................................................................... 155 10 Operation of the Contract........................................................................................................................ 173 11 Termination of a Contract ........................................................................................................................ 181 12 Remedies..................................................................................................................................................... 197

PT 3 COMMERCIAL TRANSACTIONS............................................................................................................ 219 13 Agency ......................................................................................................................................................... 221 14 Sale of Goods ............................................................................................................................................. 247 15 International Sales Contracts .................................................................................................................. 291 16 The Law of Electronic Commerce ........................................................................................................... 315 17 Consumer Protection................................................................................................................................ 337 18 Restrictive Trade Practices...................................................................................................................... 399 19 Credit Law.................................................................................................................................................. 437 20 Guarantees ................................................................................................................................................ 483 21 Bailments ................................................................................................................................................... 493 22 Property ...................................................................................................................................................... 513 23 Negotiable Instruments I: Bills of Exchange......................................................................................... 555 24 Negotiable Instruments II: Cheques...................................................................................................... 587

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25 Insurance ................................................................................................................................................... 625 PT 4 BUSINESS ORGANISATION................................................................................................................... 675 26 Partnership................................................................................................................................................ 677 27 Company Law............................................................................................................................................ 705 PT 5 ALLIED AREAS OF LAW.......................................................................................................................... 767 28 Law of Torts .............................................................................................................................................. 769 29 Law of Trusts ............................................................................................................................................. 813 30 Intellectual Property................................................................................................................................ 833 31 Bankruptcy ................................................................................................................................................. 927 32 Criminal Law.............................................................................................................................................. 971 33 Business Ethics.......................................................................................................................................... 995 34 The Law of Employment......................................................................................................................... 1013

Index ........................................................................................................................................................................................ 1047

Table of Cases A A-One Accessory Imports Pty Ltd v Off Road Imports Pty Ltd (1996) 65 FCR 478 .............. 30.100 A & M Records Inc v Napster Inc 114 F Supp 2d 896 (2000) ................................................ 16.590 A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308 ........................ 8.470 A1 Perfect Plumbing Pty Ltd v BMW Prestige Pty Ltd (2006) 230 ALR 331 ........................... 21.80 ABN AMRO Bank NV v Bathurst Regional Council (2014) 224 FCR 1 .............. 17.1430, 25.760 ACCC v Chen (2003) 132 FCR 309 ...... 16.360, 16.380 ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312 .............................................................. 9.80 ACTEW Corporation Ltd v Mihaljevic (2011) 247 FLR 186 .................................................. 28.370 AL Underwood Ltd v Bank of Liverpool Ltd [1924] 1 KB 775 ............................................ 24.720 ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (2012) 245 CLR 338 ...................................... 10.140 ASIC v Adler (2002) 168 FLR 253 .......... 27.40, 27.650, 27.780 ASIC v The Cash Store Pty Ltd (in liquidation) (No 2) [2015] FCA 93 .................. 19.40 ATCO Controls Pty Ltd (In liq) v Newtronics Pty Ltd (In liq) (2009) 25 VR 411 .................... 4.220 AWA Ltd v Daniels t/a Deloitte Haskins & Sells (1992) 10 ACLC 933 ............................. 28.380 Abdurahman v Field (1987) 8 NSWLR 158 .......... 8.580 Abela v Public Trustee [1983] 1 NSWLR 308 ..... 22.430 Abram v AV Jennings Ltd (2002) 84 SASR 363 .................................................................... 9.30 Abundant Earth Pty Ltd v R & C Products Pty Ltd (1985) 7 FCR 233 ............................. 17.750 Accordent Pty Ltd v Bresimark Nominees Pty Ltd (2008) 101 SASR 286 ..................... 5.210, 5.220 Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514 ................................................. 12.290 Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 ................................... 8.500 Adamson v West Perth Football Club Inc (1979) 27 ALR 475 .......................................... 8.500 Adeels Palace Pty Ltd v Mourabak (2009) 239 CLR 420 .................................... 28.120, 28.500 Adelaide Petroleum NL v Poseidon Ltd (1990) 98 ALR 431 ........................................ 17.670 Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316 .................................................... 9.140

Adnyamathanha People No 3 Native Title Claim v State of South Australia (2014) 218 FCR 148 ............................................... 22.1150 Adonia Holding GmbH v Adonia Organics LLC 2014 WL 7178389 (D Ariz 2014) ............ 15.40 Adour Holdings Pty Ltd (in liq) v Commonwealth Bank of Australia [1991] ATPR 41-147 ................................................... 24.40 Adrenaline Pty Ltd v Bathurst Regional Council (2015) 322 ALR 180 ......................... 12.470 Advance (NSW) Insurance Agencies Pty Ltd v Matthews (1989) 166 CLR 606 ........ 25.280, 25.290 Advanced Building Systems Pty Ltd v Ramset Fasteners (Aust) Pty Ltd (1998) 194 CLR 171 .............................................................. 30.1810 Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 ........................... 9.20 Agriculturist Cattle Insurance Co, Re (1870) LR 5 Ch App 725 ............................................. 26.10 Agripay Pty Ltd v Byrne [2011] 2 Qd R 501 ......... 7.951 Agripower Barraba Pty Ltd v Blomfield (2015) 317 ALR 202 ...................................... 22.340 Agussol v Australian Finance Direct Limited [2004] ASC 155-066; [2004] VCAT 1560 ...... 19.760 Air Caledonie v Commonwealth (1988) 165 CLR 462 .......................................................... 1.130 Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 .......................................... 9.80 Ajayi v Briscoe [1964] 1 WLR 1326 ..................... 5.230 Akai Pty Ltd v People’s Insurance Co Ltd (1996) 188 CLR 418 ......................... 15.480, 15.490 Akiba v Commonwealth (2013) 250 CLR 209 .... 22.960, 22.1020 Akron Securities v Iliffe (1997) 41 NSWLR 353 ................................................................ 17.920 Aktas v Westpac Banking Corporation Ltd (2010) 241 CLR 79 .......................................... 24.40 Alati v Kruger (1955) 94 CLR 216 ....................... 7.630 Albarran v Queensland Excavation Services Pty Ltd (2013) 277 FLR 337 ........................ 19.1050 Albion Insurance Co Ltd v Government Insurance Office (NSW) (1969) 121 CLR 342 ................................................................ 25.880 Alexander v Rayson [1936] 1 KB 169 ................... 8.320 Alexander Stenhouse Ltd v Austcan Investments Pty Ltd (1993) 67 ALJR 421 ....... 25.210 Aliotta v Broadmeadows Bus Service Pty Ltd [1988] ATPR 40-873 ...................................... 13.590 All Covers and Accessories Pty Ltd v Sidawi (2012) 36 VR 113 ............................................ 21.90 Allcard v Skinner (1887) 36 Ch D 145 ...... 7.800, 7.860 Allen v Chadwick (2015) 256 CLR 148 .............. 28.560

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Allergan Inc v Di Giacomo (2011) 199 FCR 126 .............................................................. 30.2325 Allied Concrete Co v Lester 736 SE 2d 699 (2013) ............................................... 16.250, 16.260 Allied Mills Ltd v Gwydir Valley Oilseeds Pty Ltd [1978] 2 NSWLR 26 ............................... 14.620 Alphapharm Pty Ltd v H Lundbeck A/S (2014) 254 CLR 247 .................................... 30.2040 Aluminium Industrie Vaassen BV v Romalpa Aluminium Ltd [1976] 1 WLR 676 ................ 14.550 Alyawarr v Northern Territory (2005) 145 FCR 442 ...................................................... 22.1010 Amaca Pty Ltd v Booth (2011) 246 CLR 36 ....... 28.500 Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 ............. 1.100 Amber Size Chemical Co v Menzel [1913] 2 Ch 239 ............................................................. 8.400 Amco Ukrservice v American Meter Co 312 F Supp 2d 681 (ED Pa 2004) .............................. 15.40 American Biophysics v Dubois Marine Specialties 411 F Supp 2d 61 (DRI 2006) ......... 15.50 American Mint LLC v GOSoftware 2006 US Dist LEXIS 1569 (MD Pa 2006) ...................... 15.50 America’s Collectibles Network Inc v Timlly (HK) 746 F Supp 3d 914 (ED Tenn 2010) ........ 15.20 Anaesthetic Supplies Pty Ltd v Rescare Ltd (1994) 50 FCR 1 .......................................... 30.1830 Ancher Mortlock Murray & Woolley Pty Ltd v Hooker Homes Pty Ltd [1971] 2 NSWLR 278 ..................................... 30.180, 30.350 Andar Transport Pty Ltd v Brambles Ltd (2004) 217 CLR 424 ........................................ 20.30 Anderson v Glass (1868) 5 WW & A’B (L) 152 .................................................................. 5.160 Anderson Group Pty Ltd v Tynan Motors Pty Ltd (2006) 65 NSWLR 400 ........................... 21.350 Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 ..... 12.330, 24.40 Andrews v Parker [1973] Qd R 93 ........................ 8.200 Andrews Bros (Bournemouth) Ltd v Singer & Co Ltd [1934] 1 KB 17 ....................... 9.450, 14.390 Angus & Coote Pty Ltd v Render (1989) 16 IPR 387 ........................................................ 30.2750 Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 ....................................... 11.300, 20.180, 20.210 Ansell Rubber Co Pty Ltd v Allied Rubber Industries Pty Ltd [1967] VR 37 .................. 30.2720 Ansett Transport Industries (Operations) Pty Ltd v Australian Federation of Airline Pilots [1991] 1 VR 637 ..................... 34.440, 34.460 Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 .............................. 1.850, 30.1250 Apand Pty Ltd v Kettle Chip Co Pty Ltd (No 2) (1999) 88 FCR 568 .................................. 30.2680 Apand Pty Ltd v The Kettle Chip Co Pty Ltd (1994) 52 FCR 474 ........................................ 17.120 Apotex Pty Ltd v Sanofi-Aventis Australia Pty Ltd (2013) 253 CLR 284 .............. 30.1830, 30.2100 Applicant v Respondent [PR548852] .................. 34.110

Aqua-Marine Marketing Pty Ltd v Pacific Reef Fisheries (Australia) Pty Ltd (No 5) [2012] FCA 908 ................................ 14.286, 14.345 Arab Bank Ltd v Ross [1952] 2 QB 216 ............. 23.240 Argyll v Argyll [1967] 1 Ch 302 ........................ 30.2700 Aristocrat Technologies Australia Pty Ltd v DAP Services (Kempsey) Pty Ltd (in liq) (2007) 157 FCR 564 .................................... 30.1210 Armagas Ltd v Mundogas SA [1986] AC 717 ..... 13.640 Armory v Delamirie (1722) 1 Stra 505; 93 ER 664 ....................................................... 22.40, 22.50 Armstrong v Executive Office of the President 1 F 3d 1274 (DC Cir 1994) ............................ 16.240 Armstrong v Strain [1952] 1 KB 232 .................. 13.630 Armstrong, Re [1960] VR 202 ............................ 29.290 Ascot Four Pty Ltd v Australian Competition and Consumer Commission (2009) 176 FCR 106 ........................................................ 17.370 Ashford Shire Council v Dependable Motors Pty Ltd (1960) 104 CLR 139 ......................... 14.300 Ashington Piggeries Ltd v Christopher Hill Ltd [1972] AC 441 ............................ 14.240, 14.360 Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828 ....................... 8.140 Ashrafi Persian Trading Co Pty Ltd v Ashrafinia [2002] Aust Torts Reports 81-636; [2001] NSWCA 243 ......................... 28.120 Ashton v Pratt (2015) 88 NSWLR 281 ....... 4.70, 8.200, 9.20 Associated Alloys Pty Ltd v ACN 001 452 106 Pty Ltd (2000) 202 CLR 588 .................. 14.560 Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 ..................................................... 9.200 Associated Securities Ltd and the Companies Act, Re [1981] 1 NSWLR 742 ....................... 29.130 Association for Molecular Pathology v Myriad Genetics Inc 596 US 12-398 (2013) .......................................................... 30.1840 Astley v Austrust Ltd (1999) 197 CLR 1 ............ 12.250, 28.30, 28.380, 28.560 Astor Centre, The [2013] QBCCMCmr 249 ......... 16.90 AstraZeneca AB v Apotex Pty Ltd (2015) 89 ALJR 798 ..................................................... 30.1900 Atkinson v Commissioner of Taxation (2015) 318 ALR 585 ................................................. 23.450 Attorney-General v PYA Quarries Ltd [1957] 2 QB 169 ....................................................... 28.740 Attorney-General (Cth) v The Queen; Ex parte Boilermakers Society of Australia (1957) 95 CLR 529 ............................................ 1.90 Attorney-General (SA) v Corporation of the City of Adelaide (2013) 249 CLR 1 .................. 16.60 Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572 ........................... 1.540, 28.380 Attwood v Lamont [1920] 3 KB 571 .................... 8.400 Atwell v Roberts (2013) 43 WAR 507 ................ 26.490 Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202 ............ 11.480 Austar Finance v Campbell (2007) 215 FLR 464 .................................................... 16.110, 16.240

Table of Cases

Australasian Meat Industry Employees Union v Mudginberri Station Pty Ltd (1985) 61 ALR 417 ........................................................ 34.490 Australasian Performing Right Assoc v Canterbury-Bankstown League Club Ltd [1964] NSWR 138 ......................................... 30.370 Australasian Performing Right Assoc Ltd v Commonwealth Bank of Australia (1992) 40 FCR 59 ..................................................... 30.380 Australasian Performing Right Assoc Ltd v Tolbush Pty Ltd [1986] 2 Qd R 146 ............... 30.370 Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 ........................................... 12.480, 12.490 Australia Meat Holdings Pty Ltd v Trade Practices Commission [1989] ATPR 40-932 ........................................................... 18.640 Australia and New Zealand Banking Group Ltd v Loftus [2016] VSC 58 ........................... 22.490 Australian Associated Motor Insurers Ltd v Ellis (1990) 54 SASR 61 ....... 25.110, 25.600, 25.610 Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106 .............. 1.190 Australian Capital Territory v Munday (2000) 99 FCR 72 ....................................................... 8.510 Australian Communications Network Pty Ltd v Australian Competition and Consumer Commission (2005) 146 FCR 413 ................. 17.610 Australian Communications and Media Authority v Clarity1 Pty Ltd (2006) 150 FCR 494 ........................................................ 16.550 Australian Communications and Media Authority v Radio 2UE Sydney Pty Ltd (2009) 178 FCR 199 ...................................... 33.120 Australian Competition and Consumer Commission v ABB Transmission and Distribution Ltd [2001] ATPR 41-815 ........... 18.570 Australian Competition and Consumer Commission v ACN 099 814 749 Pty Ltd [2016] FCA 403 ........................................... 17.1360 Australian Competition and Consumer Commission v AGL Sales Pty Ltd [2013] ATPR 42-449; [2013] FCA 1030 .................. 17.1370 Australian Competition and Consumer Commission v AGL South Australia Pty Ltd (2015) 146 ALD 385; [2015] FCA 399 .... 17.710 Australian Competition and Consumer Commission v AirAsia Berhad Co [2012] FCA 1413 ...................................................... 17.625 Australian Competition and Consumer Commission v Apple Pty Ltd [2012] ATPR 42-404; [2012] FCA 646 ................... 17.710, 17.713 Australian Competition and Consumer Commission v Australia and New Zealand Banking Group Ltd (2015) 236 FCR 78 ........ 18.482 Australian Competition and Consumer Commission v Bill Express Ltd (in liq) (2009) 180 FCR 105 ...................................... 18.340 Australian Competition and Consumer Commission v CG Berbatis Holdings Pty Ltd (2003) 214 CLR 51 .................... 17.210, 17.220

Australian Competition and Consumer Commission v Channel Seven Brisbane Pty Ltd (2009) 239 CLR 305 ............................... 17.190 Australian Competition and Consumer Commission v Chrisco Hampers Australia Pty Ltd (2015) 239 FCR 33; [2015] FCA 1204 ............................................... 17.315, 17.1400 Australian Competition and Consumer Commission v Chrisco Hampers Australia Pty Ltd (No 2) [2016] FCA 144 ..................... 17.315 Australian Competition and Consumer Commission v Coles Group Ltd [2014] ATPR 42-467; [2014] FCA 363 ...................... 18.585 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2014) 317 ALR 73 ............ 17.132 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd [2014] FCA 1405 ................ 17.710 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (2015) 327 ALR 540 ......... 17.132, 17.710 Australian Competition and Consumer Commission v Coles Supermarkets Australia Pty Ltd (No 2) [2014] ATPR 42-287; [2014] FCA 1022 .............................. 17.132 Australian Competition and Consumer Commission v Colgate-Palmolive Ltd (No 2) [2016] FCA 528 ............................ 18.530, 18.660 Australian Competition and Consumer Commission v Dataline.Net.Au Pty Ltd (2007) 161 FCR 513 ...................................... 18.550 Australian Competition and Consumer Commission v Dateline Imports Pty Ltd [2015] FCAFC 114 ........................................ 17.450 Australian Competition and Consumer Commission v Dell Computer Pty Ltd (2002) 126 FCR 170 ...................................... 17.350 Australian Competition and Consumer Commission v Derodi Pty Ltd [2016] FCA 365 ................................................................ 17.133 Australian Competition and Consumer Commission v Excite Mobile Pty Ltd (No 2) [2013] ATPR 42-454; [2013] FCA 1267 .... 17.990 Australian Competition and Consumer Commission v George Weston Foods Ltd (2004) 210 ALR 486 ...................................... 18.530 Australian Competition and Consumer Commission v Giraffe World Australia Pty Ltd (1999) 95 FCR 302 ................................. 17.630 Australian Competition and Consumer Commission v Gordon Superstore Pty Ltd [2014] ATPR 42-474; [2014] FCA 452 .......... 17.375 Australian Competition and Consumer Commission v Harvey Norman Holdings Ltd [2011] ATPR 43-384; [2011] FCA 1407 ............................................................... 17.711 Australian Competition and Consumer Commission v Jetstar Airways Pty Ltd [2016] ATPR 42-523; [2015] FCA 1263 ........ 17.372

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Australian Competition and Consumer Commission v Jutsen (No 3) (2011) 206 FCR 264 ............................................. 17.20, 17.610 Australian Competition and Consumer Commission v Leahy Petroleum (No 3) (2005) 215 ALR 301 ...................................... 18.530 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] ATPR 42-477; [2013] FCAFC 90 ........ 17.255 Australian Competition and Consumer Commission v Lux Distributors Pty Ltd (No 2) [2015] ATPR 42-510; [2015] FCA 903 ................................................................ 17.255 Australian Competition and Consumer Commission v Lux Pty Ltd [2004] FCA 926 ................................................................ 17.250 Australian Competition and Consumer Commission v Maritime Union of Australia (2001) 114 FCR 472 ....................... 17.640 Australian Competition and Consumer Commission v Marksun Australia Pty Ltd [2011] ATPR 42-363; [2011] FCA 695 ........... 17.395 Australian Competition and Consumer Commission v McCaskey (2000) 104 FCR 8 .................................................................... 17.640 Australian Competition and Consumer Commission v Metcash Trading Ltd (2011) 198 FCR 297 ...................................... 18.451 Australian Competition and Consumer Commission v Midland Brick Co Pty Ltd (2004) 207 ALR 329 ...................................... 18.580 Australian Competition and Consumer Commission v OmniBlend Australia Pty Ltd [2015] ATPR 42-509; [2015] FCA 871 .... 18.430 Australian Competition and Consumer Commission v Ozsale Pty Ltd [2016] FCA 1049 ............................................................ 17.1310 Australian Competition and Consumer Commission v P T Garuda Indonesia Ltd (2016) 330 ALR 230 ...................................... 18.480 Australian Competition and Consumer Commission v Pioneer Concrete (Qld) Pty Ltd [1996] ATPR 41-457 ............................... 18.560 Australian Competition and Consumer Commission v Pirovic Enterprises Pty Ltd (No 2) [2014] ATPR 42-483; [2014] FCA 1028 .............................................................. 17.133 Australian Competition and Consumer Commission v Qantas Airways Ltd (2008) 253 ALR 89 ................................................... 18.580 Australian Competition and Consumer Commission v RL Adams Pty Ltd [2015] FCA 1016 ...................................................... 17.133 Australian Competition and Consumer Commission v Radio Rentals Ltd (2005) 146 FCR 292 .................................... 17.230, 17.250 Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 4) [2015] FCA 1408 ................................................... 17.495, 33.30

Australian Competition and Consumer Commission v Reckitt Benckiser (Australia) Pty Ltd (No 7) [2016] FCA 424 .... 17.495, 33.30, 33.40 Australian Competition and Consumer Commission v Reebok Australia Pty Ltd [2015] ATPR 42-501; [2015] FCA 83 ............ 17.715 Australian Competition and Consumer Commission v SensaSlim Australia Pty Ltd (in liq) (No 7) [2016] FCA 484 ...................... 17.990 Australian Competition and Consumer Commission v Sensaslim Australia Pty Ltd (No 1) (2011) 196 FCR 566 ................ 17.20, 17.720 Australian Competition and Consumer Commission v Snowdale Holdings Pty Ltd [2016] FCA 541 ............................................. 17.133 Australian Competition and Consumer Commission v Stott [2013] ATPR 43-439; [2013] FCA 88 ............................................... 17.990 Australian Competition and Consumer Commission v TPG Internet Pty Ltd (2013) 250 CLR 640 ......................... 17.135, 17.940 Australian Competition and Consumer Commission v Taxsmart Group Pty Ltd [2014] ATPR 42-473; [2014] FCA 487 ........ 30.2800 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 4) [2013] ATPR 42-448; [2013] FCA 665 .......... 17.133 Australian Competition and Consumer Commission v Turi Foods Pty Ltd (No 5) [2013] ATPR 42-450; [2013] FCA 1109 ......... 17.133 Australian Competition and Consumer Commission v Visa Inc [2015] ATPR 42-511; [2015] FCA 1020 .............................. 18.530 Australian Competition and Consumer Commission v Visy Industries Holdings Pty Ltd (No 3) (2007) 244 ALR 673 ......... 18.540, 33.20 Australian Competition and Consumer Commission v Woolworths Ltd [2014] ATPR 42-466; [2014] FCA 364 ...................... 18.585 Australian Competition and Consumer Commission v Woolworths Ltd [2016] ATPR 42-521; [2016] FCA 44 ........................ 17.710 Australian Competition and Consumer Commission by Australian Association of Pathology Practices Inc, Re (2004) 206 ALR 271 ........................................................ 18.350 Australian Consolidated Press v Uren (1966) 117 CLR 185; [1969] 1 AC 590 ....................... 1.540 Australian Development Corporation Pty Ltd v White (2001) 189 ALR 266 ........................... 10.80 Australian European Finance Corp Ltd v Sheahan (1993) 60 SASR 187 .......................... 4.220 Australian Finance Direct Ltd v Director of Consumer Affairs Victoria (2007) 234 CLR 96 .......................................................... 19.270 Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 ................................................................ 12.440 Australian Knitting Mills Ltd v Grant (1933) 50 CLR 387 ................................................... 14.270

Table of Cases

Australian Mutual Provident Society v Derham (1979) 25 ACTR 3 ............................ 24.860 Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 ............................ 10.190 Australian Mutual Provident Society v Lose (1997) 9 ANZ Insurance Cases 61-381 ......... 25.400, 25.410 Australian Postal Corporation v Digital Post Australia Pty Ltd (No 2) (2012) 96 IPR 532 .............................................................. 30.2400 Australian Provincial Assurance Co Ltd v Coroneo (1938) 38 SR (NSW) 700 ................ 22.340 Australian Safeway Stores Pty Ltd v Zaluzna (1987) 162 CLR 479 ...................................... 28.120 Australian Securities and Investments Commission v Australian Lending Centre Pty Ltd (No 3) (2012) 213 FCR 380 ............ 17.1430 Australian Securities and Investments Commission v Carey (No 3) (2006) 232 ALR 577 .......................................................... 33.20 Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364 .......................................... 9.20 Australian Securities and Investments Commission v Hellicar (2012) 247 CLR 345 ................................................................ 27.740 Australian Securities and Investments Commission v Macdonald (No 11) (2009) 256 ALR 199 ................................................... 33.20 Australian Video Retailers Association Ltd v Warner Home Video Pty Ltd (2001) 114 FCR 324 ........................................................ 30.420 Australian and International Pilots Association v Fair Work Australia (2012) 202 FCR 200 ................................................. 34.470 Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 ........... 9.80 Autodesk Australia Pty Ltd v Cheung (1990) 94 ALR 472 ................................................. 30.1190 Autodesk Inc v Dyason (1992) 173 CLR 330 ..... 30.150 Autodesk Inc v Dyason (No 2) (1993) 176 CLR 300 ........................................................ 30.150 Automobile Finance Co of Australia Ltd v Law (1933) 49 CLR 1 .................................... 23.970 Avel Pty Ltd v Multicoin Amusements Pty Ltd (1990) 171 CLR 88 ........................................ 30.360 Avellino v All Australia Netball Association Ltd (2004) 87 SASR 504 .................................. 8.500 Avery v Bowden (1855) 5 E & B 714; 119 ER 647 ................................................................. 11.200

B BB Australia Pty Ltd v Karioi Pty Ltd (2010) 278 ALR 105 ........................................ 8.481, 8.482 BG Transport Service Ltd v Marston Motor Co Ltd [1970] 1 Lloyd’s Rep 371 .................... 21.40 BHP Billiton Ltd v van Soest (2014) 121 SASR 256 ....................................................... 28.100 BHP Steel Ltd v HH Robertson (Australia) Pty Ltd [2002] NSWSC 336 ........................... 14.570

BP Oil International Ltd v Petroecuador 332 F 3d 333 (5th Cir 2003) ...................... 15.50, 15.140 BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266 ....... 9.260, 9.270 BS Brown & Sons Ltd v Craiks [1970] 1 WLR 752 ....................................................... 14.270 Badenach v Calvert (2016) 90 ALJR 610 ............ 28.380 Bahin v Hughes (1886) 31 Ch D 390 .................. 29.650 Bahr v Nicolay (No 2) (1988) 164 CLR 604 ....... 22.490 Baigent v Random House Group Ltd [2007] All ER (D) 456; (2007) 72 IPR 195 ................ 30.230 Bainbridge v James (2013) 39 VR 457 ................ 28.120 Baldry v Marshall [1925] 1 KB 260 .................... 14.370 Balfour v Balfour [1919] 2 KB 571 ................ 4.30, 4.40 Ball-Guymer v Livantes (1990) 102 FLR 327 ...... 22.340 Balmain New Ferry Co v Robertson (1906) 4 CLR 379 ........................................................ 28.650 Balog v Independent Commission Against Corruption (1990) 169 CLR 625 ..................... 1.420 Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 ........................................... 7.1050, 9.360 Baltic Shipping Co v Dillon (1993) 176 CLR 344 .............. 7.1050, 9.360, 12.210, 12.230, 12.240 Bank of America Australia Ltd v Ceda Jon International Pty Ltd (1988) 17 NSWLR 290 .................................................................. 8.100 Bank of England v Vagliano Bros [1891] AC 107 ................................................... 23.100, 24.140 Bank of New South Wales v Murphett [1983] VR 489 .......................................................... 24.840 Bank of New South Wales v Rogers (1941) 65 CLR 42 ............................................................ 20.70 Bank of Van Diemen’s Land v Bank of Victoria (1871) LR 3 PC 526 ......................... 23.710 Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 ....................................................... 4.140, 4.220 Barac (t/as Exotic Studios) v Farnell (1994) 53 FCR 193 .......................................................... 8.200 Barclays Bank Ltd v WJ Simms Son & Cooke (Southern) Ltd [1980] QB 677 ....................... 24.840 Barns v Barns (2003) 214 CLR 169 ...................... 1.640 Barrow, Lane & Ballard v Phillip Phillips & Co [1929] 1 KB 574 ....................................... 14.610 Barton v Armstrong [1976] AC 104 ...................... 7.750 Barton v Deputy Commissioner of Taxation (1974) 131 CLR 370 ...................................... 31.210 Bashtannyk v New India Assurance Co Ltd [1968] VR 573 ............................................... 25.520 Bateman v Slatyer (1987) 71 ALR 553 .............. 30.2800 Battiato v Lagana [1992] 2 Qd R 234 ................. 28.630 Bauen Constructions Pty Ltd v Sky General Services Pty Ltd [2012] NSWSC 1123 ........... 16.110, 16.130 Baumgartner v Baumgartner (1987) 164 CLR 137 ................................................... 29.190, 29.200 Beale v Taylor [1967] 1 WLR 1193 ..................... 14.240 Beaton v McDevitt (1987) 13 NSWLR 162 ............ 5.30 Beck v Montana Constructions Pty Ltd [1964] NSWR 229 ....................................... 30.1070

xv

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Australian Commercial Law

Beecham Group Ltd v Bristol Laboratories Pty Ltd (1968) 118 CLR 618 ....................... 30.2120 Beerens v BlueScope Distribution Pty Ltd (2012) 39 VR 1 ................................................ 7.795 Behan v Obelon Pty Ltd (1985) 157 CLR 326 ...... 20.70 Behrens v Bertram Mills Circus Ltd [1957] 2 QB 1 .............................................................. 28.800 Beloff v Pressdram Ltd [1973] 1 All ER 241 ...... 30.260, 30.2730 Bendal Pty Ltd v Mirvac Project Pty Ltd (1991) 23 NSWLR 464 .................................. 28.680 Bendigo Regional Institute of Technical and Further Education, Board of v Barclay (2012) 248 CLR 500 ............ 34.110, 34.330, 34.340 Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17 ......................................... 7.1070 Benjamin v Ashikian [2007] ASC 155-086; [2007] NSWSC 735 ....................................... 19.200 Bennell v Western Australia (2006) 153 FCR 120 ................................................................ 22.980 Bennett v Minister of Community Welfare (1992) 176 CLR 408 ...................................... 28.500 Benson v Doloraine Pty Ltd (2015) 13 ASTLR 156; [2015] TASSC 41 ................................... 29.390 Beresford v Royal Insurance Co Ltd [1938] AC 586 .......................................................... 25.530 Berlei Hestia Industries Ltd v Bali Co Inc (1973) 129 CLR 353 .................................... 30.2400 Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 ............................................... 1.360 Bernstein v Skyviews & General Ltd [1978] QB 479 ............................................. 22.330, 28.680 Berry v Berry [1929] 2 KB 316 .............................. 11.90 Beswick v Beswick [1968] AC 58 ............... 10.20, 10.30 Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 ........................................ 1.160 Beth Schiffer Fine Photographic Arts Inc v Colex Imaging Inc 2012 WL 924380 (D NJ 2012) .......................................................... 15.40 Bettini v Gye (1876) 1 QBD 183 ................ 9.180, 9.190 Bevanere Pty Ltd v Lubidineuse (1985) 7 FCR 325 ................................................................ 17.150 Bibby Financial Services Australia Pty Ltd v Sharma [2014] NSWCA 37 ............... 34.290, 34.295 Big Rock Pty Ltd v Esanda Finance Corp Ltd (1992) 10 WAR 259 ....................................... 14.650 Birdanco Nominees Pty Ltd v Money (2012) 36 VR 341 ....................................................... 8.423 Black v Garnock (2007) 230 CLR 438 ............... 22.500 Black v Smallwood (1966) 117 CLR 52 ............. 13.520, 27.340 Blackwell v Wadsworth (1982) 64 FLR 145 ........ 30.40, 30.300 Blair v Goldpath & Callinan [2010] QCAT 483 ................................................................ 34.240 Blomley v Ryan (1956) 99 CLR 362 ..................... 7.900 Blyth v Birmingham Waterworks Co (1856) 11 Exch 781 ................................................... 28.390 Boardman v Phipps [1967] 2 AC 46 ................... 29.210

Bocardo SA v Star Energy UK Onshore Ltd [2011] 1 AC 380 ............................................ 22.330 Bodilingo Pty Ltd v Webb Projects Pty Ltd [1990] ASC 56-001 ........................................ 14.460 Bodney v Bennell (“Noongar”) (2008) 167 FCR 84 .......................................................... 22.980 Body Bronze International Pty Ltd v Fehcorp Pty Ltd (2011) 34 VR 536 .............................. 17.260 Bofinger v Kingsway Group Ltd (2009) 239 CLR 269 ................................ 20.30, 20.160, 29.210 Boghani v Nathoo [2012] Bus LR 429; [2011] EWHC 2101 .................................................. 26.535 Bojczuk v Gregorcewicz [1961] SASR 128 .............. 6.40 Bolton v Stone [1951] AC 850 ............................ 28.400 Bolton, Re; Ex parte Beane (1987) 162 CLR 514 .................................................................. 1.370 Bond v Larobi Pty Ltd (1992) 6 WAR 489 .......... 20.170 Bondina Ltd v Rollaway Shower Blinds Ltd [1986] 1 All ER 564 ....................................... 24.220 Bonython v Commonwealth [1951] AC 201 ....... 15.480 Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 .................... 9.20 Boral Besser Masonry Ltd v Australian Competition and Consumer Commission (2003) 215 CLR 374 ............ 18.220, 18.230, 18.240 Boral Bricks Pty Ltd v Cosmidis (No 2) (2014) 86 NSWLR 393 .................................. 28.560 Boral Resources (Qld) Pty Ltd v Pyke [1992] 2 Qd R 25 ......................................... 25.890, 25.900 Bostock & Co Ltd v Nicholson & Sons Ltd [1904] 1 KB 725 ............ 14.1040, 14.1050, 14.1080 Boulas v Angelopoulos (1991) 5 BPR 11,477 .... 14.1110 Boulton v Jones (1857) 2 H & N 564; 157 ER 232 .................................................. 7.230, 7.240 Bowditch v McEwan [2002] 2 Qd R 615 ............ 28.100 Boyd v Ryan (1947) 48 SR (NSW) 163 ............... 12.390 Bradken Resources Pty Ltd v Lynx Engineering Consultants Pty Ltd (2012) 210 FCR 21 .................................. 30.1890, 30.2020 Brady v Schatzel [1911] QSR 206 ....................... 28.640 Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 ....................... 3.230 Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 .................................................................. 1.180 Breskvar v Wall (1971) 126 CLR 376 ................. 22.490 Brice v Chambers [2014] QCA 310 .............. 4.140, 9.20 Brick & Pipe Industries Ltd v Occidental Life Nominees Pty Ltd [1992] 2 VR 279 ............... 27.330 Bridges v Hawkesworth (1851) 21 LJ QB 75 ...... 22.150 Bridgewater v Leahy (1998) 194 CLR 457 ............ 7.920 Bridle Estates Pty Ltd v Myer Realty Pty Ltd (1977) 51 ALJR 743 ........................................ 3.260 Brien v Dwyer (1978) 141 CLR 378 ...... 11.260, 24.120 Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 ............................... 11.310 Bristol-Myers Co v Beecham Group Ltd [1974] AC 646 ............................................. 30.1920 Bristol-Myers Company’s Application, Re [1969] RPC 146 ........................................... 30.1890

Table of Cases

Bristol-Myers Squibb Co v FH Faulding & Co Ltd (2000) 97 FCR 524 .......................... 30.1830 Brodie v Singleton Shire Council (2001) 206 CLR 512 .......................................................... 28.80 Brookfield Multiplex Ltd v Owners - Strata Plan 61288 (2014) 254 CLR 185 ...... 28.220, 28.370 Brosnan v Katke [2016] ATPR 42-515; [2016] FCAFC 1 ........................................................ 17.185 Brown v Heffer (1967) 116 CLR 344 ................. 22.680 Bruce v Tyley (1916) 21 CLR 277 ....................... 10.190 Brutan Investments Pty Ltd v Underwriting and Insurance Ltd (1980) 39 ACTR 47 .......... 22.630 Bryan v Maloney (1995) 182 CLR 609 ............... 28.370 Buckeridge v Mercantile Credits Ltd (1981) 147 CLR 654 ................................................. 20.180 Buckland v Clarke (1956) 56 SR (NSW) 185 ...... 13.790 Buckland v Massey [1985] 1 Qd R 502 .................. 8.80 Buckley v Tutty (1971) 125 CLR 353 ................... 8.450 Bulli Coal Mining Co v Osborne [1899] AC 351 ................................................................ 28.680 Burge v Swarbrick (2007) 232 CLR 336 ............ 30.190, 30.200 Burmic Pty Ltd v Goldview Pty Ltd [2003] 2 Qd R 477 ........................................................... 8.20 Burnie Port Authority v General Jones Pty Ltd (1994) 179 CLR 520 ............ 28.410, 28.780, 28.790 Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653 ...................................... 12.170 Burns v MMI-CMI Insurance Ltd (1994) 8 ANZ Insurance Cases 61-228 ........................ 25.260 Burton v Davies [1953] QSR 26 ......................... 28.650 Buseska v Sergio (1990) 102 FLR 157 ................ 13.260 Butcher v Lachlan Elder Realty Pty Ltd (2004) 218 CLR 592 ......................... 17.170, 17.180 Butera v Director of Public Prosecutions (Victoria) (1987) 164 CLR 180 ...................... 16.230 Butler v Craine [1986] VR 274 ............................. 5.370 Butler v Queensland [2014] 2 Qd R 423 ............. 28.170 Byers v Dorotea Pty Ltd (1986) 69 ALR 715 ...... 17.160 Byrne v Hoare [1965] Qd R 135 ......................... 22.190 Byrne & Co v Leon Van Tienhoven & Co (1880) 5 CPD 344 ............................................ 3.130

C CAJ Investments Pty Ltd v Lourandos (1998) 83 FCR 189 ................................................... 17.820 CAL No 14 Pty Ltd v Motor Accidents Board (2009) 239 CLR 390 ...................................... 28.150 CCOM Pty Ltd v Jiejing Pty Ltd (1994) 51 FCR 260 ...................................................... 30.1850 CDPP v Hill and Kamay [2015] VSC 86 ............. 27.798 CE Heath Casualty & General Insurance Ltd v Grey (1993) 32 NSWLR 25 ........................ 25.750 CG v Western Australia [2015] FCA 20 ............ 22.1150 CGU Insurance Ltd v AMP Financial Planning Pty Ltd (2007) 235 CLR 1 ............................. 25.110 CGU Insurance Ltd v Porthouse (2008) 235 CLR 103 ...................................................... 25.1190

CI JI Family Pty Ltd v National Australian Nappies (NAN) Pty Ltd [2014] FCA 79 ........ 16.335, 16.340 CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 ................................. 1.410 CMA Recycling Victoria Pty Ltd v Doubt Free Investments [2012] TASFC 7 .......................... 22.840 CNA Int’l Inc v Guangdong Kelon Electronical Holdings (ND Ill; No 05 C 5734; 3 September 2008) ................................. 15.20 CPT Custodian Pty Ltd v Commissioner of State Revenue (2005) 224 CLR 98 ................. 29.710 CSR Ltd v Resource Capital Australia Pty Ltd (2003) 128 FCR 408 ......................... 16.335, 16.350 Cadbury Schweppes Pty Ltd v Pub Squash Co Pty Ltd [1980] 2 NSWLR 851 ..................... 30.2580 Caj Amadio Constructions Pty Ltd v Kitchen (1991) 23 IPR 284 ....................................... 30.1130 Calabrese v Miuccio [1984] 1 Qd R 430 ............ 22.260 Caldwell v JA Neilson Investments Pty Ltd (2007) 69 NSWLR 120 ..................... 25.920, 25.930 Caltex Australia Petroleum Pty Ltd v Troost [2015] NSWCA 64 .............................. 20.30, 20.180 Caltex Oil (Aust) Pty Ltd v The Dredge “Willemstad” (1976) 136 CLR 529 ............... 28.340 Calverley v Green (1984) 155 CLR 242 .............. 29.180 Cameron v Brisbane Fleet Sales Pty Ltd [2002] 1 Qd R 463 ........................................ 22.630 Cameron v Murdoch (1986) 60 ALJR 280 ............ 26.10 Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 ........................... 8.270 Campomar Sociedad, Limitada v Nike International Ltd (2000) 202 CLR 45 .............. 17.60 Canny Gabriel Castle Jackson Advertising Pty Ltd v Volume Sales (Finance) Pty Ltd (1974) 131 CLR 321 ................ 26.30, 26.40, 26.110 Cantarella Bros Pty Ltd v Modena Trading Pty Ltd (2014) 254 CLR 337 ....................... 30.2245 Canterbury Bankstown Rugby League Football Club v Rogers [1993] Aust Torts Reports 81-246 .............................................. 28.630 Canty v PaperlinX Australia Pty Ltd (2014) 9 BFRA 524; [2014] NSWCA 309 ............. 9.20, 20.30 Caparo Industries Plc v Dickman [1990] 2 AC 605 ................................................................ 28.330 Capital Finance Australia Ltd v Airstar Aviation Pty Ltd [2004] 1 Qd R 122 .............. 20.130 Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8 ............. 1.910 Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 .............................................. 3.80, 3.180, 3.260 Carlton and United Breweries Ltd v Wilson [1933] VLR 113 ............................................. 20.230 Carminco Gold & Resources Ltd v Findlay & Co Stokbrokers (Underwriters) Pty Ltd (2007) 243 ALR 472 ...................................... 13.540 Carney v Herbert [1985] AC 301 .......................... 8.620 Cary v Rural Bank of New South Wales (1967) 2 DCR (NSW) 49 .................. 24.760, 24.950 Case of Mines (1568) 1 Plow 310; 75 ER 472 .... 22.330

xvii

xviii

Australian Commercial Law

Cassegrain v Gerard Cassegrain & Co (2015) 254 CLR 425 ................................................. 22.460 Cassegrain v Gerard Cassegrain & Co Pty Ltd (2015) 254 CLR 425 ...................................... 22.490 Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd (2011) 192 FCR 445 ........ 15.157, 15.420 Castel Electronics Pty Ltd v Toshiba Singapore Pte Ltd [2011] HCASL 208 ........... 15.157, 15.420 Castle Constructions Pty Ltd v Fekala Pty Ltd (2006) 65 NSWLR 648 .................................. 12.180 Castlemaine Tooheys Ltd v Williams and Hodgson Transport Pty Ltd (1986) 162 CLR 395 ........................................................ 18.350 Catlow v Accident Compensation Commission (1989) 167 CLR 543 ................... 1.370 Catnic Components Ltd v Hill & Smith Ltd [1982] RPC 183 ........................................... 30.2110 Cattanach v Melchior (2003) 215 CLR 1 .............. 28.80 Causer v Browne [1952] VLR 1 ............................ 9.410 Cedar Hill Flowers & Foliage Pty Ltd v Spierenburg [2003] 1 Qd R 482 ....................... 8.480 Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd (2014) 45 VR 79 ................................ 11.250 Cedar Petrochemicals Inc v Dongbu Hannong Chemical Co Ltd 2011 WL 4494602 (SD NY 2011) ............................... 15.60, 15.140, 15.157 Century Insurance Co Ltd v Northern Ireland Road Transport Board [1942] AC 509 ........... 28.830 Ceramica Nuova D’Agostino SpA v MCC-Marble Ceramic Center Inc 526 US 1087 (1999) ................................................... 15.110 Chairperson, National Crime Authority v Flack (1998) 86 FCR 16 ................................ 22.170 Chan v Zacharia (1984) 154 CLR 178 .............. 26.240, 26.250 Chappel v Hart (1998) 185 CLR 232 ................. 28.500 Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 ................................................................ 5.70 Chateau des Charmes Wines Ltd v Sabate USA Inc 328 F 3d 528 (9th Cir 2003) ............ 15.130 Cheattle v R (1993) 177 CLR 541 ...................... 32.320 Chiarabaglio v Westpac Banking Corp [1989] ATPR 40-971; [1991] ATPR (Digest) 46-067 ........................................................... 28.320 Chicago Prime Packers Inc v Northam Food Trading Co 320 F Supp 2d 702 (ND Ill 2004) ................................... 15.160, 15.400, 15.430 Chief Executive Officer of Customs v Biocontrol Ltd (2006) 150 FCR 64 .................. 1.420 Childrens Television Workshop Inc v Woolworths (NSW) Ltd [1981] 1 NSWLR 273 .............................................................. 30.2610 Chin v Miller (1981) 37 ALR 171 ......................... 5.250 Chin Keow v Government of Malaysia [1967] 1 WLR 813 .................................................... 28.470 China North Chemical Industries Corp v Beston Chemical Corp 2006 WL 295395 (SD Tex 2006) ................................................ 15.140 Chiou Yaou Fa v Morris (1987) 46 NTR 1 ......... 32.390

Chitts v Allaine [1982] Qd R 319 ........................... 8.40 Chomentowski v Red Garter Restaurant Ltd (1970) 92 WN (NSW) 1070 ........................... 28.120 Christie Owen & Davies Ltd v Rapacioli [1974] QB 781 ............................................... 13.430 Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101 ............................ 1.540 Clarendon Homes (Aust) Pty Ltd v Henley Arch Pty Ltd (1999) 46 IPR 309 .................... 30.180 Clark v Macourt (2013) 253 CLR 1 ....... 12.111, 12.181 Clark v Raymor (Brisbane) Pty Ltd (No 2) [1982] Qd R 790 ........................................... 22.500 Clark Equipment Australia Ltd v Covcat Pty Ltd (1987) 71 ALR 367 ................................. 17.170 Clarkson, Booker Ltd v Andjel [1964] 2 QB 775 ................................................................ 13.560 Claude R Ogden & Co Pty Ltd v Reliance Fire Sprinkler Co Pty Ltd [1973] 2 NSWLR 7 ...................................................... 25.980 Clay v Clay (2001) 202 CLR 410 ....................... 29.280 Clayton v Mutual Community General Insurance Pty Ltd (1995) 64 SASR 353 .......... 25.540 Clough v London and North Western Railway Co (1871) LR 7 Exch 26 .................... 7.630 Clough v Rosevear (1997) 69 SASR 67 ............... 32.390 Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526 ........... 7.470 Clubb, Re; Ex parte Clubb v Westpac Banking Corp (1990) 93 ALR 123 ................. 31.250 Clutton v Attenborough [1897] AC 90 ................ 24.140 Clyne v Deputy Commissioner of Taxation (1984) 154 CLR 589 ......................... 31.260, 31.650 Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 .................................... 9.80 Coastal Estates Pty Ltd v Melevende [1965] VR 433 ............................................................ 7.630 Coca-Cola Trade Marks [1986] 1 WLR 695 ..... 30.2190 Coca Cola Amatil (New South Wales) Pty Ltd v Pareezer [2006] Aust Torts Reports 81-834; [2006] NSWCA 45 ........................... 28.120 Coco v AN Clark (Engineers) Ltd [1969] RPC 41 ................................................................ 30.2720 Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 ....................... 9.30, 9.280, 11.420, 11.430 Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 .................................................................. 1.420 Coggs v Bernard (1703) 2 Ld Raym 909; 92 ER 107 ............................................................. 21.50 Coghlan v Pyoanee Pty Ltd [2003] 2 Qd R 636 ................................................................... 11.50 Coghlan v SH Lock (Aust) Ltd (1987) 8 NSWLR 88 ...................................................... 20.40 Cole v South Tweed Heads Rugby League Football Club Ltd (2004) 217 CLR 469 ......... 28.160 Cole v Turner (1704) 6 Mod 149; 87 ER 907 ..... 28.630 Cole v Whitfield (1988) 165 CLR 360 .................. 1.160 Colley v Overseas Exporters [1921] 3 KB 302 .... 14.960 Collins v Godefroy (1831) 1 B & Ad 950; 109 ER 1040 .................................................... 5.110

Table of Cases

Collins Marrickville Pty Ltd v Henjo Investments Pty Ltd (1987) 72 ALR 601 ........ 17.130 Comcare v PVYW (2013) 250 CLR 246 ............. 34.410 Comcare v Thompson (2000) 100 FCR 375 ......... 1.360 Commerce Consolidated Pty Ltd v Johnstone [1976] VR 724 ................................................. 7.420 Commercial Bank of Australia v Cavanaugh (1980) 7 NTR 12 ........................................... 20.240 Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 ...... 7.880, 7.890, 7.900, 7.930, 7.950, 20.70 Commercial Banking Co of Sydney Ltd v RH Brown & Co (1972) 126 CLR 337 ................ 28.590 Commercial and General Acceptance Ltd v Nixon (1981) 152 CLR 491 ........................... 22.630 Commissioner of Patents v RPL Central Pty Ltd v (2015) 238 FCR 27 ............................. 30.1850 Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 ............................. 12.90, 12.100 Commonwealth v Director, Fair Work Building Industry Inspectorate (2015) 90 ALJR 113 ....................................................... 18.560 Commonwealth v John Fairfax & Sons Ltd (1980) 147 CLR 39 ......................... 30.630, 30.2730 Commonwealth v Tasmania (1983) 158 CLR 1 ...................................................................... 1.140 Commonwealth v Verwayen (1990) 170 CLR 394 .................................................................. 5.280 Commonwealth v Yarmirr (2001) 208 CLR 1 ..... 22.960 Commonwealth Bank of Australia v Baltica General Insurance Co Ltd (1992) 29 NSWLR 579 .................................................. 25.740 Commonwealth Bank of Australia v Barker (2014) 253 CLR 169 ...................................... 34.250 Commonwealth Bank of Australia v Barker [2014] HCA 32 .............................................. 34.255 Commonwealth Bank of Australia v Carotino (2011) 111 SASR 573 ....................................... 3.260 Commonwealth Bank of Australia v Finding [2001] 1 Qd R 168 .......................................... 24.40 Commonwealth Bank of Australia v Muirhead [1997] 1 Qd R 567 ........... 23.400, 23.410 Commonwealth Bank of Australia v Smith (1991) 42 FCR 390 .......................................... 24.40 Commonwealth Bank of Australia v Wood [2016] VSC 264 ............................................. 24.980 Commonwealth Trading Bank of Australia v Sydney Wide Stores Pty Ltd (1981) 148 CLR 304 ................... 24.40, 24.680, 24.690, 24.700 Communications, Electrical, Electronic, Energy, Information, Postal, Plumbing and Allied Services Union of Australia v Australian Competition and Consumer Commission (2007) 162 FCR 466 ................. 18.530 Compton v Ramsay Health Care Australia Pty Ltd [2016] FCAFC 106 .................................. 31.260 Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 .......... 1.530, 9.280, 9.300, 25.1060

ConAgra Inc v McCain Foods (Aust) Pty Ltd (1992) 33 FCR 302 ...................................... 30.2590 Concrete Constructions (NSW) Pty Ltd v Nelson (1990) 169 CLR 594 ............................ 17.50 Concrete Pty Ltd v Parramatta Design & Developments Pty Ltd (2006) 229 CLR 577 .............................................................. 30.1070 Constantine v Imperial London Hotels Ltd [1944] KB 693 ............................................... 21.550 Construction Engineering (Aust) Pty Ltd v Hexyl Pty Ltd (1985) 155 CLR 541 ............... 26.350 Consul Development Pty Ltd v DPC Estates Pty Ltd (1975) 132 CLR 373 ......................... 29.210 Continental C & G Rubber Co Ltd, Re (1919) 27 CLR 194 ........................................ 11.480 Conway v Critchley [2012] NSWSC 1405 ............ 4.140 Cook v Cook (1986) 162 CLR 376 ....... 28.470, 28.480 Cook v Permanent Mortgages Pty Ltd [2007] ASC 155-085; [2007] NSWCA 219 ................ 19.630 Cook v Rodgers (1946) 46 SR (NSW) 229 ......... 13.790 Cooper v Universal Music Australia Pty Ltd (2006) 156 FCR 380 ...................................... 16.590 Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 ............................................... 1.390, 1.400 Cope Allman (Marrickville) Ltd v Farrow (1984) 3 IPR 567 ........................................... 30.300 Coppin v Western Australia (1999) 92 FCR 465 .............................................................. 22.1230 Corbett v Pallas [1995] Aust Torts Reports 81-329 ........................................................... 28.770 Cork v Kirby McLean [1952] 2 All ER 402 ........ 28.500 Cortem SpA v Controlmatic Pty Ltd [2010] FCA 852 ........................................................ 15.157 Cosmopolitan Hotel (Vic) v Crown Melbourne Ltd (2014) 45 VR 771 ..................... 9.20 Cottee v Franklins Self-Serve Pty Ltd [1997] 1 Qd R 469 ....................................................... 21.280 Coughlin v Gillison [1899] 1 QB 145 ................. 21.240 Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460 ........................................ 10.20 Coulson, Ex parte; Re Jones (1947) 48 SR (NSW) 178 ..................................................... 21.550 Coulthart v Clementson (1879) 5 QBD 42 .......... 20.240 Council of the City of Sydney v West (1965) 114 CLR 481 .................. 9.480, 9.490, 9.520, 21.40 Coutts & Co v Browne-Lecky [1947] KB 104 ..... 20.100 Coventry v Charter Pacific Corporation (2005) 227 CLR 234 ...................................... 31.360 Cowell v Rosehill Racecourse Co Ltd (1937) 56 CLR 607 ................................................... 28.680 Cowen v Piggott [1989] 1 Qd R 41 ...................... 7.800 Cowern v Nield [1912] 2 KB 419 ........................... 6.90 Cowper v JG Goldner Pty Ltd (1986) 40 SASR 457 .......................................... 21.420, 21.490 Cox v Coulson [1916] 2 KB 177 ......................... 26.100 Cox v Mosman [1909] QSR 45 .......................... 13.140 Crabtree-Vickers Pty Ltd v Australian Direct Mail Advertising & Addressing Co Pty Ltd (1975) 133 CLR 72 ........................... 13.130, 13.260 Crace, Re; Balfour v Crace [1902] 1 Ch 733 ....... 20.240

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Crawford v Parish (1991) 105 FLR 361 ............... 7.670 Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 ........... 11.40 Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 ............... 7.770 Crimmins v Stevedoring Industry Finance Committee (1999) 200 CLR 1 ........................ 28.170 Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 .......... 5.285, 9.20, 9.175 Croydon Gas Co v Dickinson (1876) 2 CPD 46 .................................................................. 20.200 Cruttwell v Lye (1810) 17 Ves Jr 335; 34 ER 129 ................................................................ 26.320 Cullen v Trappell (1980) 146 CLR 1 .................... 1.180 Cully v Parsons [1923] 2 Ch 123 ...................... 27.1150 Cummings v Sir William Arrol & Co Ltd [1962] 1 WLR 295 ......................................... 28.500 Cundy v Lindsay (1878) 3 App Cas 459 .............. 7.210, 7.290, 7.360 Curtis v Chemical Cleaning & Dyeing Co Ltd [1951] 1 KB 805 .............................................. 9.440 Curtis v Singtel Optus Pty Ltd (2014) 225 FCR 458 ........................................................ 31.230 Cut Price Deli Pty Ltd v Jacques (1994) 49 FCR 397 ...................................................... 30.2800

D DC Comics v Cheqout Pty Ltd (2013) 212 FCR 194 ...................................................... 30.2345 DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 ............................... 11.260 DaimlerChrysler Services Australia Pty Ltd v Berckelman [2004] ASC 155-065; [2004] NSWSC 447 ................................................... 19.200 Dale v Moses [2007] FCAFC 82 ......................... 22.980 Dallas Buyers Club LLC v iiNet Ltd (No 3) [2015] FCA 422 ............................................. 16.610 Dallas Buyers Club LLC v iiNet Ltd (No 4) [2015] FCA 838 ............................................. 16.610 Dallas Buyers Club LLC v iiNet Ltd (No 5) [2015] FCA 1437 ........................................... 16.610 Daly v Thiering (2013) 249 CLR 381 ................... 1.420 Damorgold Pty Ltd v JAI Products Pty Ltd (2015) 229 FCR 68 ...................................... 30.1890 Daniel v Accident Insurance Mutual Holdings (1996) 65 SASR 387 ...................................... 25.550 Daniel v Hotel Pacific Pty Ltd [1953] VLR 447 ................................................... 21.550, 21.560 Daniel v Western Australia (2004) 212 ALR 51 ................................................................ 22.1010 Daniel v Western Australia [2005] FCA 536 ....... 22.980 Daniels v Anderson (1995) 37 NSWLR 438 ....... 27.720 Dargusch v Sherley Investments Pty Ltd [1970] Qd R 338 ........................................... 13.330 Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 ...................... 9.520, 9.530 Dart Industries Inc v Decor Corp Pty Ltd (1993) 179 CLR 101 .................................... 30.2120

Data Access Corpn v Powerflex Services Pty Ltd (1999) 202 CLR 1 ................................... 30.150 David Jones Ltd v Willis (1934) 52 CLR 110 ...... 14.280 David Securities Pty Ltd v Commonwealth Bank of Australia (1990) 23 FCR 1 ................ 28.320 David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 .......... 7.390, 7.400, 12.510 Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 ..................................................... 9.470 Davis Contractors Ltd v Fareham UDC [1956] AC 696 ............................................... 11.310 Dawson v R (1961) 106 CLR 1 ............................ 32.90 Dawson v World Travel Headquarters Pty Ltd [1981] ATPR 40-240 ...................................... 17.510 Dawson (decd), Re [1966] 2 NSWR 211 ............ 29.650 Day v Bank of New South Wales (1978) 18 SASR 163 ....................................................... 24.720 Day v O’Leary (1992) 57 SASR 206 ................... 12.140 Day & Dent Constructions Pty Ltd v North Australian Properties Pty Ltd (1982) 150 CLR 85 .......................................................... 31.370 Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 .................................................................. 8.620 Dayeian v Davidson (2010) 76 NSWLR 512 .......... 9.20 De Francesco v Barnum (1890) 45 Ch D 430 ......... 6.80 De Garis v Neville Jeffress Pidler Pty Ltd (1990) 37 FCR 99 ............................. 30.280, 30.640 De Rose v South Australia (2003) 133 FCR 325 ................................................................ 22.980 De Rose v South Australia [2013] FCA 988 ...... 22.1290 De Rose v South Australia (No 2) (2005) 145 FCR 290 ......................................... 22.980, 22.1010 Dean v Phung (2012) Aust Torts Reports 82-111; [2012] NSWCA 223 .......................... 28.630 Dearle v Hall (1828) 3 Russ 1; 38 ER 475 .......... 10.190 Deatons Pty Ltd v Flew (1949) 79 CLR 370 ...... 13.650, 28.840 Debenham v Mellon (1880) 5 QBD 394 ............. 13.190 Delchi Carrier SpA v Rotorex Corp 1994 US Dist LEXIS 12820 (SD NY 1994) .................. 15.380 Delchi Carrier SpA v Rotorex Corp 71 F 3d 1024 (2d Cir 1995) ........................... 15.380, 15.400 Dennison Manufacturing Co v Monarch Marketing Systems Inc (1983) 66 ALR 265 .... 30.1890 Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633 ........................... 9.290, 21.270 Derham v Amev Life Assurance Co Ltd (1981) 56 FLR 34 .......................................... 13.130 Derry v Peek (1889) 14 App Cas 337 ....... 7.490, 28.580 Desktop Marketing Systems Pty Ltd v Telstra Corporation Ltd (2002) 119 FCR 491 .......... 30.110, 30.120, 30.130 Deta Nominees Pty Ltd v Viscount Plastic Products Pty Ltd [1979] VR 167 ......... 14.60, 14.207 Devefi Pty Ltd v Mateffy Perl Nagy Pty Ltd (1993) 37 IPR 477 ........................ 30.1070, 30.1080 Di Cioccio v Official Trustee in Bankruptcy (2015) 229 FCR 1 .......................................... 31.560 Diamond Leisure Pty Ltd v Newham (1993) 4 NTLR 1 ......................................................... 24.300

Table of Cases

Dickson v The Queen (2010) 241 CLR 491 ........ 32.170 Dietrich v R (1992) 177 CLR 292 ...................... 32.327 Digga Australia Pty Ltd v Norm Engineering Pty Ltd (2008) 166 FCR 268 ....................... 30.1770 Director of Consumer Affairs v Nightingale Electrics Pty Ltd [2016] FCA 279 ................. 17.1310 Director of Public Prosecutions v Le (2007) 15 VR 352 ....................................................... 1.370 Director of Public Prosecutions v Walters [2015] VSCA 303 ....................... 1.315, 1.360, 1.370 Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 .......................................... 8.340 Dollar Sweets Pty Ltd v Federated Confectioners Association of Australia [1986] VR 383 .................................. 34.440, 34.450 Doney v R (1990) 171 CLR 207 ......................... 32.320 Donoghue v Allied Newspapers Ltd [1938] 1 Ch 106 ................................. 30.210, 30.220, 30.240 Donoghue v Stevenson [1932] AC 562 ..... 28.50, 28.60, 28.90, 28.260 Dougan v Ley (1946) 71 CLR 142 .................... 14.1100 Dow Jones & Co Inc v Gutnick (2002) 210 CLR 575 ........................................................ 16.440 Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2000] QSC 421 ........................... 15.190 Downs Investments Pty Ltd v Perwaja Steel SDN BHD [2002] 2 Qd R 462 ......... 15.190, 15.240, 15.300, 15.380, 15.390, 15.410 Ducret v Colourshot Pty Ltd (1981) 35 ALR 503 ................................................................ 17.440 Duff v Blinco (No 2) [2007] 1 Qd R 407 .............. 5.330 Duke Group Ltd v Pilmer (1999) 73 SASR 64 .... 26.430 Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 ........ 12.300, 12.310 Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 ....................................... 5.30 Dunning v BHP Billiton Ltd [2014] NSWDDT 3 ................................................... 34.417 Dupas v R (2012) 40 VR 182 ............................... 1.540 Dura-Post (Australia) Pty Ltd v Delnorth Pty Ltd (2009) 177 FCR 239 ............................. 30.2080 D’Arcy v Myriad Genetics Inc [2014] FCAFC 115 ............................................................... 30.1840 D’Orta Ekenaike v Victoria Legal Aid (2005) 223 CLR 1 ..................................................... 28.380 D’Orta Ekenaike v Victoria Legal Aid (2015) 223 CLR 1 ..................................................... 28.380

E E v Australian Red Cross Society (1992) 31 FCR 299 ...................................................... 17.1060 EBay International AG v Creative Festival Entertainment Pty Ltd (2006) 170 FCR 450 ........................................ 16.177, 16.200, 17.70 ECEM European Chemical Marketing BV v Purolite Co 2010 WL 419444 (ED Pa 2010) ............................................................. 15.110

ECEM European Chemical Marketing BV v Purolite Co 451 Fed Appx 73 (3rd Cir 2011) .............................................................. 15.110 EJ Gallo Winery v Lion Nathan Australia Pty Ltd (2010) 241 CLR 144 .............. 30.2180, 30.2370 EMI Songs Australia Pty Ltd v Larrikin Music Publishing Pty Ltd (2011) 191 FCR 444 ........ 30.320 Eagle Star Insurance Co Ltd v National Westminster Finance Australia Ltd (1985) 58 ALR 165 ...................................... 25.980, 25.990 Easom Automation Systems Inc v Thyssenkrupp Fabco Corp 2007 WL 2875256 (ED Mich 2007) ................................ 15.50 Easom Automation Systems Inc v Thyssenkrupp Fabco Corp 2008 WL 1901236 (ED Mich 2008) ................................ 15.50 East End Real Estate Pty Ltd t/as City Living v CE Heath Casualty & General Insurance Ltd (1991) 25 NSWLR 400 .............. 25.630, 25.640 Eclipse Motors Pty Ltd v Nixon [1940] VLR 49 .................................................................. 14.970 Edsonic Pty Ltd v Cassidy (2010) 189 FCR 271 ................................................................ 30.260 Egan v State Transport Authority (1982) 31 SASR 481 ....................................................... 28.710 Egbert v National Crown Bank [1918] AC 903 ................................................................ 20.180 Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51 ...................................................... 9.420 Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631 ......... 9.460, 14.250, 14.1140 Elders Lensworth Finance Ltd v Australian Central Pacific Ltd [1986] 2 Qd R 364 ............ 7.470 Elder’s Trustee & Executor Co Ltd v Higgins (1963) 113 CLR 426 ...................................... 29.420 Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640 ........................ 9.20 Electrocraft Arkansas Inc v Super Electric Motors Ltd 2009 WL 5181854 (ED Ark 2009) ............................................................... 15.20 Electrocraft Arkansas Inc v Super Electric Motors Ltd 2010 WL 3307461 (ED Ark 2010) ............................................................... 15.20 Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235 .................................. 3.310 Elliott v Bax-Ironside [1925] 2 KB 301 ............... 23.320 Elwes v Brigg Gas Co (1886) 33 Ch D 562 ......... 22.100 Emerson v Custom Credit Corp Ltd [1994] 1 Qd R 516 ....................................................... 22.630 Emerson v Wreckair Pty Ltd (1992) 33 FCR 581 ................................................................ 31.250 Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 .......... 3.260 Emu Brewery Mezzanine Ltd (in liq) v Australian Securities and Investments Commission (2006) 32 WAR 204 ................ 23.1060 Energy Brix Australia Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd (2002) 5 VR 353 .................................. 5.180 Ennis, Re [1893] 3 Ch 238 ................................. 20.170

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Epitoma Pty Ltd v Australasian Meat Industry Employees’ Union (No 2) (1984) 3 FCR 55 .................................................................. 17.720 Equity Trustees Executors & Agency Co Ltd v New Zealand Loan & Mercantile Agency Co Ltd [1940] VLR 201 ................................. 20.160 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 ............................. 9.20 Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 ................................................................ 12.555 Erect Safe Scaffolding (Australia) Pty Ltd v Sutton (2008) 72 NSWLR 1 ............................. 20.30 Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 ........ 4.10, 4.70, 4.130 Ertel Bieber & Co v Rio Tinto Co Ltd [1918] AC 260 .......................................................... 11.330 Erven Warnink v J Townend & Sons (Hull) Ltd [1979] AC 731 ....................................... 30.2560 Esanda Finance Corporation Ltd v Peat Marwick Hungerfords (Reg) (1997) 188 CLR 241 ........................................................ 28.330 Esanda Ltd v Powell and Dorsett (1986) 4 SR (WA) 22 ......................................................... 20.200 Esso Australia Resource Ltd v Plowman (1985) 183 CLR 10 .......................................... 1.850 Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 ........................ 8.510 Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237 ............. 4.70 Expo Aluminium (NSW) Pty Ltd v WR Pateman Pty Ltd [1990] ASC 55-978 ............. 14.340 Expo International Pty Ltd v Chant [1979] 2 NSWLR 820 .................................................. 22.630 EzyDVD Pty Ltd v Lahrs Investments Qld Pty Ltd [2010] 2 Qd R 517 ......................... 8.400, 8.483

F FAI General Insurance Company Limited v Australian Hospital Care Pty Ltd (2001) 204 CLR 641 ................................................. 25.650 FGM Pilbara Pty Ltd v Cox (2009) 175 FCR 141 .............................................................. 22.1230 FWO v Bound for Glory Enterprises Pty Ltd [2014] FCCA 432 .......................................... 34.105 Fabre v Arenales (1992) 27 NSWLR 437 ............ 28.470 Facton Ltd v Erdogan (No 1) (2012) 99 IPR 46 ................................................................ 30.1210 Facton Ltd v Toast Sales Group Pty Ltd (2012) 205 FCR 378 .................................... 30.1160 Fairfax Media Publications Pty Ltd v Reed International Books Australia Pty Ltd (2010) 189 FCR 109 ........................................ 30.90 Fairfield Sentry Ltd (in Liq) v Migani [2014] UKPC 9 ............................................................ 33.20 Falgat Constructions Pty Ltd v Equity Australia Corporation Pty Ltd [2006] NSWCA 259 .................................................. 16.130 Falko v James McEwan & Co Ltd [1977] VR 447 ................................................................ 12.220

Fallas v Mourlas (2006) 65 NSWLR 418 ............ 28.170 Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354 ....................... 9.240 Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 ........... 1.540, 1.550, 22.490 Farmers’ Co-operative Executors & Trustees Ltd v Perks (1989) 52 SASR 399 ...................... 7.810 Fearnley v Finlay [2014] 2 Qd R 392 ....... 1.250, 22.280 Fejo v Northern Territory (1998) 195 CLR 96 ............... Felthouse v Bindley (1862) 11 CB (NS) 869; 142 ER 1037 .................................................... 3.250 Fermiscan v James (2009) 261 ALR 408 ............. 12.290 Ferrcom Pty Ltd v Commercial Union Assurance Co of Australia Pty Ltd (1993) 176 CLR 332 ................................................. 25.590 Fibrosa Spolka Akcyjna v Fairbairn, Lawson, Combe, Barbour, Ltd [1943] AC 32 .............. 11.480, 11.485 Filanto SpA v Chilewich International Corp 789 F Supp 1229 (SD NY 1992) ...................... 15.90 Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd (2011) 34 VR 257 ......... 12.333 Fire and All Risks Insurance Co Ltd v Powell [1966] VR 513 ............................................... 25.530 Firewatch Australia Pty Ltd v County Fire Authority (1999) 93 FCR 520 .......................... 17.50 First National Securities Ltd v Jones [1978] Ch 109 ............................................................. 5.180 Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 .......................................................... 8.150 Fleming Bros (Monaro Agencies) Pty Ltd v Smith [1983] ATPR 40-389 .............................. 8.610 Fletcher v Nextra Australia Pty Ltd (2015) 229 FCR 153 ................................................... 17.50 Fletcher Organisation Pty Ltd v Crocus Investments Pty Ltd [1988] 2 Qd R 517 ......... 20.200 Flight Centre Ltd v Australian Competition and Consumer Commission (2015) 234 FCR 367 ........................................................ 18.481 Flowfill Packaging Machines Pty Ltd v Fytore Pty Ltd [1993] Aust Torts Reports 81-244 ..... 28.710 Foakes v Beer (1884) 9 App Cas 605 ......... 5.120, 11.80 Foots v Southern Cross Mine Management Pty Ltd (2007) 234 CLR 52 ........................... 31.360 Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 ........................... 7.340, 7.350, 7.990 Ford Credit Australia Ltd v Auto Trade Auction Pty Ltd [1982] VR 795 ..................... 14.740 Forestal Guarani SA v Daros International Inc 613 F 3d 395 (3rd Cir 2010) .......................... 15.120 Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486 ....................................................... 9.20, 27.740 Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2005] QSC 4 ..................................... 28.340 Fortuna Seafoods Pty Ltd v The Ship “Eternal Wind” [2008] 1 Qd R 429 ............................. 28.340 Foss v Harbottle (1843) 2 Hare 461; 67 ER 189 ................................................................ 27.390

Table of Cases

Foster v Mountford and Rigby Ltd (1977) 14 ALR 71 ........................................................ 30.2700 Foti v Banque Nationale de Paris [1990] Aust Torts Reports 81-025 ..................................... 28.320 Fouldes v Willoughby (1841) 8 M & W 540; 151 ER 1153 .................................................. 28.710 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 ............... 5.180 Francis v Eggleston Mitchell Lawyers Pty Ltd (2014) 12 ABC (NS) 25; [2014] FCAFC 18 .... 31.520 Francis Day & Hunter Ltd v Bron [1963] Ch 587 ................................................................ 30.320 Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 ..... 7.410, 7.430, 7.470, 9.20 Fraser v Thames Television [1984] 1 QB 44 ...... 30.2710 Frazer v Walker [1967] 1 AC 569 ....................... 22.490 Freeman & Lockyer v Buckhurst Park Properties (Mangal) Ltd [1964] 2 QB 480 ..... 13.130, 13.210, 13.240, 13.250 Frost v Sheehan (2012) 11 ABC (NS) 1; [2012] FCAFC 46 .......................................... 31.500 Frost v Warner (2002) 209 CLR 509 .................. 28.830 Fry v Oddy [1999] 1 VR 557 .............................. 26.580 Fry Consulting Pty Ltd v Sports Warehouse Inc (No 2) (2012) 201 FCR 565 ................... 30.2345 Fryer Holdings v Liaoning MEC Group [2012] NSWSC 18 ......................................... 15.157 Fullwood v Hurley [1928] 1 KB 498 ................... 13.340 Futuretronics International Pty Ltd v Gadzhis [1990] ASC 56-009 ...................................... 14.1110

G GE Capital Finance Australia v Various Debtors [2000] ASC 155-036 ......................... 19.380 GMA Garnet Pty Ltd v Barton International Inc (2010) 183 FCR 269 .................................... 9.30 Gaffney v Ryan [1995] 1 Qd R 19 .......................... 8.90 Gala v Preston (1991) 172 CLR 243 ................... 28.470 Galaxy Electronics Pty Ltd v Sega Enterprises Ltd (1997) 75 FCR 8 ..................................... 30.840 Galbraith & Grant Ltd v Block [1922] 2 KB 155 ................................................................ 14.770 Gambriell v Caparelli (1974) 7 OR (2d) 205 ...... 28.640 Gamer’s Motor Centre (Newcastle) Pty Ltd v Natwest Wholesale Australia Pty Ltd (1987) 163 CLR 236 ...................................... 14.720 Gammasonics Institute for Medical Research Pty Ltd v Comrad Medical Systems Pty Ltd (2010) 77 NSWLR 479 .................................... 14.30 Garcia v National Australia Bank Ltd (1998) 194 CLR 395 ..... 1.540, 7.930, 7.940, 7.950, 20.150 Gates v City Mutual Life Assurance Society Ltd (1986) 160 CLR 1 .................... 17.790, 25.1020 Gattellaro v Westpac Banking Corporation (2004) 204 ALR 258 ...................................... 20.180 Gazzard v Hutchesson [1995] Aust Torts Reports 81-337 .............................................. 28.680 Geipel v Smith (1872) LR 7 QB 404 ................... 11.150

General Motors Acceptance Corporation Australia v RACQ Insurance Ltd (2003) 12 ANZ Insurance Cases 61-574; [2003] QSC 80 ............................................. 25.750, 25.755 Geneva Pharmaceuticals Technology Corp v Barr Laboratories Inc 201 F Supp 2d 236 (SD NY 2002) ....................................... 15.40, 15.80 Geo Thompson (Aust) Pty Ltd v Vittadello [1978] VR 199 ............................................... 23.390 George Trollope & Sons v Martyn Bros [1934] 2 KB 436 ............................................ 13.730 Geraghty v Minter (1979) 142 CLR 177 ............. 8.400, 8.429 Gerlach v Pearson [1950] VLR 321 .................... 13.430 Gett v Tabet (2009) 254 ALR 504 ........................ 1.540 Giannarelli v Wraith (1988) 165 CLR 543 .......... 28.380 Gibbons v Pozzan (2007) 209 FLR 233 .............. 20.180 Gibbons v Wright (1954) 91 CLR 423 .................. 6.180 Gibbs Holdings Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [2002] 1 Qd R 17 .................................................................. 25.590 Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122 ........................... 3.270 Giles v Thompson [1994] 1 AC 142 ...................... 8.270 Giliberto v Kenny (1983) 48 ALR 620 .................... 9.40 Gillette Australia Pty Ltd v Energizer Australia Pty Ltd (2002) 193 ALR 629 .......... 17.770 Gilmore v AMP General Insurance Co Ltd (1996) 67 SASR 387 ......................... 25.810, 25.820 Ginza Pte Ltd v Vista Corporation Pty Ltd [2003] WASC 11 ............................................ 15.157 Gipps v Gipps [1978] 1 NSWLR 454 ................... 7.540 Gippsreal Ltd v Registrar of Titles (2007) 20 VR 157 .............................................................. 2.90 Giumelli v Giumelli (1999) 196 CLR 101 ............ 5.280, 29.210 Giumelli v Johnston [1991] Aust Torts Reports 81-085 .............................................. 28.630 Given v Pryor (1979) 24 ALR 442; (1980) 30 ALR 189 ........................................................ 17.410 Gleebs Pty Ltd, Re [1933] VLR 293 .................... 22.290 Glyncorrwg Colliery Co, Re; Re Railway Debenture and General Trust Co v Glyncorrwg Colliery Co [1926] 1 Ch 951 .... 27.1100 Gnych v Polish Club Ltd (2015) 255 CLR 414 ............................................ 8.70, 8.105, 22.740 Godecke v Kirwan (1973) 129 CLR 629 .............. 3.260 Gokora Pty Ltd v Montgomery Jordan and Stevenson Pty Ltd [1986] ATPR 40-722 ....... 25.1020 Goldberg, Re [1921] 1 KB 606 ......................... 27.1150 Golden Editions Pty Ltd v Polygram Pty Ltd (1996) 61 FCR 479 ....................... 30.1150, 30.1230 Golden Mile Property Investments Pty Ltd (in liq) v Cudgegong Australia Pty Ltd (2015) 89 NSWLR 237 ............................................. 22.680 Goldsbrough, Mort & Co Ltd v Quinn (1910) 10 CLR 674 .......................................... 3.110 Gollin & Co Ltd v Consolidated Fertilizer Sales Pty Ltd [1982] Qd R 435 ......................... 5.250 Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 ............................ 10.140, 10.160, 17.1430

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Australian Commercial Law

Goodwin v National Bank of Australasia Ltd (1968) 117 CLR 173 ........................................ 20.70 Goodwin v Ron Heath Tyre Service (SA) Pty Ltd (1999) 74 SASR 508 ................................ 21.380 Google Inc v Australian Competition and Consumer Commission (2013) 249 CLR 435 .................................................................. 17.56 Gordon v Tamworth Jockey Club [2003] Aust Torts Reports 81-698; [2003] NSWCA 82 ..... 28.120 Gore v Octahim Wise Ltd [1995] 2 Qd R 242 .... 23.1060 Gould v SE & C Rly Co [1920] 2 KB 186 .......... 21.440 Gould v Vaggelas (1984) 157 CLR 215 .... 7.560, 28.600 Grace Label Inc v Kliff 355 F Supp 2d 965 (SD Iowa 2005) ................................................ 15.30 Graham v Freer (1980) 35 SASR 424 .................... 7.630 Graham v Voigt (1989) 89 ACTR 11 .................. 21.150 Graham Barclay Oysters Pty Ltd v Ryan (2002) 211 CLR 540 ......................... 28.170, 28.430 Grainger v Gough [1896] AC 325 ........................... 3.40 Grant v Australian Knitting Mills Ltd (1936) 54 CLR 49 ........................................ 14.270, 14.320 Graves Import Co Ltd v Chilewich International Corp 1994 US Dist LEXIS 13393 (SD NY 1994) ..................................... 15.130 Great Lakes Shire Council v Dederer [2006] Aust Torts Reports 81-860 ............................. 28.170 Great Northern Railway Co v Swaffield (1874) LR 9 Exch 132 ................................... 13.170 Greenwood v Council of the Municipality of Waverley (1928) 28 SR (NSW) 219 .................. 21.30 Greenwood v Martins Bank Ltd [1933] AC 51 .................................................................. 24.640 Grepo v Jam-Cal Bundaberg Pty Ltd [2015] QCA 131 ....................................................... 22.690 Griffiths v Minister for Lands, Planning and Environment (2008) 235 CLR 232 .............. 22.1010 Griffiths v Northern Territory (2007) 165 FCR 391 ........................................................ 22.980 Griffiths v Northern Territory (No 3) [2016] FCA 900 ...................................................... 22.1290 Grocon Constructors Pty Ltd v Construction Forestry, Mining and Energy Union (2013) 234 IR 59 ....................................................... 34.455 Grocon Constructors Pty Ltd v Construction Forestry, Mining and Energy Union (CFMEU) (2013) 234 IR 59; [2014] VSC 134 ................................................................ 34.440 Grocon Constructors Pty Ltd v Construction Forestry, Mining and Energy Union (No 2) (2014) 241 IR 288 ......................................... 34.455 Gruppo Essenziero Italiano SpA v Aromi D’Italia Inc 2011 WL 3207555 (D Md 2011) ............................................................... 15.40 Guang Dong Light Headgear Factory Co Ltd v ACI International Inc 521 F Supp 2d 1153 (D Kan 2007) ........................................ 15.110 Gudjala People (No 2) v Native Title Registrar (2008) 171 FCR 317 ....................... 22.990 Gudjala People (No 2) v Native Title Registrar (2009) 182 FCR 63 ......................... 22.990

Gugliotti v Commercial Union Assurance Co of Australia (1992) 7 ANZ Insurance Cases 61-104 ................................................. 25.700 Gumana v Northern Territory of Australia (“Blue Mud Bay”) (2007) 158 FCR 349 ........ 22.980 Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 ......................... 11.280, 22.840 Gye v McIntyre (1991) 171 CLR 609 ................. 31.370

H H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791 ................................... 12.130 H Rowe & Co Pty Ltd v Pitts [1973] 2 NSWLR 159 .................................................. 23.340 HL Bolton (Engineering) Co Ltd v TJ Graham & Sons Ltd [1957] 1 QB 159 ......................... 32.440 HTW Valuers (Central Qld) Pty Ltd v Astonland Pty Ltd (2004) 217 CLR 640 ........ 17.810 Ha v New South Wales (1997) 189 CLR 465 ....... 1.170 Hackshaw v Shaw (1984) 155 CLR 614 ............. 28.610 Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 ............................. 12.120, 14.1050, 14.1090 Hagan v Waterhouse (1991) 34 NSWLR 308 ..... 29.440 Halal Certification Authority Pty Ltd v Scadilone Pty Ltd (2014) 107 IPR 23 ........... 30.2455 Hallifax Property Corp Pty Ltd v GIFC Ltd (1987) 4 BPR 9708 ........................................ 22.630 Halsey v Esso Petroleum Co Ltd [1961] 1 WLR 683 ....................................................... 28.750 Hamerhaven Pty Ltd v Ogge [1996] 2 VR 488 .... 26.400 Hamilton v Bank of New South Wales (1894) 15 LR (NSW) 100 .......................................... 22.280 Hamilton v Lethbridge (1912) 14 CLR 236 ............ 6.60 Hammer and Barrow v Coca-Cola [1962] NZLR 723 ..................................................... 14.810 Hancock v Williams (1942) 42 SR (NSW) 252 .... 20.180 Hannaford v Australian Farmlink Pty Ltd [2008] FCA 1591 ..................... 15.20, 15.60, 15.160 Hannah v Peel [1945] 1 KB 509 ................ 22.60, 22.70 Hanwha Corp v Cedar Petrochemicals Inc 760 F Supp 2d 426 (SD NY 2011) ................... 15.50 Harbour Radio Pty Ltd v Australian Communications and Media Authority (2012) 202 FCR 525 ...................................... 33.120 Hardy & Co v Hillerns and Fowler [1923] 2 KB 490 ........................................................... 14.830 Hardy Wine Co Ltd v Tasman Liquor Traders Pty Ltd (2006) 95 SASR 21 ............... 14.580, 14.590 Harling v Eddy [1951] 2 KB 739 ....................... 14.1110 Harrington-Smith on behalf of the Wongatha People v Western Australia (No 9) (2007) 238 ALR 1 ..................................................... 22.980 Harrison v Melhem (2008) 72 NSWLR 380 ......... 1.370 Harrisons Group Holdings Ltd v Westpac Banking Corp (1989) 51 SASR 36 ................. 24.740 Harriton v Stephens (2006) 226 CLR 52 ............. 28.80, 28.100 Harrods Ltd v Dow Jones & Co Inc [2003] EWHC 1162 .................................................. 16.430

Table of Cases

Hart v O’Connor [1985] AC 1000 ....................... 6.180 Harvey v Harvey (1970) 120 CLR 529 ............... 26.300 Haskins v Commonwealth (2011) 244 CLR 22 .................................................................. 28.650 Hatt v Magro (2007) 34 WAR 256 ..................... 17.850 Havas v Cornish & Co Pty Ltd [1985] 2 Qd R 353 ............................................................. 13.370 Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 ....................... 7.790 Hawkes & Son (London) Ltd v Paramount Film Service Ltd [1934] 1 Ch 593 .................. 30.320 Hawkesley v May [1956] 1 QB 304 .................... 29.460 Hawkins v Clayton (1988) 164 CLR 539 ........... 28.380 Healing (Sales) Pty Ltd v Inglis Electrix Pty Ltd (1968) 121 CLR 584 ............................... 28.710 Health World Ltd v Sin-Shun Australia Pty Ltd (2010) 240 CLR 590 ............................. 30.2360 Health and Aged Care, Minister for v Harrington Associates Ltd (2000) 107 FCR 212 .......................................................... 17.80 Health and Community Services, Department of v JWB and SMB (Marion’s Case) (1992) 175 CLR 218 ................................................. 28.630 Heating Centre Pty Ltd v Trade Practices Commission (1986) 9 FCR 153 ..................... 18.530 Heaton v Richards (1881) 2 LR (NSW) 73 ............. 5.50 Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 ..... 7.690, 7.700, 28.260, 28.270, 28.280 Helicopter Sales (Aust) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1 ............................... 9.290 Heller Factors Pty Ltd v Toy Corp Pty Ltd [1984] 1 NSWLR 121 .................................... 23.250 Helou v PD Mulligan Pty Ltd (2003) 57 NSWLR 74 .................................................... 20.220 Hely-Hutchinson v Brayhead Ltd [1968] 1 QB 549 ................................ 13.230, 13.240, 13.260 Hemms Cassell & Associates Pty Ltd v Nasr (1994) 8 ANZ Insurance Cases 61-212 ....... 25.1000, 25.1010 Henderson v Radio Corp Pty Ltd (1960) 60 SR (NSW) 576 ............................................. 30.2650 Henderson-Smart v Quality Blow Moulders Pty Ltd (2010) 25 VR 724 .............................. 20.142 Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 .................... 9.420, 14.270 Henthorn v Fraser [1892] 2 Ch 27 ........................ 3.300 Herbert Morris Ltd v Saxelby [1916] 1 AC 688 ....................................................... 8.400, 8.410 Herbohn v NZI Life Ltd (1998) 10 ANZ Insurance Cases 61-410 .................................. 25.420 Hermann v Charlesworth [1905] 2 KB 123 ......... 8.350, 8.640 Herne Bay Steamboat Co v Hutton [1903] 2 KB 683 ........................................................... 11.390 Hill v Van Erp (1997) 188 CLR 159 ................... 28.380 Hillam v Iacullo (2015) 90 NSWLR 422 ............. 10.140 Hinchliff v Abu-Dabat (1998) 41 IPR 400 ........ 30.1110 Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 ........................................... 8.400

Hobbs v Petersham Transport Co Pty Ltd (1971) 124 CLR 220 ...................................... 21.410 Hodges v Waters (2015) 232 FCR 97 ................. 29.640 Hoffmann v Boland [2013] Aust Torts Reports 82-134; [2013] NSWCA 158 ............ 28.100 Hogan v Koala Dundee Pty Ltd (1988) 20 FCR 314 ...................................................... 30.2620 Hollis v Vabu Pty Ltd (2001) 207 CLR 21 ......... 28.810, 34.200, 34.210, 34.220 Holmes v Jones (1907) 4 CLR 1692 ..................... 7.540 Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999 ........................................................... 10.190 Honey v Australian Airlines Ltd (1989) 14 IPR 264 ........................................................ 30.2670 Hong Kong Bank of Australia Ltd v Larobi Pty Ltd (1991) 23 NSWLR 593 ..................... 20.170 Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] QB 26 ..................... 11.300 Hopcroft v Edmunds (2013) 116 SASR 191 ........ 3.240, 13.231 Horne v Queensland (1995) 22 MVR 111 .......... 28.120 Horne v Queensland [1995] Aust Torts Reports 81-343 .............................................. 28.120 Hornsby Building Information Centre Pty Ltd v Sydney Building Information Centre Ltd (1978) 140 CLR 216 ...................................... 17.740 Horsell International Pty Ltd v Divetwo Pty Ltd (2013) 18 ANZ Ins Cas 61-991; [2013] NSWCA 368 ....................................... 25.980 Hospital Products Ltd v United States Surgical Corp (1984) 156 CLR 41 ............................... 15.480 Household Fire & Carriage Accident Insurance Co Ltd v Grant (1879) 4 Ex D 216 .................................................................. 3.300 Howard Smith & Co Ltd v Varawa (1907) 5 CLR 68 .......................................................... 13.140 Howe v Lord Dartmouth (1802) 7 Ves 137; 32 ER 56 ........................................................ 29.480 Howe v Teefy (1927) 27 SR (NSW) 301 ............. 12.200 Hoyts Pty Ltd v Burns (2003) 201 ALR 470 ....... 28.500 Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133 ....... 9.140 Hubbard v Vosper [1972] 2 QB 84 ........ 30.610, 30.620 Hudson v Sigalla (2015) 235 FCR 122 ............... 31.270 Hudson Crushed Metals Pty Ltd v Henry [1985] 1 Qd R 202 ......................................... 11.230 Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 ........... 3.60 Humberstone v Northern Timber Mills (1949) 79 CLR 389 ........................... 28.810, 34.160 Humphries v Proprietors “Surfers Palms North” Group Titles Plan 1955 (1994) 179 CLR 597 ................................................... 8.620 Hungerfords (Registered Firm) v Walker (1989) 171 CLR 125 ...................................... 28.320 Hunt & Hunt Lawyers v Mitchell Morgan Nominees Pty Ltd (2013) 247 CLR 613 ......... 28.500 Hunter BNZ Finance Ltd v CG Maloney Pty Ltd (1988) 18 NSWLR 420 ........................... 24.790 Hurst v Bryk [2002] 1 AC 185 ............................ 26.510 Hycenko v Hrycenko [2016] VSC 247 ................ 22.430

xxv

xxvi

Australian Commercial Law

Hydraulic Engineering Co Ltd v McHaffie, Goslett & Co (1879) 4 QBD 670 ................. 14.1090

I I.Lan Systems Inc v Netscout Service Level Corp 183 F Supp 2d 328 (D Mass 2002) ....... 16.180 ING Bank (Australia) Ltd v Leagrove Pty Ltd [2012] 1 Qd R 140 .......................................... 20.70 IRAF Pty Ltd v Graham [1982] 1 NSWLR 419 .................................................................. 8.610 IRC v Goldblatt [1972] Ch 498 ........................ 27.1100 IceTV Pty Ltd v Nine Network Australia Pty Ltd (2009) 239 CLR 458 .................. 30.120, 30.130 Ilich and Baystar Corp Pty Ltd [2004] WASTR 25 ....................................................... 16.80 Imbree v McNeilly (2008) 236 CLR 510 ............. 1.540, 28.470, 28.480, 28.490 Impact Funds Management Pty Ltd v Roy Morgan Research Ltd [2016] VSC 221 .......... 22.840 Impuls ID Internacional v Psion-Teklogix Inc 234 F Supp 2d 1267 (SD Fla 2002) .................. 15.30 Inflatable Toy Co Pty Ltd v State Bank of New South Wales (1994) 34 NSWLR 243 ..... 23.250 Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (1991) 28 FCR 151 ................................... 7.390 Innotex Precision Ltd v Horei Image Products Inc 679 F Supp 2d 1356 (ND Ga 2009) .......... 15.20, 15.60 Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (2013) 101 IPR 484 ....................................... 10.150 Insight Vacations Pty Ltd v Young (2011) 243 CLR 149 .......................................................... 1.520 International Business Machines Corp v Commissioner of Patents (1991) 33 FCR 218 .............................................................. 30.1850 International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 ........................................ 13.20 Interstate Parcel Express Co Pty Ltd v Time-Life International (Nederlands) BV (1977) 138 CLR 534 ......................... 30.490, 30.500 Investmentsource Corporation Pty Ltd v Knox Street Apartments Pty Ltd (2002) 56 NSWLR 27 .................................................... 13.440 Ireland v Wightman (2014) 119 SASR 266 ........... 1.370 Irving v Heferen [1995] 1 Qd R 255 ...... 21.550, 21.670 Italian Imported Foods Pty Limited v Pucci SRL (Italy) [2006] NSWSC 1060 ..................... 15.30 It’s Intoxicating Inc v Maritim Hotelgesellschaft mbH 2013 WL 3973975 (MD Pa 2013) ..................................... 15.50, 15.120

J J & H Just Holdings Pty Ltd v Bank of New South Wales (1971) 125 CLR 546 .................. 22.500 J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 ................................. 12.520

J McPhee & Son (Aust) Pty Ltd v Australian Competition and Consumer Commission (2000) 172 ALR 532 ...................................... 18.530 JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378 ........ 7.660, 14.830 JB & BL Nominees Pty Ltd v McCormack [1982] WAR 258 ............................................ 14.190 JC Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 ........................................ 12.370 JGL Investments Pty Ltd v Maracorp Financial Services Ltd [1991] 2 VR 168 ......... 20.180 JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 ........................................ 9.160, 9.170 JW Broomhead (Vic) Pty Ltd (in liq) v J W Broomhead Pty Ltd [1985] VR 891 ................ 29.610 Jaber v Rockdale City Council [2008] Aust Torts Reports 81-952 ..................................... 28.170 Jackson v Cochrane [1989] 2 Qd R 23 ............... 21.100 Jaensch v Coffey (1984) 155 CLR 549 .................. 28.90 James v Commonwealth (1939) 62 CLR 339 ...... 21.400 James v Western Australia (2010) 184 FCR 582 .............................................................. 22.1070 James Drummond & Sons v Van Ingren & Co (1887) 12 App Cas 284 .................................. 14.380 Jango v Northern Territory (2007) 159 FCR 531 ................................................. 22.980, 22.1290 Janssen-Cilag Pty Ltd v Pfizer Pty Ltd (1992) 37 FCR 526 ................................................... 17.820 Jansz v GMB Imports Pty Ltd [1979] VR 581 ....... 14.80 Jardin v Metcash Ltd (2011) 285 ALR 677 ........... 8.421 Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101 ......................................................... 5.240 Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 ............................. 8.270 Jewellery Group Pty Ltd v Australian Competition and Consumer Commission [2013] FCAFC 144 ........................................ 17.370 Joachimson v Swiss Bank Corp [1921] 3 KB 110 ................................................................... 24.40 John Alexander’s Clubs Pty Ltd v White City Tennis Club Ltd (2010) 241 CLR 1 ................ 29.210 Johns Period Furniture Pty Ltd v Commonwealth Savings Bank of Australia (1980) 24 SASR 224 ......................... 24.810, 24.820 Johnson v American Home Assurance Company (1998) 192 CLR 266 ........ 25.490, 25.500 Johnson v Australian Guarantee Corp Ltd (1992) 59 SASR 382 ...................................... 20.200 Johnson v Buttress (1936) 56 CLR 113 ................. 7.800 Johnson Matthey Ltd v Australia and New Zealand Banking Group Ltd [1989] Aust Torts Reports 80-256 ..................................... 24.830 Johnson Tiles Ltd v Esso Australia Pty Ltd [2003] Aust Torts Reports 81-692; [2004] VSC 466 ........................................................ 28.220 Jones v Bartlett (2000) 205 CLR 166 .................... 10.70 Jones v Canavan [1972] 2 NSWLR 236 .............. 13.340 Jones v Commonwealth (1987) 71 ALR 497 ......... 1.540 Jones v Dumbrell [1981] VR 199 .......................... 7.510 Jones v Schiffmann (1971) 124 CLR 303 ............ 12.190

Table of Cases

Jones v Vernon’s Pools Ltd [1938] 2 All ER 626 ....................................................... 4.200, 4.210 Jonsson v Arkway (2003) 58 NSWLR 451 ......... 19.190 Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 .... 11.480 Jovanovic v Commonwealth Bank (2004) 87 SASR 570 ....................................................... 20.120 Juric-Kacunic v Vaupotic (2013) 18 BPR 35131; [2013] NSWSC 41 ............................... 5.180 Just Juice Corp Pty Ltd (recs and mgrs apptd), Re (1992) 37 FCR 445 ................................. 27.1150 Justin Seward Pty Ltd v Commissioners of Rural and Industries Bank (1980) 1 SR (WA) 272 ....................................................... 24.840

K K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 ............................. 1.370 KB Docker, Re (1938) 10 ABC 198 .................... 31.400 KMJ v Tasmania (2011) 20 Tas R 425 .................. 1.540 Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 .......................................................... 7.925 Karamihos v Bendigo and Adelaide Bank Ltd [2014] HCASL 176 ........................................ 7.1070 Karatjas v Deakin University (2012) 35 VR 355 ................................................................ 28.120 Karedis Enterprises Pty Ltd v Antoniou (1995) 59 FCR 35 .......................................... 17.860 Karger v Paul [1984] VR 161 .............................. 29.490 Kargotich v Mustica [1973] WAR 167 .............. 14.1000 Karpany v Deitman (2013) 252 CLR 507 ......... 22.1020 Kasler & Cohen v Slavouski [1928] 1 KB 78 .... 14.1070 Kayford Ltd, Re [1975] 1 WLR 279 ................... 29.310 Keighley, Maxsted & Co v Durant [1901] AC 240 ................................................................ 13.550 Keith Spicer Ltd v Mansell [1970] 1 WLR 333 .................................................................. 26.80 Keller v LED Technologies Pty Ltd (2010) 185 FCR 449 ............................................... 30.1600 Kelly v Kelly (1990) 64 ALJR 234 ....................... 26.300 Kelly v Solari (1841) 9 M & W 54; 152 ER 24 .................................................................... 7.370 Kelly v The Queen (2004) 218 CLR 216 ............... 1.390 Kelner v Baxter (1866) LR 2 CP 174 ..... 13.510, 27.340 Kelsen v Imperial Tobacco [1957] 2 QB 334 ....... 28.680 Khan v Miah [2000] 1 WLR 2123 ........................ 26.50 Khoury v Khouri (2006) 66 NSWLR 241 ............. 5.330 Kiama Constructions v MC Casella Building Co Pty Ltd (1980) 10 IPR 345 ..................... 30.1150 Kimberly-Clark Australia Pty Ltd v Multigate Medical Products Pty Ltd (2011) 92 IPR 21 ................................................................. 30.2110 King v Philcox (2015) 255 CLR 304 ..................... 28.90 Kinsela v Caldwell (1975) 132 CLR 458 ............ 29.310 Kiriri Cotton Co Ltd v Dewani [1960] AC 192 .................................................................. 8.560 Kizbeau Pty Ltd v WG & B Pty Ltd (1995) 184 CLR 281 ................................................. 17.790 Knight v Bell (1887) 13 VLR 878 ....................... 26.520

Knight v Beyond Properties Pty Ltd (2007) 242 ALR 586 ................................................... 17.80 Koninklijke Philips Electronics NV v Remington Products Australia Pty Ltd (2000) 100 FCR 90 ...................................... 30.2390 Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 ......... 11.300, 12.20, 12.30, 12.40 Kooragang Investments Pty Ltd v Richardson & Wrench Ltd [1982] AC 462 ....................... 13.660 Korda v Australian Executor Trustees (SA) Ltd (2015) 255 CLR 62 ......... 29.80, 29.190, 29.280 Koster’s Premier Pottery Pty Ltd v Bank of Adelaide (1981) 28 SASR 355 ........................ 24.660 Koufos v Czarnikow Ltd [1969] 1 AC 350 ......... 12.120 Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 ........ 9.20 Kowalczuk v Accom Finance (2008) 77 NSWLR 205 ....................................... 7.980, 7.1060 Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 ................................................... 7.520 Krell v Henry [1903] 2 KB 740 ........................... 11.370 Ku-ring-gai Co-operative Building Society (No 12) Ltd, Re (1978) 22 ALR 621 .............. 18.370 Kwan, Re; Ex parte Hastings Deering (Solomon Islands) Ltd (1987) 15 FCR 264 .... 20.190 Kwei Tek Chao v British Traders and Shippers Ltd [1954] 2 QB 459 ..................................... 14.820

L L J Hooker Ltd v W J Adams Estate Pty Ltd (1977) 138 CLR 52 ........................................ 13.410 L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 ......................................... 11.270 LED Builders Pty Ltd v Eagle Homes Pty Ltd (1999) 44 IPR 24 ......................................... 30.1170 LED Technologies Pty Ltd v Elecspess Pty Ltd (2008) 80 IPR 85 .......................... 30.1600, 30.1650 LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 ................................. 10.80 LJP Investments Pty Ltd v Howard Chia Investments Pty Ltd (No 3) (1991) 24 NSWLR 499 .................................................. 28.680 La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 ..................... 1.540 La Rosa v Nudrill Pty Ltd [2013] Aust Contract Reports 90-383; [2013] WASCA 18 .................................................................... 9.420 Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198 ...................................................... 9.20 Ladbroke (Football) Ltd v William Hill (Football) Ltd [1964] 1 WLR 273 ...... 30.80, 30.100, 30.320 Lancashire Loans Ltd v Black [1934] 1 KB 380 .................................................................. 7.800 Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 .................. 1.180, 1.190, 1.540 Laresu Pty Ltd v Clark [2010] Aust Torts Reports 82-068; [2010] NSWCA 180 .............. 20.30

xxvii

xxviii

Australian Commercial Law

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 .............. 11.240 Lavin v Toppi (2015) 254 CLR 459 ....... 20.170, 20.180 Lawrence v Coal & Allied Mining Services (2012) 202 IR 388 ............................ 34.310, 34.320 Lawrence v Kempsey Shire Council (1995) 87 LGERA 49 ..................................................... 28.770 Lawrie v Commonwealth Trading Bank of Australia [1970] Qd R 373 ............................ 24.780 Laws v GWS Machinery Pty Ltd (2007) 209 FLR 53 ......................................................... 17.1020 Laybutt v Amoco Australia Pty Ltd (1974) 132 CLR 57 ................................................... 22.690 Lazenby Garages Ltd v Wright [1976] 1 WLR 459 .............................................................. 14.1010 Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 661 .............................................. 4.150 Leach v Commonwealth Bank of Australia [2014] QSC 295 ............................................. 22.630 Leaf v International Galleries [1950] 2 KB 86 ........ 7.90, 7.100 Leahy v Attorney-General (NSW) [1959] AC 457 ................................................................ 29.270 Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381 ................................................. 7.630 Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509 ........ 9.20, 13.140, 26.360 Lee v Haxton Haulage Pty Ltd (1994) 21 MVR 339 ....................................................... 32.390 Lee Gleeson Pty Ltd v Sterling Estates Pty Ltd (1991) 23 NSWLR 571 .................................... 24.40 Legal & General Insurance Australia Ltd v Eather (1986) 6 NSWLR 390 ............ 25.470, 25.480 Leibler v Air New Zealand Ltd (No 2) [1999] 1 VR 1 ............................................................. 7.450 Leslie Homes (Aust) Pty Ltd, Re (1984) 8 ACLR 1020 .................................................. 27.1150 Letang v Cooper [1965] 1 QB 232 ...................... 28.610 Lewis v Averay [1972] 1 QB 198 ............... 7.260, 7.270 Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1991] ASC 56-038 ...... 9.440, 14.330 Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 404 ............... 5.180 Liftronic Pty Ltd v Unver (2001) 179 ALR 321 ................................................................ 28.560 Lincoln Hunt Australia Pty Ltd v Willesee (1986) 4 NSWLR 457 .................................... 28.680 Lindner v Murdock’s Garage (1950) 83 CLR 628 .................................................................. 8.400 Lindsay v CIC Insurance Ltd (1989) 16 NSWLR 673 ..................................... 25.140, 25.240 Linkenholt Pty Ltd v Quirk [2000] ASC 155-040; [2000] VSC 166 .............................. 19.190 Lintrose Nominees Pty Ltd v King [1995] 1 VR 574 .......................................................... 13.310 Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 .................................................... 8.420 Livingston v Commissioner of Stamp Duties (Qld) (1960) 107 CLR 411 ............................ 22.710 Lloyd v Citicorp Australia Ltd (1986) 11 NSWLR 286 .................................................. 28.320

Lloyd v Coote [1915] 1 KB 242 ............................ 7.800 Lloyd v Grace, Smith & Co [1912] AC 716 ....... 26.470, 27.1150 Lloyd’s Bank Ltd v Bundy [1975] QB 326 ........... 7.840, 7.850 Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 ................................... 8.380 Lockhart v Osman [1981] VR 57 ...................... 14.1150 Lockwood Security Products Pty Ltd v Doric Products Pty Ltd (No 2) (2007) 235 CLR 173 .............................................................. 30.1900 London Bank of Australia Ltd v Kendall (1920) 28 CLR 401 ........................................ 24.720 London Corp, City of v Appleyard [1963] 1 WLR 982 ....................................................... 22.180 London General Omnibus Co Ltd v Holloway [1912] 2 KB 72 ................................................ 20.80 London Plywood Ltd v Nasic Oak Ltd [1939] 2 KB 343 ........................................................ 14.790 Louth v Diprose (1992) 175 CLR 621 ...... 7.900, 7.910, 7.915 Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 ...................................... 12.551 Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 ......... 12.270 Luton Investments Pty Ltd v Davreal Pty Ltd [1969] 1 NSWR 289 ...................................... 26.610 Luxor (Eastbourne) Ltd v Cooper [1941] AC 108 ................................................................ 13.400 Ly v R (2014) 227 FCR 304 ............................. 30.1330 Lynch v Lynch (By Her Tutor Lynch) (1991) 25 NSWLR 411 ............................................. 28.100 Lynch v Stiff (1944) 68 CLR 428 ........................ 26.430 Lyritzis v Westpac Banking Corp [1994] ATPR 41-360 ................................................... 24.40 Lysaght v Edwards (1876) 2 Ch D 499 ............... 22.680

M M Young Legal Associates Ltd v Zahid [2006] 1 WLR 2562 ......................................... 26.50, 26.60 MCC-Marble Ceramic Center Inc v Ceramica Nuova D’Agostino SpA 144 F 3d 1384 (11th Cir 1998) .............................................. 15.110 MJA Scientifics International Pty Ltd v SC Johnson & Son Pty Ltd (1998) 43 IPR 287 .... 30.2110 MMI General insurance Ltd v Baktoo (2000) 48 NSWLR 605 ................................ 25.780, 25.790 MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) (2010) 31 VR 575 .................................................................. 9.470 Ma v Adams (2015) 18 BPR 35,557; [2015] NSWSC 1452 ................................................. 24.120 Mabo v State of Queensland (No 2) (1992) 175 CLR 1 ........................................ 22.900, 22.910 MacKenzie v Rees (1941) 65 CLR 1 ................... 11.180 MacKinlay v Derry Dew Pty Ltd (2014) 46 WAR 247 ......................................................... 8.610 Macedonian Orthodox Community Church of St Petka Inc v His Eminence Petar (2008) 237 CLR 66 ........................................ 29.640

Table of Cases

Mackay v National Australia Bank Ltd [1998] 1 VR 173 ......................................................... 20.40 Mackay Sugar Ltd v Quadrio [2015] QCA 41 ...... 4.157 Mackintosh v Johnson (2013) 37 VR 301 ............. 7.915 Macleod v The Queen (2003) 214 CLR 230 ......... 27.50 Macromex Srl v Globex International Inc 2008 WL 1752530 (SD NY 2008) ................. 15.400 Macromex Srl v Globex International Inc 330 Fed Appx 241 (2d Cir 2009) .......................... 15.400 Maggbury Pty Ltd v Hafele Australia Pty Ltd (2001) 210 CLR 181 .................................... 30.2720 Mahmoud & Ispahani, Re [1921] 2 KB 716 .......... 8.40, 8.120 Mahoney v McManus (1981) 180 CLR 370 ....... 20.170 Maisano v Car and Home Finance Pty Ltd [2006] ASC 155-078; [2005] VCAT 1755 ...... 19.620 Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd (1973) 129 CLR 48 ................................. 22.280 Makita (Australia) Pty Ltd v Black & Decker (Australasia) Pty Ltd (1990) 18 IPR 270 ........ 17.770 Makower, McBeath & Co Pty Ltd v Dalgety & Co Ltd [1921] VLR 365 ............................ 21.170 Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 ......................... 4.155, 9.20 Malik v Bank of Credit and Commerce International SA [1998] AC 20 ....................... 34.250 Manbre Saccharine Co Ltd v Corn Products Co Ltd [1919] 1 KB 198 ................................ 14.820 Mander v O’Brien [1934] SASR 87 ..................... 30.100 Manufacturers’ Mutual Insurance Ltd v John H Boardman Insurance Brokers Pty Ltd (1994) 179 CLR 65 ...................................... 25.1060 Manufacturers’ Mutual Insurance Ltd v Stargift Pty Ltd (1984) 3 ANZ Insurance Cases 60-615 ................................................. 25.460 Maple Flock Co v Universal Furniture Products (Wembley) Ltd [1934] 1 KB 148 ...... 14.800 March v E & MH Stramare Pty Ltd (1991) 171 CLR 506 ................................................. 28.500 Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213 ................ 1.850 Marks & Spencer Plc v One in a Million Ltd [1999] 1 WLR 903 ......................................... 16.330 Marsh v Baxter (2015) 49 WAR 1 ...................... 28.220 Marsh v Joseph [1897] 1 Ch 213 ........................ 13.140 Marsh & McLennan Pty Ltd v Stanyers Transport Pty Ltd [1994] 2 VR 232 ............... 13.540 Martin v Gale (1876) 4 Ch D 428 ........................ 6.130 Mason v New South Wales (1959) 102 CLR 108 ................................................................ 12.520 Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 ........................... 8.70, 30.2790 Masters v Cameron (1954) 91 CLR 353 ............... 3.260 Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 ................................... 9.30 Max Christmas Real Estate v Schumann Marine Pty Ltd [1987] 1 Qd R 325 ................ 13.430 Maxwell v Highway Hauliers Pty Ltd (2014) 252 CLR 590 ................................................. 25.615

Maxxsonics USA Inc v Fengshun Peiying Electro Acoustic Co Ltd 2012 WL 962698 (ND Ill 2012) ................................................... 15.60 Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 ..................................................... 9.130 Maynegrain Pty Ltd v Compafina Bank [1982] 2 NSWLR 141 .................................... 13.550 Mazzetta Co llc c Dégust-Mer inc 2011 QCCA 717 ....................................................... 15.30 McCabe v British American Tobacco Australia Services Ltd [2002] VSC 73 ............ 16.270 McCann v Switzerland Insurance Australia Ltd (2000) 203 CLR 579 ............................... 25.440 McCloy v New South Wales (2015) 89 ALJR 857 .................................................................. 1.190 McColl’s Wholesale Pty Ltd v State Bank of New South Wales [1984] 3 NSWLR 365 ....... 20.160 McComb v Martin Box Marine Holdings Pty Ltd (1992) 8 SR (WA) 193 ............................. 21.160 McCormack v Commonwealth (1984) 155 CLR 273 ........................................................ 12.500 McDowell Valley Vineyards Inc v Sabate USA Inc 2005 WL 2893848 (ND Cal 2005) ............ 15.30 McEvoy v ANZ Banking Group Ltd [1988] Aust Torts Reports 80-151 ............................. 28.320 McGrath v HNSW Pty Ltd (2014) 219 FCR 489 ................................................................ 17.850 McHale v Watson (1964) 111 CLR 384 ............. 28.470, 28.610 McHugh v Australian Jockey Club Ltd (2014) 314 ALR 20 ..................................................... 8.480 McInnis v R (1979) 143 CLR 575 ...................... 32.325 McKern v Minister Administering the Mining Act 1978 (2010) 28 VR 1 ................................. 1.540 McLaughlin v City Bank of Sydney (1912) 14 CLR 684 .......................................................... 6.180 McLennan v Insurance Australia Ltd (2014) 286 FLR 453 .................................................. 25.553 McMahon v National Foods Milk Ltd (2009) 25 VR 251 .............................................. 9.30, 9.170 McNally v Australia and New Zealand Banking Group [2001] ASC 155-047 ............. 19.580 McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 .......... 7.110, 7.120 McWaters v Day (1989) 168 CLR 289 ............... 32.170 McWilliams Wines Pty Ltd v Liaweena (NSW) Pty Ltd [1988] ASC 55-695 ................ 14.330 McWilliam’s Wines Pty Ltd v McDonald’s System of Australia Pty Ltd (1980) 33 ALR 394 ....................................................... 17.60, 17.90 Melway Publishing Pty Ltd v Robert Hicks Pty Ltd (2001) 205 CLR 1 ................ 18.200, 18.210 Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 ......................... 3.190 Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252 .............................................. 9.30 Mercantile Union Guarantee Corp Ltd v Ball [1937] 2 KB 498 ................................................ 6.90 Mercer v Commissioner for Road Transport and Tramways (NSW) (1936) 56 CLR 580 .... 28.430

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Merck Sharp & Dohme (Australia) Pty Ltd v Peterson (2011) 196 FCR 145 ...... 17.1075, 17.1190, 17.1220, 28.500 Meridien AB Pty Ltd v Jackson [2014] 1 Qd R 142 ............................................................... 1.360 Merritt v Merritt [1970] 1 WLR 1211 ........... 4.10, 4.60 Mersey Docks and Harbour Board v Coggins & Griffith (Liverpool) Ltd [1947] AC 1 ......... 28.820 Merwin Pastoral Co Pty Ltd v Moolpa Pastoral Co Pty Ltd (1933) 48 CLR 565 ........ 15.480 Meskenas v ACP Publishing Pty Ltd (2006) 70 IPR 172 ................................................... 30.1520 Metropolitan Water Board v Dick, Kerr & Co Ltd [1918] AC 119 ......................................... 11.410 Meyers Taylor Pty Ltd v Vicarr Industries Ltd (1977) 137 CLR 228 .................................... 30.1890 Miami Valley Paper LLC v Lebbing Engineering & Consulting GmbH 2006 WL 2924779 .................................................... 15.40 Miami Valley Paper LLC v Lebbing Engineering & Consulting Gmbh 2009 WL 818618 (SD Ohio 2009) .......................... 15.120 Microsoft Corpn v Ezy Loans Pty Ltd (2004) 63 IPR 54 ..................................................... 30.1190 Microsoft Corporation v Goodview Electronics Pty Ltd (1999) 46 IPR 159 ......... 30.1250 Midaz Pty Ltd v Peters McCarthy Insurance Brokers Pty Ltd [1999] 1 Qd R 279 ............... 25.150 Midgley Estates Ltd v Hand [1952] 2 QB 432 .... 13.430 Midland Bank Ltd v Reckitt [1933] AC 1 ........... 24.730 Milirrpum v Nabalco Pty Ltd (1971) 17 FLR 141 ................................................................ 22.880 Miller & Associates Insurance Broking Pty Ltd v BMW Australia Finance Ltd (2010) 241 CLR 357 ................................................. 17.131 Miller Associates (Australia) Pty Ltd v Bennington Pty Ltd [1975] 2 NSWLR 506 ..... 13.530 Milliner v Milliner (1908) 8 SR (NSW) 471 ............ 4.50 Mills v Meeking (1990) 169 CLR 214 ....... 1.390, 1.410 Milpurrurru v Indofurn Pty Ltd (1994) 54 FCR 240 .......................... 30.480, 30.1200, 30.1240 Ministry of Health v Simpson [1951] AC 251 ..... 29.720 Minnesota Mining & Manufacturing Co v Beiersdorf (Aust) Ltd (1980) 144 CLR 253 .... 30.1900 Mirror Newspapers Ltd v Queensland Newspapers Pty Ltd [1962] Qd R 305 ........... 30.100 Mitchell v Ealing London Borough Council [1979] QB 1 ................................................... 21.140 Mitchell v Valherie (2005) 93 SASR 76 ................. 7.650 Mitchell Aircraft Spares Inc v European Aircraft Service AB 23 F Supp 2d 915 (ND Ill 1998) ......................................................... 15.100 Mitor Investments Pty Ltd v General Accident Fire & Life Assurance Corp [1984] WAR 365 ................................................... 13.360, 13.480 Modbury Triangle Shopping Centre Pty Ltd v Anzil (2000) 205 CLR 254 ............... 28.120, 28.500 Molinas v Smith [1932] QSR 77 ......................... 26.360 Moltoni Corporation Pty Ltd v QBE Insurance Ltd (2001) 205 CLR 149 ............... 25.600 Momcilovic v The Queen (2011) 245 CLR 1 ...... 32.170

Moneywood Pty Ltd v Salamon Nominees Pty Ltd (2001) 202 CLR 351 ............................... 13.440 Montana Hotels Pty Ltd v Fasson Pty Ltd (1986) 61 ALJR 282 ...................................... 28.770 Montefiore v Smith (1876) 14 SCR (NSW) 245 ................................................................ 26.300 Montevento Holdings Pty Ltd v Scaffidi (2012) 246 CLR 325 ...................................... 29.390 Moorcock, The (1889) 14 PD 64 ............... 9.240, 9.250 Moorgate Tobacco Co Ltd v Philip Morris Ltd (No 2) (1984) 156 CLR 414 .................. 30.2560 Moorhouse v Angus & Robertson (No 1) Pty Ltd [1981] 1 NSWLR 700 ............................. 22.250 Morris v Baron & Co [1918] AC 1 ....................... 11.90 Morris v CW Martin & Sons Ltd [1966] 1 QB 716 ................................ 21.170, 21.180, 21.190 Moses v Western Australia (2007) 160 FCR 148 ................................................................ 22.980 Moss v Elphick [1910] 1 KB 846 ........................ 26.510 Moss v Sun Alliance Australia Ltd (1990) 55 SASR 145 ....................................................... 25.110 Moss SS Co v Whinney [1912] AC 254 ............. 27.1010 Motor Accident Mutual Insurance Pty Ltd v Kelly (1999) 10 ANZ Insurance Cases 61-420 ........................................................... 25.870 Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 ....... 1.570, 9.20 Mulligan v Coffs Harbour City Council (2005) 223 CLR 486 ...................................... 28.170 Multi-Juice SA v Snapple Beverage Corp 2006 WL 1519981 .................................................... 15.40 Multisteps Pty Ltd v Source and Sell Pty Ltd (2013) 214 FCR 323 .................................... 30.1600 Munro v Willmott [1949] 1 KB 295 .................... 13.180 Murphy v Overton Investments Pty Ltd (2004) 216 CLR 388 ...................................... 17.790 Murray’s Transport NSW Pty Ltd v CGU Insurance Ltd (2013) 118 SASR 11 ................ 25.760 Murrihy v Betezy.com.au Pty Ltd (2013) 238 IR 307 ............................................................ 34.345 Murrihy v Betezy.com.au Pty Ltd (No 2) [2013] FCA 1146 ........................................... 34.345 Musca v Astle Corp Pty Ltd (1988) 80 ALR 251 ................................................................ 17.820 Muschinski v Dodds (1985) 160 CLR 583 ......... 29.190 Mutual Life and Citizens’ Assurance Co Ltd v Evatt (1968) 122 CLR 556 ............... 28.280, 28.330 Myer Stores Ltd v Jovanovic [2004] VSC 478 ..... 28.710 Myer Stores Ltd v Soo [1991] 2 VR 597 ............. 28.650

N NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 46 .......................................... 1.540 NE Perry Pty Ltd v Judge (2002) 84 SASR 86 ...... 8.430, 8.480 NLS Pty Ltd v Hughes (1966) 120 CLR 583 ...... 12.332 NP Generations Pty Ltd v Feneley (2001) 80 SASR 151 ..................................................... 30.2760

Table of Cases

NRM Corporation Pty Ltd v Australian Competition and Consumer Commission [2016] FCAFC 98 .......................................... 17.240 NT Power Generation Pty Ltd v Power and Water Authority (2004) 219 CLR 90 ............. 18.260 NV Philips Gloeilampenfabrieken v Mirabella International Pty Ltd (1995) 183 CLR 655 .... 30.1810 Nagle v Rottnest Island Authority (1993) 177 CLR 423 ........................................................ 28.170 Naomi Marble and Granite Pty Ltd v FAI General Insurance Co Ltd [1999] 1 Qd R 507 ................................................................ 25.160 Napier v Public Trustee (WA) (1980) 32 ALR 153 ................................................................ 29.180 Narain v Euroasia (Pacific) Pty Ltd (2009) 26 VR 387 .......................................................... 20.150 National Australia Bank v Blacker (2000) 104 FCR 288 ........................................................ 22.340 National Australia Bank Ltd v Hokit Pty Ltd (1996) 39 NSWLR 377 .................................. 24.660 National Australia Bank Ltd v Rose [2016] VSCA 169 ...................................................... 24.980 National Commercial Banking Co of Australia Ltd v Robert Bushby Ltd [1984] 1 NSWLR 559 ............................................... 24.790 National Commercial Banking Corp of Australia Ltd v Batty (1986) 160 CLR 251 .... 26.450 National Commercial Banking Corp of Australia Ltd v Solanowski [1984] NSW Conv R 55-194 .............................................. 22.640 National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 .................................................................. 1.360 National Provincial Bank of England Ltd v Glanusk [1913] 3 KB 335 ................................ 20.70 National Research Development Corp v Commissioner of Patents (1959) 102 CLR 252 .............................................................. 30.1820 National Rugby League Investments Pty Ltd v Singtel Optus Pty Ltd (2012) 201 FCR 147 .... 16.570, 16.580, 30.960 National Westminster Bank Plc v Morgan [1985] AC 686 ................................................. 7.850 Nationwide News Pty Ltd v Australian Competition and Consumer Commission (1996) 71 FCR 215 ........................................ 17.360 Neill v Fallon [1995] Aust Torts Reports 81-321 ............................................................. 9.470 Nelson v Dahl (1879) 12 Ch D 568 ...................... 9.300 Neon Signs (A/asia) Ltd, Re [1965] VR 125 ...... 27.1010 Neowarra v Western Australia [2003] FCA 1402 ............................................... 22.980, 22.1010 Nesbit Evans Group Australia Pty Ltd v Impro Ltd (1997) 39 IPR 56 ........................ 30.2110 Network Ten Pty Ltd v TCN Channel Nine Pty Ltd (2004) 218 CLR 273 ......................... 30.930 New South Wales v Bujdoso (2005) 227 CLR 1 .................................................................... 28.120 New South Wales v Commonwealth (1990) 169 CLR 482 ................................................... 1.110

New South Wales v Commonwealth (Work Choices Case) (2006) 229 CLR 1 ......... 1.110, 34.20, 34.40, 34.50 New South Wales v Fahy (2007) 232 CLR 486 ................................................................ 28.390 New South Wales v Lepore (2003) 212 CLR 511 .................................................... 28.830, 28.845 Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 .......................................... 1.410 News Ltd v Australian Rugby Football League Ltd (1996) 64 FCR 410 ..................... 18.130 News Ltd v South Sydney District Rugby League Football Club Ltd (2003) 215 CLR 563 ................................................................. 18.110 Ngalakan People v Northern Territory (2001) 112 FCR 148 ................................................. 22.980 Nguyen v Nguyen (1990) 169 CLR 245 ............... 1.540 Nibali v Sweeting & Denney (WA) Pty Ltd [1989] Aust Torts Reports 80-258 .................... 21.90 Nicaro Holdings Pty Ltd v Martin Engineering Co (1990) 91 ALR 513 ............. 30.1890 Nicolazzo v Harb (2009) 22 VR 220 ............. 9.30, 9.70 Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 ........................................ 1.370 Noonan v Martin (1987) 10 NSWLR 402 .......... 13.740 Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 ................ 8.370 Norfolk Southern Ry Co v Power Source Supply Inc 2008 WL 2884102 (WD Pa 2008) ............................................................. 15.430 Norman v FEA Plantation Ltd (2011) 195 FCR 97 ............................................................ 4.220 Norris v Sibberas [1990] VR 161 ........... 13.590, 28.320 North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 .................................................................... 1.370 North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 ................ 7.780 North and South Wales Bank Ltd v Macbeth [1908] AC 139 ............................................... 23.100 Northern Territory v Alyawarr, Kaytetye, Warumungu, Wakay Native Title Claim Group (2005) 145 FCR 442 ........................... 22.980 Northern Territory v Arnhem Land Aboriginal Land Trust (2008) 236 CLR 24 .... 22.890 Northern Territory of Australia v Collins (2008) 235 CLR 619 .................................... 30.2100 Northside Developments Pty Ltd v Registrar-General (1990) 170 CLR 146 ......... 27.320 Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd [1994] 1 VR 74 .................................... 3.300

O O Mustard & Son v Dosen [1964] 1 WLR 109 .............................................................. 30.2720 O’Brien Glass Industries Ltd v Cool & Sons Pty Ltd (1983) 48 ALR 625 ........................... 18.380 O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 .................. 12.310, 12.320

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OOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 ..... 11.310, 11.471 O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 .......................................................... 1.550 Obeid v Australian Competition and Consumer Commission (2014) 226 FCR 471 ................................................................ 18.150 Oceanroutes (Aust) Pty Ltd v MC Lamond [1984] AIPC 90-134 ....................................... 30.260 Official Receiver in Bankruptcy v Schultz (1990) 170 CLR 306 ......................... 22.710, 31.430 Ogawa v Spender (2006) 151 FCR 228 ............ 30.1490 Olivaylle Pty Ltd v Flottweg AG [2010] FCAFC 62 ............................................. 3.200, 15.50 Olivaylle Pty Ltd v Flottweg AG (No 4) (2009) 255 ALR 632 ............................. 3.200, 15.50 Olley v Marlborough Court Ltd [1949] 1 KB 532 .................................................................. 9.390 Omlaw Pty Ltd v Delahunty [1995] 2 Qd R 389 ................................................................ 20.200 Onesteel Manufacturing Pty Ltd v BlueScope Steel (AIS) Pty Ltd (2013) 85 NSWLR 1 ........ 14.970 Orb Holdings Pty Ltd v Lombard Insurance Co (Aust) Ltd [1995] 2 Qd R 51 .................... 25.375 Oscar Chess Ltd v Williams [1957] 1 WLR 370 ................................................................... 9.110 Ottoman Bank Ltd v Chakarian [1930] AC 277 ................................................... 34.270, 34.290 Outboard Marine Australia Pty Ltd v Hecar Investments No 6 Pty Ltd (1982) 44 ALR 667 ................................................................ 18.310 Overseas Tankship (UK) Ltd v Miller Steamship Co Pty Ltd (The Wagon Mound No 2) [1967] AC 617 ..................................... 28.530 Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd (The Wagon Mound No 1) [1961] AC 388 ........................ 28.510, 28.520 Oyston v St Patrick’s College [2011] Aust Torts Reports 82-086; [2011] NSWSC 269 .... 28.120

P PGA v The Queen (2012) 245 CLR 355 ............... 32.20 Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 ............................................... 9.20, 13.260 Pacific Dunlop Ltd v Hogan (1989) 23 FCR 553 .............................................................. 30.2620 Pacific Film Laboratories Pty Ltd v Commissioner of Taxation (1970) 121 CLR 154 .......................................................... 30.40 Pacific Motor Auctions Pty Ltd v Motor Credits (Hire Finance) Ltd [1965] AC 867 ..... 14.700 Pacific Projects Pty Ltd (in liq), Re [1990] 2 Qd R 541 ....................................................... 31.540 Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835 ...... 12.331, 17.1440, 24.40 Page One Records Ltd v Britton [1968] 1 WLR 157 ....................................................... 12.400 Pan Australian Credits (SA) Pty Ltd v Kolim Pty Ltd (1981) 27 SASR 353 .......................... 22.340

Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579 .......................................................... 11.30 Panorama Developments (Guildford) Ltd v Fidelis Furnishing Fabrics Ltd [1971] 2 QB 711 .................................................... 13.260, 27.820 Pao On v Lau Yiu Long [1980] AC 614 ................ 5.170 Papas v Bianca Investments Pty Ltd (2002) 82 SASR 581 ......................................................... 7.280 Parastatidis v Kotaridis [1978] VR 449 .............. 21.240, 21.330 Paris v Stepney Borough Council [1951] AC 367 ................................................... 28.410, 28.420 Park Avenue Nominees Pty Ltd v Boon (on behalf of Weir) [2001] ASC 155-052; [2001] NSWSC 700 ....................................... 19.200 Parkdale Custom Built Furniture Pty Ltd v Puxu Pty Ltd (1982) 149 CLR 191 ................ 17.100 Parker v British Airways Board [1982] 1 QB 1004 .................................... 22.150, 22.160, 22.170 Parker v McKenna (1874) 10 Ch App 96 ............ 13.340 Parker v The Queen (1963) 111 CLR 610 ............. 1.540 Parkinson v College of Ambulance Ltd [1925] 2 KB 1 ................................................... 8.290, 8.550 Parmalat Australia Pty Ltd v VIP Plastic Packaging Pty Ltd (2013) 210 FCR 1 ............. 18.600 Partridge v Equity Trustees Executors & Agency Co Ltd (1947) 75 CLR 149 ............... 29.410 Pascoe v Boensch (2008) 250 ALR 24 ................. 29.280 Patrick Stevedores Operations No 2 Pty Ltd v Maritime Union of Australia (1998) 195 CLR 1 ................... 27.1180, 34.420, 34.430, 34.440 Patten v Thomas Motors Pty Ltd [1965] NSWR 1457 .................................................. 14.230 Paul v Cooke (2013) 85 NSWLR 167 ................. 28.510 Paul’s Retail Pty Ltd v Sports Leisure Pty Ltd (2012) 95 IPR 151 ....................................... 30.2425 Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 .............................. 12.440, 12.540, 12.550 Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 .................................... 3.260 Payzu Ltd v Saunders [1919] 2 KB 581 ............... 12.160 Pearce v Brain [1929] 2 KB 310 ............................ 6.110 Pearson v HRX Holdings Pty Ltd (2012) 205 FCR 187 .......................................................... 8.422 Peek v Gurney (1873) LR 6 HL 377 ..................... 7.490 Peldan v Anderson (2006) 227 CLR 471 ............ 31.490 Pendlebury v Colonial Mutual Life Assurance Society Ltd (1912) 13 CLR 676 ..................... 22.630 Penfolds Wines Pty Ltd v Elliott (1946) 74 CLR 204 ........................................... 21.380, 28.710 Pennington v Norris (1956) 96 CLR 10 .............. 28.560 Pepper v Attorney-General [2008] 2 Qd R 353 .................................................................. 1.420 Perez v Fernandez (2012) 260 FLR 1 ................ 30.1470 Performing Right Society Ltd v Harlequin Record Shop Ltd [1979] 1 WLR 851 ............. 30.370 Perisher Blue Pty Ltd v Nair Smith (2015) 90 NSWLR 1 ........................................................ 28.80

Table of Cases

Permanent Custodians Ltd v Upston [2007] ASC 155-083; [2007] NSWSC 223 ................ 19.580 Permanent Mortgages Pty Ltd v Cook [2006] ASC 155-082; [2006] NSWSC 1104 .............. 19.630 Permanent Mortgages Pty Ltd v Cook [2007] ASC 155-085; [2007] NSWCA 219 ................ 19.200 Permanent Trustee Australia Ltd v FAI General Insurance Co Ltd (in liq) (2003) 214 CLR 514 .......... 25.120, 25.130, 25.140, 25.160 Perpetual Trustee Co Ltd v John Fairfax & Sons Pty Ltd (1959) 76 WN (NSW) 226 ........ 29.310 Perpetual Trustee Co Ltd v Khoshaba (2006) 14 BPR 26 ........................................................ 7.980 Perpetual Trustees Australia Ltd v Heperu Pty Ltd (2009) 76 NSWLR 195 ........................... 24.915 Perre v Apand Pty Ltd (1999) 198 CLR 180 ........ 28.90, 28.180, 28.230, 28.240, 28.340 Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 ......................... 11.110, 11.140 Perry Engineering Pty Ltd v Bernold AG [2001] SASC 15 ............................................... 15.30 Person-to-Person Financial Services Pty Ltd v Sharari [1984] 1 NSWLR 745 ........................ 22.500 Petelin v Cullen (1975) 132 CLR 355 ........ 7.320, 7.330 Peter Pan Manufacturing Corp v Corsets Silhouette Ltd [1964] 1 WLR 96 .................. 30.2740 Peters v R (1998) 192 CLR 493 .......................... 32.520 Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 .......................................................... 8.510 Petersen v Union des Assurances de Paris Aird (1995) 8 ANZ Insurance Cases 61-244 .......... 25.560 Petrofina (Great Britain) Ltd v Martin [1966] Ch 146 ............................................................. 8.360 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795 ................................................ 3.40 Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 ................................................ 3.40 Phillips v Brooks Ltd [1919] 2 KB 243 ..... 7.250, 7.630, 14.690 Phonographic Performance Company of Australia Ltd v Cattch Pty Ltd (2013) 102 IPR 286 ........................................................ 30.1210 Photi v Target Australia Pty Ltd [2007] NSWDC 265 .................................................. 28.650 Photo Production Ltd v Securicor Transport Pty Ltd [1980] AC 827 .......................... 9.500, 9.510 Piccone v Suncorp Metway Insurance Ltd (2005) 148 FCR 437 ...................................... 31.270 Pico Holdings Inc v Wave Vistas Pty Ltd (2005) 214 ALR 392 ........................................ 5.100 Pioneer Container KH Enterprise (cargo owners) v Pioneer Container (owners) [1994] 2 AC 324 ............................................ 21.200 Pitt Son & Badgery Ltd v Proulefco SA (1984) 153 CLR 644 ................................................... 21.70 Pivovaroff v Chernabaeff (1978) 21 SASR 1 ....... 21.250 Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 ...... 12.190

Plasteel Windows Australia Pty Ltd v CE Heath Underwriting Agencies Pty Ltd (1990) 19 NSWLR 400 ..................... 25.330, 25.390 Plenty v Dillon (1991) 171 CLR 635 .................. 28.660 Pola v Australia and New Zealand Banking Group Limited [2015] NSWCA 146 ............... 22.630 Polish Community Credit Union Ltd, Re [2000] ASC 155-037 ...................................... 19.370 Polo/Lauren Company LP v Ziliani Holdings Pty Ltd (2008) 173 FCR 266 .......... 30.540, 30.1760 Polygram Records Pty Ltd v Monash Records (Aust) Pty Ltd (1985) 10 FCR 332 ............... 30.1250 Populin v HB Nominees Pty Ltd (1982) 41 ALR 471 ...................................................... 30.2110 Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 .......................................................... 10.40 Positive Endeavour Pty Ltd v Madigan (2009) 105 SASR 109 ....................................... 8.390, 8.600 Povey v Qantas Airways Ltd (2005) 223 CLR 189 ................................................................ 21.520 Powell v Lee (1908) 99 LT 284 ............................. 3.290 Prepaid Services Pty Ltd v Atradius Credit Insurance NV (2014) 18 ANZ Insurance Cases 62-047; [2014] NSWCA 440 ................ 25.370 Preston v AIA Australia Ltd (2014) 18 ANZ Insurance Cases 62-018; [2014] NSWCA 165 ............................................................... 25.1145 Pretorius v Daltons Carpet Tiles Pty Ltd (1984) 1 FCR 346 .......................................... 31.710 Price v Southern Cross Television (TNT9) Pty Ltd [2015] Aust Torts Reports 82-208; [2014] TASSC 70 ............................................. 4.145 Prime Start Ltd v Maher Forest Products Ltd 442 F Supp 2d 1113 (WD Wash 2006) ............. 15.30 Prince Alfred College Incorporated v ADC [2016] HCA 37 .............................................. 28.845 Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 .............. 11.180, 11.240, 22.840 Proprietary Articles Trade Association v Attorney General for Canada [1931] AC 310 .................................................................. 32.20 Proprietors – Strata Plan No 14198, The v Cowell (1991) 24 NSWLR 478 ...................... 28.770 Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd (2015) 18 BPR 35511; [2015] NSWCA 16 ............................. 11.250 Proudman v Dayman (1941) 67 CLR 536 .......... 32.400 Public Service Employees Credit Union Co-operative Ltd v Campion (1984) 56 ACTR 39 ......................................................... 8.240 Public Trustee v Taylor [1978] VR 289 ................. 7.500 Puels v Exelerate Funding Pty Ltd (2005) 214 ALR 616 ........................................................ 31.215 Pukallus v Cameron (1982) 180 CLR 447 ............ 7.440 Pullen v Gutteridge Haskins & Davey Pty Ltd [1993] 1 VR 27 .............................................. 28.380 Pye Industries Sales Pty Ltd v Trade Practices Commission [1979] ATPR 40-124 .................. 18.410

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Australian Commercial Law

P’Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42 ............ 3.220, 13.440

Q Qualcast (Wolverhampton) Ltd v Haynes [1959] AC 743 ............................................... 28.500 Queensland v Congoo (2015) 256 CLR 239 .... 22.1010, 22.1020 Queensland Aggregates Pty Ltd v Trade Practices Commission (1981) 38 ALR 217 ..... 18.330 Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 ........................................... 31.530, 31.540 Queensland Co-operative Milling Association Ltd, Re (1976) 8 ALR 481 ................ 18.480, 18.490 Queensland Wire Industries Pty Ltd v Broken Hill Pty Co Ltd (1989) 167 CLR 177 ............ 18.180, 18.190, 18.270, 18.480 Quinlivan v Australian Competition and Consumer Commission (2004) 160 FCR 1 .... 17.450, 17.850

R R v Bezzina [1994] 1 WLR 1057 ........................ 32.390 R v Clarke (1927) 40 CLR 227 ............................. 3.170 R v English (1993) 10 WAR 355 ......................... 32.350 R v Falconer (1990) 171 CLR 30 ........... 32.360, 32.370 R v Hannes (2002) 173 FLR 1 ............................ 27.796 R v Hawkins (1989) 45 A Crim R 430 ............... 32.500, 32.510 R v JS (2007) 230 FLR 276 .................................. 1.540 R v K (2003) 59 NSWLR 431 ............................. 32.320 R v Kidman (1915) 20 CLR 425 ......................... 32.170 R v Nuttall [2011] 1 Qd R 270 .............. 32.460, 32.470 R v Regos (1947) 74 CLR 613 .............................. 1.420 R v Rivkin (2004) 59 NSWLR 284 ..................... 27.797 R v Selim [2007] NSWSC 322 ............................ 16.270 R v Sparrow [1990] 1 SCR 1075 ...................... 22.1020 R v XY (2013) 84 NSWLR 363 ............................ 1.540 R Leslie Ltd v Sheill [1914] 3 KB 607 ................... 6.140 RA & A Bailey & Co Ltd v Boccaccio Pty Ltd (1986) 4 NSWLR 701 .................................... 30.530 RCA Corp v John Fairfax & Sons (1981) 34 ALR 345 ........................................................ 30.450 RE Jones Ltd v Waring & Gillow Ltd [1926] AC 670 .......................................................... 23.250 RJ Mabarrack Pty Ltd v King (1971) 1 SASR 313 ................................................................ 13.430 RJE v Secretary to the Department of Justice (2008) 21 VR 526 ............................................ 1.540 RLA Polymers Pty Ltd v Nexus Adhesives Pty Ltd (2011) 280 ALR 125 .............................. 30.2740 RV Ward Ltd v Bignall [1967] 1 QB 534 ............ 14.930 Raben Footwear Pty Ltd v Polygram Records Inc (1997) 75 FCR 88 ....................... 30.580, 30.990 Radaich v Smith (1959) 101 CLR 209 ................ 22.740 Rafferty v Madgwicks (2012) 203 FCR 1 ......... 30.2790 Ramsgate Victoria Hotel Co v Montefiore (1866) LR 1 Ex 109 ......................................... 3.210

Ranoa Pty Ltd v BP Oil Distribution Ltd (1989) 91 ALR 251 ...................................... 30.2770 Rasmussen & Russo Pty Ltd v Gaviglio [1982] Qd R 571 ........................................... 13.420 Reardon v Morley Ford Pty Ltd (1980) 33 ALR 417 ........................................................ 17.540 Reckitt Benckiser (Australia) Pty Ltd v Procter & Gamble Australia Pty Ltd [2015] FCA 753 ................................................................ 17.720 Red Bull Australia Pty Ltd v Sydneywide Distributors Pty Ltd (2001) 53 IPR 481 ....... 30.2570 Redgrave v Hurd (1881) 20 Ch D 1 ...................... 7.600 Reed Constructions Pty Ltd v Eire Contractors Pty Ltd [2009] NSWSC 678 ...... 16.110, 16.120, 16.240 Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 14 BCL 91 ................. 3.190 Reference by Australasian Performing Right Assoc Ltd; Re Australian Broadcasting Corp (1985) 5 IPR 449 .................................. 30.800 Regal (Hastings) Ltd v Gulliver [1967] 2 AC 134 ................................................................ 13.340 Regazzoni v KC Sethia (1944) Ltd [1958] AC 301 .................................................................. 8.310 Regent v Millett (1976) 133 CLR 679 .................. 5.390 Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 .................................................................... 9.20 Renehan v Leeuwin Ocean Adventure Foundation Ltd (No 3) (2006) 17 NTLR 83 ................................................................... 11.480 Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486 ....................................................... 9.170 Review Australia Pty Ltd v Innovative Lifestyle Investments Pty Ltd (2008) 166 FCR 358 ...................................................... 30.1670 Rhone-Poulenc Agrochimie SA v UIM Chemical Services Pty Ltd (1986) 12 FCR 477 ................................................................ 17.130 Richardson v Commercial Banking Co of Sydney Ltd (1952) 85 CLR 110 ..................... 31.530 Riches v Hogben [1986] 1 Qd R 315 ........... 4.80, 5.250 Richmond v Moore Stephens Adelaide Pty Ltd [2015] SASCFC 147 ......................................... 12.50 Rick Cobby Haulage Pty Ltd v Simsmetal Pty Ltd (1986) 43 SASR 533 ................................ 21.170 Riley v Osborne [1986] VR 193 ............................ 5.370 Ringrow Pty Ltd v BP Australia (2005) 224 CLR 656 ........................................................ 12.330 Rinsale Pty Ltd v Australian Broadcasting Commission [1993] Aust Torts Reports 81-231 ........................................................... 28.670 Risk (“Larrakia”) v Northern Territory [2006] FCA 404 .............................. 22.980, 22.1010 Roads and Traffic Authority (NSW) v Dederer (2007) 234 CLR 330 ...................................... 28.170 Roadshow Films Pty Ltd v iiNet Ltd (2012) 248 CLR 42 .......... 16.590, 16.600, 30.750, 30.1260 Robb v Green [1895] 2 QB 315 ............... 8.400, 13.330

Table of Cases

Robert J Zupanovich Pty Ltd v B & N Beale Nominees Pty Ltd (1995) 59 FCR 49 ........... 30.1160 Robertson, Re (1943) 44 SR (NSW) 103 ............ 22.420 Robertson, Re (1975) 10 SASR 189 .................... 29.290 Robinson v Davison (1871) LR 6 Ex 269 ........... 11.340 Robinson v Harman (1848) 1 Ex 850; 154 ER 363 ............................................................. 12.90 Robinson Motors Pty Ltd v Fowler [1982] Qd R 374 ....................................................... 14.750 Rocky Castle Finance Pty Ltd v Taylor (2014) 118 SASR 349 .............................................. 23.1060 Roder Zelt-Und Hallenkonstruktionen GmbH v Rosedown Park Pty Ltd (1995) 57 FCR 216 ..................................................... 15.40, 15.280 Rogers v Whitaker (1992) 175 CLR 479 ............ 28.120 Rolfe Lubell & Co (a firm) v Keith [1979] 1 All ER 860 ........................................ 23.330, 23.340 Romeo v Conservation Commission of the Northern Territory (1998) 192 CLR 431 ...... 28.170, 28.400 Rondo Building Services Pty Ltd v Casaron Pty Ltd [2003] 2 Qd R 558 ............................ 14.570 Roots v Oentory Pty Ltd [1983] 2 Qd R 745 ...... 13.590 Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445 ................................................. 4.190 Rosenberg v Percival (2001) 205 CLR 434 ......... 28.500 Rosenhain v Commonwealth Bank of Australia (1922) 31 CLR 46 ............................. 23.90 Roser Technologies Inc v Carl Schreiber GmbH 2013 WL 4852314 (WD Pa 2013) ...... 15.50, 15.60, 15.90 Ross v The Queen [2014] NZCA 272 ................... 33.20 Rowe v McCartney [1976] 2 NSWLR 72 ........... 28.540 Rowland v Divall [1923] 2 KB 500 ...... 14.230, 14.1030 Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 ................ 12.470 Royal Globe Life Assurance Co Ltd v Kovacevic (1979) 22 SASR 78 ........................ 13.610 Rubibi Community v Western Australia (No 7) [2006] FCA 459 .......................... 22.980, 22.1010 Ruddock v Taylor (2005) 222 CLR 612 ............. 28.650 Rural Press Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 53 .......................................... 18.80, 18.100, 18.290 Russo v Belcar Pty Ltd (2011) 111 SASR 459 .... 14.205, 14.400 Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116 .................. 12.380 Rylands v Fletcher (1868) LR 3 HL 330 ............. 28.780 Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 .................................................... 7.430

S SH Lock (Aust) Ltd v Kennedy (1988) 12 NSWLR 482 .................................................. 7.1040 SJ Mackie Pty Ltd v Dalziell Medical Practice Pty Ltd [1989] 2 Qd R 87 .............................. 26.490 SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516 .............. 8.610, 18.350, 18.670

SW Hart & Co Pty Ltd v Edwards Hot Water Systems (1985) 159 CLR 466 ......................... 30.320 SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 ........................................ 1.540 Sabate USA Inc v Chateau des Charmes Wines Ltd 540 US 1049 (2003) ................................ 15.130 Sabemo Pty Ltd v De Groot (1991) 8 BCL 132 ................................................................ 20.180 Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 ....................... 12.560 Sablebrook Pty Ltd v Credit Union Australia Ltd [2008] QSC 242 ...................................... 22.630 Sachs v Miklos [1948] 2 KB 23 ........................... 13.160 St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267 ..................................... 8.20, 8.150 Saleeba v Wilke [2007] QSC 298 ........................ 22.430 Saleh v Romanous (2010) 79 NSWLR 453 ............. 9.70 Salomon v Salomon & Co Ltd [1897] AC 22 ........ 27.50 Sambo v Western Australia [2009] FCA 940 ....... 22.990 Sampi v Western Australia [2005] FCA 777 ........ 22.980 Sampi v Western Australia (No 2) (2010) 266 ALR 537 ........................................................ 22.980 Sampi v Western Australia (No 2) (“Bardi Jawi – Brue Reef”) (2005) 224 ALR 358 ...... 22.1010 Samsung: Samsung Electronics Co Ltd v Apple Inc (2011) 217 FCR 238 .................... 30.2125 San Lucio Srl v Import & Storage Services LLC 2009 WL 1010981 (DNJ 2009) ............. 15.430 San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 ........................... 7.730, 28.280, 28.300, 28.310 Sandell v Porter (1966) 115 CLR 666 ................. 31.520 Sanders v Snell (1998) 196 CLR 329 .................... 10.80 Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 ................................................. 11.120 Sanrod Pty Ltd v Dainford Ltd (1984) 54 ALR 179 ........................................................ 17.910 Saunders v Anglia Building Society [1971] AC 1004 ..................................................... 7.300, 7.310 Saunders v Vautier (1841) 4 Beav 115; 49 ER 282 ................................................................ 29.710 Scaffidi v Montevento Holdings Pty Ltd (2011) 6 ASTLR 446; [2011] WASCA 146 ..... 29.390 Scandanavian Tobacco Group Eersel BV v Trojan Trading Company Pty Ltd [2016] FCAFC 91 .................................................... 30.2423 Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 ........................................ 11.450 Scarborough v Sturzaker (1905) 1 Tas LR 117 ........ 6.40 Schmitz-Werke GmbH & Co v Rockland Indus Inc 37 Fed Appx 687 (4th Cir 2002) ...... 15.60 Schneider Electric (Australia) Pty Ltd v Australian Competition and Consumer Commission (2003) 127 FCR 170 ................. 18.530 Schuller v SJ Webb Nominees Pty Ltd [2015] SASCFC 162 .................................................. 28.570 Schultz v Bank of Queensland Ltd [2015] QCA 208 ......................................................... 7.950

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Scolio Pty Ltd v Cote (1992) 6 WAR 475 ............. 7.760, 8.250, 8.260 Scott v Coulson [1903] 2 Ch 249 ............................ 7.80 Scott v Littledale (1858) 8 El & Bl 815; 120 ER 304 ............................................................. 7.140 Scott v Scott (1904) 25 ALT 174 ........................... 8.350 Scott v Scott (1963) 109 CLR 649 ...................... 29.440 Scrase v Jarvis [2000] 2 Qd R 92 ........................ 28.120 Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 ................................. 1.370 Seafolly Pty Ltd v Fewstone Pty Ltd (2014) 313 ALR 41 ................................................. 30.1760 Secton Pty Ltd (t/a BWN Industries) v Delawood Pty Ltd (1991) 21 IPR 136 .......... 30.2720 Seddon v North Eastern Salt Co Ltd [1905] 1 Ch 326 ............................................................. 7.630 Sedleigh-Denfield v O’Callaghan [1940] AC 880 ................................................................ 28.770 Segenhoe Ltd v Atkins (1990) 29 NSWLR 569 ................................................................ 28.320 Seidler v Schallhofer [1982] 2 NSWLR 80 ............ 8.210 Selected Seeds Pty Ltd v QBEMM Pty Ltd (2010) 242 CLR 336 ...................................... 25.555 Selim v Lele (2008) 167 FCR 61 ........................... 1.540 Sellars v Adelaide Petroleum NL (1994) 179 CLR 332 ........................................................ 17.820 Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 .......................................... 1.360 Sgro v Australian Associated Motor Insurers Ltd (2015) 299 FLR 92 .................................. 25.710 Shacklady v Atkins (1994) 30 IPR 387 ............. 30.1750 Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 ....... 7.720, 7.730, 28.280, 28.290 Sharman v Kunert (1985) 1 NSWLR 225 ........... 7.1020 Shaw v Galt (1864) 16 Ir CL Rep 357 .................. 26.80 Shaw v Thomas [2010] Aust Torts Reports 82-065; [2010] NSWCA 169 ......................... 28.400 Shaw v Wolf (1998) 83 FCR 113 ........................ 22.980 Sheather v Staples Waste Removals Pty Limited (No 2) [2014] FCA 84 ....................... 16.365 Shell Co of Australia Ltd v Esso Standard Oil (Aust) Ltd (1963) 109 CLR 407 ................... 30.2400 Shelley v Paddock [1980] QB 348 ......................... 8.570 Shevill v Builders Licensing Board (1982) 149 CLR 620 .............................. 11.220, 11.260, 22.840 Shiels v Drysdale (1880) 6 VLR 126 ....................... 5.90 Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 .............................................. 9.260 Shoeys Pty Ltd v Allen [1991] Aust Torts Reports 81-104 .............................................. 28.120 Shortall v White [2007] NSWCA 372 ..................... 4.50 Shuttle Packaging Systems LLC v Jacob Tsonakis, INA SA 2001 US Dist LEXIS 21630 (WD Mich 2001) ................... 15.130, 15.350 Sidhu v Van Dyke (2014) 251 CLR 505 ................ 5.280 Sidney Raper Pty Ltd v Commonwealth Trading Bank of Australia [1975] 2 NSWLR 227 .................................................. 24.810 Siemens Ltd v Schenker International (Australia) Pty Ltd (2004) 216 CLR 418 ........ 21.510

Silk Bros Interstate Traders Pty Ltd v Security Pacific National Bank (1989) 16 NSWLR 446 ................................................................ 23.950 Silvia v Thomson (1989) 87 ALR 695 ................. 31.430 Simpson Ltd v Hubbards Pty Ltd (1982) 44 ALR 695 ........................................................ 18.610 Singapore Airlines Ltd v Taprobane Tours WA Pty Ltd (1991) 33 FCR 158 .............. 18.270, 18.280 Singtel Optus Pty Ltd v Australian Competition and Consumer Commission (2012) 287 ALR 249 ......................... 17.710, 17.712 Siu Yin Kwan (Administratrix of the Estate of Chan Ying Lung, Decd) v Eastern Insurance Co Ltd [1994] 2 AC 199 ................ 13.550 Slee v Warke (1949) 86 CLR 271 .......................... 7.410 Smallmon v Transport Sales Ltd [2012] 2 NZLR 109 .......................................... 15.60, 15.155 Smilevska v Smilevska (No 2) [2016] NSWSC 397 ....................................................... 4.70, 22.490 Smith v Anderson (1880) 15 Ch D 247 ................. 26.30 Smith v Hughes (1871) LR 6 QB 597 ................... 7.160 Smith v Land and House Property Corp (1884) 28 Ch D 7 ............................................. 7.500 Smith v The Queen (1994) 181 CLR 338 .............. 1.420 Snyman v Cooper (1990) 25 FCR 470 ................ 17.670 Solahart Industries Pty Ltd v Solar Shop Pty Ltd (2011) 281 ALR 544 ................................ 17.120 Soltykoff, Re; Ex parte Margrett [1891] 1 QB 413 ..................................................... 6.130, 23.370 Sons of Gwalia Ltd v Margaretic (2007) 231 CLR 160 ...................................................... 27.1340 Sony Entertainment (Australia) Ltd v Smith (2005) 64 IPR 18 ......................................... 30.1220 Sopov v Kane Constructions Pty Ltd (2007) 20 VR 127 ..................................................... 11.190 Souter v Shyamba Pty Ltd (2002) 11 BPR 20,369 ............................................................. 4.170 South Australian Railways Commissioner v Egan (1973) 130 CLR 506 ............................... 7.870 South Staffordshire Water Co v Sharman [1896] 2 QB 44 ................................. 22.110, 22.120 Southern Goldfields Ltd v General Credits Ltd (1991) 4 WAR 138 ......................................... 22.630 Spar Licensing Pty Ltd v Mis Qld Pty Ltd (2014) 314 ALR 35 ...................................... 30.2790 Specht v Netscape Communications Corp 306 F 3d 17 (2d Cir 2002) .................................... 16.190 Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205 .............................................. 1.360 Special Purposes of Income Tax, Commissioners for v Pemsel [1891] AC 531 ................................................................ 29.270 Spector v Ageda [1973] Ch 30 .............................. 8.590 Spencer v Harding (1870) LR 5 CP 561 .................. 3.60 Spencer Industries Pty Ltd v Collins (2003) 58 IPR 425 ........................................................ 30.2150 Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd (2009) 253 ALR 364 ........................................ 8.600 Spira v Commonwealth Bank of Australia (2003) 57 NSWLR 544 .................................. 17.230

Table of Cases

Spirit Pharmaceuticals Pty Ltd v Mundipharma Pty Ltd (2013) 216 FCR 344 .............................................................. 30.2040 Spong v Spong (1914) 18 CLR 544 ...................... 7.830 Stamp Duties, Commissioner of v Livingston (1964) 112 CLR 12 ........................................ 22.710 Standard Bent Glass Corp v Glassrobots OY 333 F 3d 440 (3d Cir 2003) ........................... 15.100 Stapley v Towing Masters Pty Ltd [2009] NSWCA 382 .................................................. 21.490 Star Express Merchandising Co Pty Ltd v VG McGrath Pty Ltd [1959] VR 443 ................... 21.270 State v Rayney (2013) 46 WAR 1 ........................ 32.315 State Revenue, Commissioner of v Challenger Listed Investments Ltd (2011) 34 VR 617 ........ 1.540 State Revenue, Commissioner of v Challenger Listed Investments Ltd [2012] HCATrans 352 .................................................................. 1.540 State Savings Bank of Victoria, Commissioners of v Permewan Wright & Co Ltd (1914) 19 CLR 457 ............... 24.170, 24.720 State of New South Wales v TD (2013) 83 NSWLR 566 .................................................. 28.650 State of Queensland v Kelly [2015] 1 Qd R 577 ................................................................ 28.170 State of South Australia v Lampard-Trevorrow (2010) 106 SASR 331 ................................................................ 28.170 Stealth Enterprises Pty Ltd v Calliden Insurance Ltd (2015) 300 FLR 81 .................. 25.250 Steele v Tardiani (1946) 72 CLR 386 .................. 12.560 Sterling Engineering Co Ltd v Patchett [1955] AC 534 ........................................................ 30.2150 Stevens v Brodribb Sawmilling Co Pty Ltd (1986) 160 CLR 16 .............. 28.810, 34.180, 34.190 Stoker v Picken (2012) 209 FCR 132 .................. 22.290 Stone Leaf Capital Pty Ltd v Daly [2014] NSWSC 477 ................................................... 22.500 Strange Investments (WA) Pty Ltd v Coretrack Ltd (2014) 107 IPR 102 ................................... 21.10 Strickland v Minister of Lands (WA) (1998) 85 FCR 303 ................................................. 22.1230 Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 ................................................... 1.110 Strickland v Western Australia (2015) 234 FCR 40 .......................................................... 22.990 Strong v Woolworths Limited (2012) 246 CLR 182 ........................................................ 28.500 Su v Commonwealth of Australia (2016) 307 FLR 357 ......................................................... 28.650 Summerton v SGIC Life Ltd (1999) 10 ANZ Insurance Cases 90-102 .................................. 25.310 Sumpter v Hedges [1898] 1 QB 673 .................... 12.560 Sunbird Plaza Pty Ltd v Maloney (1988) 166 CLR 245 .................................. 20.10, 20.30, 20.160 Suncoast Restoration Pty Ltd (in liq), Re (2013) 211 FCR 203 ...................................... 29.650 Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 ............................................... 1.840

Sutherland Shire Council v Heyman (1985) 157 CLR 424 ....................... 28.350, 28.360, 28.370 Sutton & Co v Grey [1894] 1 QB 285 .................. 26.80 Svanosio v Macnamara (1956) 96 CLR 186 ......... 7.630 Sweeney v Boylan Nominees Pty Ltd (2006) 226 CLR 161 .................................... 28.810, 34.220 Swinton v China Mercantile Navigation Co Ltd (1951) 83 CLR 553 ................................. 28.410 Sydney Organising Committee for the Olympic Games v Clarke (1998) 41 IPR 403 ............................................................... 30.1110 Symes v Laurie [1985] 2 Qd R 547 ....................... 14.30 Symes v Mahon [1922] SASR 447 ...................... 28.650

T TCN Channel Nine Pty Ltd v Network Ten Pty Ltd (No 2) (2005) 145 FCR 35 ................ 30.930 THC Holdings Pty Ltd v CMA Recycling Pty Ltd (2014) 101 ACSR 202 ............................. 14.535 TP Rich Investments Pty Ltd v Calderon [1964] NSWR 709 ......................................... 24.270 Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 .............. 12.90, 12.110 Tabet v Gett (2010) 240 CLR 537 ........... 1.540, 28.500 Taco Company of Australia Inc v Taco Bell Pty Ltd (1982) 42 ALR 177 ........................... 17.760 Talbot v General Television Corp Pty Ltd [1980] VR 224 .............................. 30.2700, 30.2740 Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 ............................................................ 11.80 Talmax Pty Ltd v Telstra Corporation Ltd [1997] 2 Qd R 444 ............................. 17.60, 17.820 Tame v New South Wales (2002) 211 CLR 317 ..................................................... 28.90, 28.190 Tanwar Enterprises Pty Ltd v Cauchi (2003) 217 CLR 315 ................................................. 22.680 Taubmans Pty Ltd v Loakes [1991] 2 Qd R 109 ................................................................ 20.180 Taxation, Commissioners of v English Scottish and Australian Bank Ltd [1920] AC 683 .......................................................... 24.720 Taxation, Federal Commissioner of v Unit Trend Services Pty Ltd (2013) 250 CLR 523 .................................................................. 1.410 Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309 ........................................................... 11.350 Taylor v Johnson (1983) 151 CLR 422 ..... 7.170, 7.180, 7.190, 7.360 Taylor v The Owners–Strata Plan No 11564 (2014) 253 CLR 531 ........................................ 1.360 Taylor, Re; Ex parte Century 21 Real Estate Corp (1995) 130 ALR 723 ............................... 20.30 Tebb v Filsee Pty Ltd (2010) 30 VR 473 ............. 20.180 TeeVee Toons Inc v Gerhard Schubert GmbH 2006 WL 2463537 (SD NY 2006) .... 15.110, 15.120, 15.400 Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 .................................................................. 4.120

xxxvii

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Australian Commercial Law

Telstra Corporation Ltd v Hurstville City Council (2000) 105 FCR 322 ........................... 1.370 Telstra Corporation Ltd v Phone Directories Co Pty Ltd (2010) 194 FCR 142 .................... 30.140 Tempest v Lord Camoys (1882) 21 Ch D 571 ..... 29.490 Tepko Pty Ltd v Water Board (2001) 206 CLR 1 ............................................................ 28.280 The River Steamer Co, Mitchell’s Claim, Re (1871) LR 6 Ch App 822 ............................... 12.420 Theeman v Forte Properties Pty Ltd [1973] 1 NSWLR 418 ..................................... 21.570, 21.590 Thomas v Ranford (1922) 24 WALR 137 ........... 22.270 Thomas v Todd [1926] 2 KB 511 ...................... 27.1150 Thomas Australia Wholesale Vehicle Trading Co Pty Ltd v Marac Finance Australia Ltd (1985) 3 NSWLR 452 .................................... 14.660 Thomas National Transport (Melbourne) Pty Ltd v May & Baker (Aust) Pty Ltd (1966) 115 CLR 353 ................................................. 21.220 Thompson v Henderson & Partners Pty Ltd (1990) 58 SASR 548 ...................................... 13.590 Thompson v Woolworths (Qld) Pty Ltd (2005) 221 CLR 234 ...................................... 28.120 Thorby v Goldberg (1964) 112 CLR 597 ................ 9.20 Thorn Airfield Lighting Pty Ltd v W [2012] TASWRCT 11 .................................................. 16.80 Thorne Developments Pty Ltd v Thorne [2016] QCA 63 .............................................. 29.690 Thornett & Fehr v Beers & Son [1919] 1 KB 486 ................................................................ 14.285 Thornley v Tilley (1925) 36 CLR 1 ....................... 9.300 Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 ............................................................ 9.370 Thorp v CA Imports Pty Ltd (1989) 16 IPR 511 ................................................................. 17.690 Thusi Pty Ltd v Neonbrook Pty Ltd [1999] 1 Qd R 429 ....................................................... 24.200 Tiep Thi To v Australian Associated Motor Insurers Ltd (2001) 3 VR 279 ........................ 25.710 Tina Motors Pty Ltd v Australia and New Zealand Banking Group Ltd [1977] VR 205 ................................................... 24.640, 24.650 Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 .............. 5.340, 7.430, 7.470, 20.30 Toby Constructions Products Pty Ltd v Computer Bar Sales Pty Ltd [1983] 2 NSWLR 48 ...................................................... 14.30 Todrell Pty Ltd v Finch (No 1) [2008] 1 Qd R 540 .................................................................. 5.330 Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 .................... 9.20, 9.330, 9.340 Tolmark Homes Pty Ltd v Paul (1999) 46 IPR 321 ............................................................... 30.1130 Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 1 WLR 761 .................. 5.230 Total Oil Products (Aust) Pty Ltd v Robinson [1970] 1 NSWR 701 ........................................ 20.30 Tottenham Investments Pty Ltd v Carburettor Services Pty Ltd [1994] Aust Torts Reports 81-292 ............................................................. 21.80

Tournier v National Provincial and Union Bank of England [1924] 1 KB 461 ................... 24.40 Tower Cabinet Co Ltd v Ingram [1949] 2 KB 397 ................................................................ 26.420 Toyota Finance Australia Ltd v Dennis (2002) 58 NSWLR 101 ............................................. 21.370 Trade Practices Commission v CSR Ltd [1991] ATPR 41-076 ...................................... 18.530 Trade Practices Commission v Dunlop Australia Pty Ltd (1980) 30 ALR 469 ............ 18.420 Trade Practices Commission v Orlane Australia Pty Ltd (1984) 1 FCR 157 .............. 18.430 Trade Practices Commission v TNT Australia Pty Ltd [1995] ATPR 41-375 .......................... 18.560 Trade Practices Commission v Tubemakers of Australia Ltd (1983) 47 ALR 719; [1983] ATPR 40-390 ................................................... 18.70 Traderight (NSW) Pty Ltd v Bank of Queensland Ltd [2015] NSWCA 94 ............. 30.2800 Transport Tyre Sales Pty Ltd v Montana Tyres Rims and Tubes Pty Ltd (1999) 93 FCR 421 .............................................................. 30.2420 Transport Workers’ Union of Australia v Qantas Airways Limited (2012) 225 IR 13 .... 34.440, 34.470 Travelers Property Casualty Co of America v Saint-Gobain Technical Fabrics Canada Ltd 474 F Supp 2d 1075 (D Minn 2007) ......... 15.50 Trego v Hunt [1896] AC 7 .................................. 26.320 Treibacher Industrie AG v Allegheny Technologies Inc 464 F 3d 1235 (11th Cir 2006) ............................................................. 15.140 Trevey v Grubb (1982) 44 ALR 20 ....................... 4.100 Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 ....... 1.540, 10.50, 10.60, 10.70 Triplex Safety Glass Co Ltd v Scorah (1938) 55 RPC 21 ................................................... 30.2150 Trustees of the Property of Cummins v Cummins (2006) 227 CLR 278 ......... 29.180, 31.500 Truth About Motorways Pty Ltd v Macquarie Infrastructure Investment Management Ltd (2000) 200 CLR 591 ...................................... 17.730 Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93 ................................................. 11.470 Turnbull v Wightman (1945) 45 SR (NSW) 369 ................................................................ 13.430 Turner v Bladin (1951) 82 CLR 463 ................... 12.390 Turner v Morlend Finance Corp (Vic) Pty Ltd [1990] ASC 56-006 .......................................... 1.360 Turner v Queensland Motels Pty Ltd [1968] Qd R 189 ....................................................... 21.550 Tutt v Doyle (1997) 42 NSWLR 10 ...................... 7.460 Twentieth Century Fox Film Corp v South Australian Brewing Co Ltd (1996) 66 FCR 451; 34 IPR 247 ........................................... 30.2630 Twenty-first Maylux Pty Ltd v Mercantile Mutual Insurance (Australia) Ltd [1990] VR 919 ............................................. 25.160, 25.270 Twidale v Bradley [1990] 2 Qd R 464 ................ 28.380

Table of Cases

Tyndall Life Insurance Co Ltd v Chisholm (2000) 11 ANZ Insurance Cases 90-104 ........ 25.420

U Ultramares Corp v Touche 255 NY 170; 174 NE 441 (1931) ............................................... 28.200 Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 ..................................... 7.800 United Dominions Corp Ltd v Brian Pty Ltd (1985) 157 CLR 1 .......................................... 26.260 United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 ...................................................... 9.90 Unity Insurance Brokers Pty Ltd v Rocco Pezzano Pty Ltd (1998) 192 CLR 603 ......... 25.1030, 25.1040 Universal Guarantee Pty Ltd v National Bank of Australasia Ltd [1965] 1 WLR 691 ............ 24.790 Universal Music Australia Pty Ltd v Australian Competition and Consumer Commission (2003) 131 FCR 529 ................ 18.240, 18.325, 18.530 Universal Music Australia Pty Ltd v Sharman License Holdings Ltd (2005) 220 ALR 1 ........ 16.590 Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 ............................ 7.790 University of London Press Ltd v University Tutorial Press [1916] 2 Ch 601 ............. 30.80, 30.90 University of New South Wales v Moorhouse (1975) 133 CLR 1 ............................. 30.430, 30.440 University of Western Australia v Gray (2009) 179 FCR 346 ................................ 30.2150, 30.2160 Upfill v Wright [1911] 1 KB 506 ........................... 8.200 Uranium Equities Ltd v Fewster (2008) 36 WAR 97 ............................................................. 9.20 Usinor Industeel v Leeco Steel Products Inc 209 F Supp 2d 880 (ND Ill 2002) ......... 15.40, 15.60

V VLM Food Trading International Inc v Illinois Trading Co 811 F 3d 247 (7th Cir 2016) ........ 15.90, 15.130, 15.400 Vabu Pty Ltd v Federal Commissioner of Taxation (1996) 81 IR 150 ............................ 34.210 Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 ........................................ 20.60 Vairy v Wyong Shire Council (2005) 223 CLR 422 ................................................................ 28.170 Valamios v Demarco (2005) 63 NSWLR 191 ..... 24.220, 24.510 Vale v Sutherland (2009) 237 CLR 638 .............. 31.470 Vallance v R (1961) 108 CLR 56 ........................ 32.190 Van Den Esschert v Chappell [1960] WAR 114 ..................................................................... 9.60 Van Son v Forestry Commission of New South Wales (1995) 86 LGERA 108 ............... 28.770 Van der Lely NV v Bamfords Ltd [1963] RPC 61 ................................................................ 30.1890

Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70 ..................... 10.40 Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd (2015) 47 WAR 547 ................... 7.450, 9.20 Varley v Whipp [1900] 1 QB 513 ........................ 14.240 Vassallo v Haddad Import & Export Pty Ltd (2004) 2 DCLR (NSW) 123 ........................... 14.690 Vawdrey Australia Pty Ltd v Kreuger Transport Equipment Pty Ltd (2009) 261 ALR 269 ........................................................ 30.350 Vella v Permanent Mortgages Pty Ltd (2008) 13 BPR 25,343; [2008] NSWSC 505 ............. 24.670 Venning v Chin (1974) 10 SASR 299 .................. 28.610 Vero Insurance Ltd v Rail Corporation (NSW) (2013) 65 MVR 391; [2013] NSWCA 372 .... 25.760 Victoria v Commonwealth (1996) 187 CLR 416 .................................................................. 1.140 Victoria University of Technology v Wilson (2004) 60 IPR 392 ....................................... 30.2150 Victorian Alps Wine Co Pty Ltd v All Saints Estate Pty Ltd (2012) 34 VR 397 ................... 14.390 Videon v Barry Burroughs Pty Ltd (1981) 37 ALR 365 ........................................................ 17.420 Vignoli v Sydney Harbour Casino [2000] Aust Torts Reports 81-541 ..................................... 28.650 Vimig Pty Ltd v Contract Tooling Pty Ltd (1986) 9 NSWLR 731 ...................................... 7.630 Vinden v Hughes [1905] 1 KB 795 ...................... 24.140 Vision Systems Inc v EMC Corporation 2005 WL 705107 (Mass Super 2005) ..................... 15.120 Visy Paper Pty Ltd v Australian Competition and Consumer Commission (2003) 216 CLR 1 ................................................. 18.90, 18.320 Vita Pacific Ltd v Heather (2001) 10 Tas R 334 .................................................................. 9.280 Vivo International Corpn Pty Ltd v TiVo Inc (2012) 294 ALR 661 .................................... 30.2365 Von Braun v Australian Associated Motor Insurers Ltd (1999) 10 ANZ Insurance Cases 61-419 ................................................. 25.380 Voss v Suncorp-Metway Ltd (No 2) [2004] 1 Qd R 214 ............................. 24.780, 24.900, 24.910

W WEA International Inc v Hanimex Corp Ltd (1987) 17 FCR 274 ........................................ 30.450 WGH Nominees Pty Ltd v Tomblin (1985) 39 SASR 117 ....................................................... 21.130 WL Thompson Ltd v Robinson (Gunmakers) Ltd [1955] Ch 177 ......................................... 14.980 Wakefield Trucks Pty Ltd v Lach Transport Pty Ltd (2001) 79 SASR 517 .......................... 17.800 Wakim, Re; Ex parte McNally (1999) 198 CLR 511 .......................................................... 1.710 Walden Properties Ltd v Beaver Properties Pty Ltd [1973] 2 NSWLR 815 ............................. 13.330 Walker v European Electronics Pty Ltd (1990) 23 NSWLR 1 ................................................. 26.440

xxxix

xl

Australian Commercial Law

Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 .......................................................... 1.540 Wallaby Grip Ltd v QBE Insurance (Australia) Ltd (2010) 240 CLR 444 .............. 25.510 Waller v James (2006) 226 CLR 136 ....... 28.80, 28.100 Wallera Pty Ltd v CGM Investments Pty Ltd [2003] FCAFC 279 ........................................ 11.250 Walley v Western Australia (1996) 67 FCR 366 .............................................................. 22.1230 Wallis v Downard-Pickford (North Queensland) Pty Ltd (1994) 179 CLR 388 .... 17.1140, 21.480 Wallis, Son & Wells v Pratt & Haynes [1911] AC 394 ............................................... 9.450, 14.400 Wallis Nominees (Computing) Pty Ltd v Pickett (2013) 45 VR 657 ..................... 8.400, 8.610 Walplan Pty Ltd v Wallace (1985) 8 FCR 27 ....... 17.540 Walsh v Deputy Commissioner of Taxation (1984) 156 CLR 337 ...................................... 31.250 Walsh v Doyle [2015] WASC 96 ......................... 22.630 Walsh v Lonsdale (1882) 21 Ch D 9 ................... 22.700 Walsh, Spriggs, Nolan and Finney v Hoag & Bosch Pty Ltd [1977] VR 178 ........... 24.240, 24.250 Walton Stores Ltd v Sydney City Council (1968) 88 WN (NSW) (Pt 2) 153 ..................... 21.40 Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 .................. 5.260, 5.270, 5.280 Wang v Rong [2015] NSWSC 1419 .................... 26.220 Ward v State of Queensland [2004] 1 Qd R 429 ................................................................ 19.390 Ward v State of Western Australia (No 3) (2015) 233 FCR 1 ........................................ 22.1010 Ward-Miller v Perpetual Trustees Australia Ltd [2001] ASC 155-046 ................................ 19.580 Wardar’s (Import & Export) Co Ltd v W Norwood & Sons Ltd [1968] 2 QB 663 ......... 14.520 Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 .................................. 3.320 Wardley Australia Ltd v Western Australia (1992) 175 CLR 514 ...................................... 17.860 Warman International v Envirotech Australia Pty Ltd (1986) 11 FCR 478 .......................... 30.2700 Warner Bros Pictures Inc v Ingolia [1965] NSWR 988 .................................................... 12.400 Warner Bros Pictures Inc v Nelson [1937] 1 KB 209 ........................................................... 12.400 Watson v Delaney (1991) 22 NSWLR 358 ............ 5.380 Watt v Hertfordshire CC [1954] 1 WLR 835 ..... 28.430, 28.460 Watt v State Bank of New South Wales Ltd [2003] ACTCA 7 .............................................. 7.950 Waugh v HB Clifford & Sons Ltd [1982] Ch 374 ................................................................ 13.260 Waverley Borough Council v Fletcher [1996] QB 334 ............................................. 22.130, 22.140 Wayde v NSW Rugby League Ltd (1985) 180 CLR 459 ........................................................ 27.410 Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] 2 Qd R 582 ........... 3.240

Weigall & Co v Runciman & Co (1916) 85 LJKB 1187 ..................................................... 13.580 Weld-Blundell v Stephens [1920] AC 956 ............ 13.380 Wellsmore v Ratford (1973) 23 FLR 295 ............ 22.340 West v AGC (Advances) Ltd (1986) 5 NSWLR 610 ..................................... 7.1030, 22.650 Western Australia v Brown (2014) 253 CLR 507 .............................................................. 22.1010 Western Australia v Njamal People (1996) 134 FLR 211 ................................................ 22.1230 Western Australia v Sebastian (“Rubibi”) (2008) 173 FCR 1 ........................... 22.980, 22.1010 Western Australia v Ward (2000) 99 FCR 316 .... 22.980 Western Australia v Ward (2002) 213 CLR 1 ..... 22.930, 22.960, 22.980, 22.1010, 22.1020 Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604 ...... 1.180 Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129 .................................................................. 8.160 Westpac Banking Corp v Robinson [2014] NSWSC 577 ................................................... 22.650 Westpac Banking Corp v Spice [1990] ATPR 41-024 ........................................................... 28.320 Westpac Banking Corp v State of Queensland [2016] FCA 269 ............................................. 22.680 Westpac Banking Corporation v Cockerill (1998) 152 ALR 267 ........................................ 7.770 Westpac Banking Corporation v Dixon [2011] FMCA 211 ..................................................... 16.130 Westrac Equipment Pty Ltd v Owners of the Ship Assets Venture (2002) 192 ALR 277 ....... 21.190 Wherry v KB Hutcherson Pty Ltd [1987] Aust Torts Reports 80-107 ..................................... 28.760 Wherry v Watson [1991] ASC 56-048 ................. 14.940 White v Baycorp Advantage Business Information Services Ltd (2006) 200 FLR 125 ................................................................ 13.550 White v Johnson (2015) 87 NSWLR 779 ............ 28.630 White v State of South Australia (2010) 106 SASR 521 ....................................................... 28.650 Whittle v Parnell Mogas Pty Ltd (2006) 94 SASR 421 ....................................................... 11.130 Wicks v State Rail Authority of New South Wales (2010) 241 CLR 60 ................................ 28.90 Wigan v Edwards (1973) 47 ALJR 586 ...... 5.100, 5.130 Wik Peoples v State of Queensland (1996) 187 CLR 1 ....................... 22.920, 22.1010, 22.1090 Wilhelmsen, Re; Ex parte Gould (1986) 11 FCR 107 ........................................................ 31.250 Wilkinson v Osborne (1915) 21 CLR 89 .............. 8.300 Williams v Barton [1927] 2 Ch 9 ........................ 29.440 Williams v Frayne (1937) 58 CLR 710 ............... 20.180 Williams v Linnitt [1951] 1 KB 565 .................... 21.550 Williams v Pisano (2015) 90 NSWLR 342 ............ 17.50 Williams v R (1986) 161 CLR 278 ..................... 32.260 Williams, Re; Ex parte Alberton Electrical Service Pty Ltd (1982) 43 ALR 552 ................ 31.240 Willis v Teparyl Pty Ltd (2010) 30 VR 485 ........ 20.170, 20.180

Table of Cases

Wilmink v Westpac Banking Corporation (2015) 318 ALR 572 ...................................... 23.450 Wilson v Anderson (2002) 213 CLR 401 ....................... Wilsons & Clyde Coal Co Ltd v English [1937] 3 All ER 628 ....................................... 34.380 Wimble, Sons & Co v Rosenberg & Sons [1913] 3 KB 743 ............................................ 14.820 Windsurfing International Inc v Petit (1983) 3 IPR 449 ......................................... 30.1890, 30.1910 Winkworth v Raven [1931] 1 KB 652 ................. 21.550 Winner v Ammar Holdings Pty Ltd (1993) 41 FCR 205 ...................................................... 30.1900 Witheyman v Simpson [2011] 1 Qd R 170 ............ 1.370 Wolley v Attorney-General (Vic) (1877) 2 App Cas 163 .......................................................... 22.330 Womboin Pty Ltd v Savannah Island Trading Pty Ltd (1990) 19 NSWLR 364 ....................... 20.90 Wong, Re; Ex parte Kitson (1979) 38 FLR 207 ................................................................ 31.230 Woods v Multi-Sport Holding Pty Ltd (2002) 208 CLR 460 ................................................. 28.440 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 2016 CLR 515 ....................... 28.220 Woolcock Street Investments Pty Ltd v CDG Pty Ltd (2004) 216 CLR 515 ........... 28.180, 28.220, 28.230, 28.370 Woolley v Dunford (1972) 3 SASR 243 ................ 10.80 Woolmington v Director of Public Prosecutions [1935] AC 462 ............................ 32.80 Workplace Safety Australia Pty Ltd v Simple OHS Solutions Pty Ltd (2015) 89 NSWLR 594 .............................................................. 30.2790 World Best Holdings v Sarker (2010) 14 BPR 27,549; [2010] NSWCA 24 ............................ 22.840 World Series Cricket Pty Ltd v Parish (1977) 16 ALR 181 ..................................................... 17.60 World of Technologies (Aust) Pty Ltd v Tempo (Aust) Pty Ltd (2007) 71 IPR 307 ..... 30.1600 Wratten v Hunter [1978] 2 NSWLR 367 ............ 29.310 Wren v Mahony (1972) 126 CLR 212 ................ 31.260 Wright v Gasweld Pty Ltd (1991) 22 NSWLR 317 .............................................................. 30.2750 Wright v Gibbons (1949) 78 CLR 313 ................ 22.420 Wright v Madden [1992] 1 Qd R 343 ............... 14.1110 Wyman v Paterson [1900] AC 271 ...................... 29.470 Wynbergen v Hoyts Corporation Pty Ltd (1997) 149 ALR 25 ........................................ 28.560 Wyong Shire Council v Shirt (1980) 146 CLR 40 .................................................................. 28.390

X X and Y (By Her Tutor X) v Pal (1991) 23 NSWLR 26 .................................................... 28.100

Xstrata Coal Queensland Pty Ltd v Mark Albury (Karingbal #2) [2012] NNTTA 93 .... 22.1230

Y Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 .......... 8.20, 8.50, 8.60 Yanner v Eaton (1999) 201 CLR 351 ............... 22.1020 Yeoman Credit Ltd v Latter [1961] 1 WLR 828 .................................................................. 20.30 Yerkey v Jones (1939) 63 CLR 649 ........... 7.930, 7.950, 20.50, 20.150 Yonge v Toynbee [1910] 1 KB 215 ......... 13.580, 13.750 York Street Mezzanine Pty Ltd (in liq), Re (2007) 162 FCR 358 .................................... 23.1060 Yorke v Lucas (1985) 158 CLR 661 ...... 17.830, 17.840 Yorke v Ross Lucas Pty Ltd (1982) 69 FLR 116 ................................................................. 17.840 Yorke v Ross Lucas Pty Ltd (1983) 68 FLR 268 ................................................................ 17.840 Yorkville Nominees Pty Ltd v Lissenden (1986) 160 CLR 476 ...................................... 25.340 Yorta Yorta Aboriginal Community v Victoria (2002) 214 CLR 422 ......................... 22.960, 22.980 Young v Odeon Music House Pty Ltd (1976) 10 ALR 153 ................................................. 30.1060 Youyang Pty Ltd v Minter Ellison Morris Fletcher (2003) 212 CLR 484 ........................ 29.430

Z Zachariadis v Allforks Australia Pty Ltd (2009) 26 VR 47 .............................................. 20.70 Zapata Hermanos Sucesores SA v Hearthside Baking Co Inc 313 F 3d 385 (7th Cir 2002) .................................................. 15.40, 15.400 Zapata Hermanos Sucesores SA v Hearthside Baking Co Inc 540 US 1068 (2003) .... 15.40, 15.400 Zeccola v Universal City Studios Inc (1982) 46 ALR 189 ................................................... 30.230 Zevering v Callaghan [2012] 1 Qd R 194 ........... 29.600 Zhang v VP302 SPV (2009) 223 FLR 213 .......... 13.260 Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 ................... 10.80, 10.90 Zuijs v Wirth Bros Pty Ltd (1955) 93 CLR 561 ...................................... 34.160, 34.170, 34.180 Zurich Australian Insurance Ltd v Contour Mobel Pty Ltd [1991] 2 VR 146 .................... 25.360 Zurich Australian Insurance Ltd v Metals & Minerals Pte Ltd (2009) 240 CLR 391 ........... 25.880

xli

Table of Statutes COMMONWEALTH Aboriginal Land Rights (Northern Territory) Act 1976: 22.890 Acts Interpretation Act 1901: 1.350, 1.360 s 3A(2): 1.220 s 15AA: 1.390, 1.410 s 15AB: 1.370 s 15AB(1): 1.370 s 15AB(2): 1.370 s 15AB(3): 1.370 s 15AD: 1.315 Anti-Money Laundering and Counter-Terrorism Financing Act 2006: 32.550 Australia Act 1986: 1.470 Australian Consumer Law: 7.680, 7.926, 7.960, 9.100, 9.290, 9.310, 14.10, 14.410, 15.20, 15.480, 17.10, 17.20, 17.30, 17.40, 17.50, 17.190, 17.200, 17.210, 17.290, 17.330, 17.375, 17.400, 17.430, 17.460, 17.600, 17.650, 17.660, 17.670, 17.713, 17.730, 17.780, 17.830, 17.870, 17.880, 17.900, 17.930, 17.940, 17.980, 17.1000, 17.1020, 17.1140, 17.1150, 17.1170, 17.1180, 17.1200, 17.1280, 17.1290, 17.1310, 17.1320, 17.1350, 17.1410, 17.1430, 20.250, 21.300, 24.40, 28.320, 30.2630, 30.2690, 30.2800, 33.30 s 2(1): 17.340, 17.830, 17.840, 17.850, 17.1010, 17.1020, 17.1140, 17.1200, 17.1280, 17.1320, 21.230, 21.300 s 3: 17.1150 s 3(1): 17.1020, 21.300 s 3(2): 17.1020, 21.300 s 3(3): 17.1020, 21.230 s 4(1): 17.450 s 7(1): 17.1210 s 9(1): 17.1190 s 9(2): 17.1190 s 9(3): 17.1190 s 9(4): 17.1190

s 10(1): 17.580 s 12BAA(7): 17.1430 s 18: 8.100, 13.590, 16.335, 16.340, 16.350, 16.360, 16.365, 17.40, 17.50, 17.60, 17.110, 17.130, 17.131, 17.133, 17.140, 17.150, 17.160, 17.170, 17.190, 17.372, 17.390, 17.395, 17.495, 17.660, 17.710, 17.711, 17.715, 17.740, 17.750, 17.760, 17.770, 17.820, 17.840, 17.850, 17.980, 17.990, 17.1430, 20.250, 24.40, 25.1020, 28.320, 30.2630, 30.2800 s 18(1): 7.680, 17.40, 17.55, 17.60, 17.80, 17.90, 17.100, 17.120, 17.132, 17.910 s 19: 17.190 s 19(2): 17.190 s 19(3): 17.190 s 20: 17.200, 17.210, 17.220, 17.230, 17.240 s 20(1): 17.210 s 20(2): 17.230 ss 20 to 22: 7.960, 17.660, 17.710 s 21: 17.200, 17.230, 17.240, 17.250 s 21(1): 17.240 s 21(2): 17.240 s 21(3)(a): 17.240 s 21(3)(b): 17.240 s 21(4)(a): 17.240 s 21(4)(b): 17.240 s 21(4)(c): 17.240 s 22: 17.200, 17.240, 30.2800 s 22(1): 17.240 s 22(2): 17.240 s 23(1): 17.290 s 23(1)(b): 17.320 s 23(2): 17.290 s 23(3): 17.290 s 23(4): 17.290 ss 23 to 27: 17.660, 17.1430 s 24(1): 17.300 s 24(2): 17.300 s 24(3): 17.300 s 24(4): 17.300 s 25(1): 17.310

s 26(1): 17.320 s 27(2): 17.320 s 29: 17.740 s 29(1): 7.680, 17.340, 17.711 s 29(1)(a): 17.132, 17.133, 17.390 s 29(1)(g): 16.360, 17.715 s 29(1)(h): 16.360 s 29(1)(i): 17.350, 17.370, 17.372 s 29(1)(k): 17.390, 17.395, 17.690 s 29(1)(m): 17.360, 17.375 s 30: 17.420 s 30(1): 7.680, 17.400 s 30(1)(f): 17.410 s 31: 17.470 s 32: 17.670 s 32(1): 17.480 s 33: 17.132, 17.490, 17.495, 17.713, 17.715 s 34: 17.500 s 35: 17.530, 17.540 s 36: 17.560, 17.670 s 37: 17.440 s 37(1): 17.430 s 37(2): 17.430 s 39(1): 17.570 ss 40(1) to (2): 17.580 s 40(4): 17.580 s 41(1): 17.590 s 41(2): 17.590 s 41(3): 17.590 s 41(4): 17.590 s 42: 17.590 s 43(1): 17.600 s 43(4): 17.600 ss 44 to 46: 17.610 s 47(1): 17.620, 17.710 s 48: 17.625 s 48(1): 17.620 s 48(4A): 17.620 s 49: 17.630 s 50(1): 17.640 s 51: 17.1150 s 51(1): 17.1030 ss 51 to 56: 17.1000 s 52: 17.1030, 17.1150 s 53: 17.1150 s 53(1): 17.1030 s 53(3): 17.1030 s 54: 17.1050, 17.1060, 17.1280, 17.1290

xliv

Australian Commercial Law

Australian Consumer Law — cont s 54(1): 17.375, 17.1040 s 54(2): 17.1050 s 54(3): 17.1050 s 54(4): 17.1050 s 54(5): 17.1050 s 54(6): 17.1050 ss 54 to 56: 21.300 s 55: 17.1290 s 55(1): 17.1070 s 55(2): 17.1080 s 55(3): 17.1080 s 56: 17.1280, 17.1290 s 56(1): 17.1090 s 56(2): 17.1090 s 56(3): 17.1090 s 57: 17.1090 s 57(1): 17.1100 s 58: 17.1280 s 58(1): 17.1110 s 58(2): 17.1110 s 59: 17.1280 s 59(1): 17.1120 s 60: 17.1140, 21.230, 21.470, 21.480, 28.80 ss 60 to 61: 17.1000 s 61: 21.230, 21.470 s 61(1): 17.1140 s 61(2): 17.1140 s 61(3): 17.1140 s 62: 17.1140 s 63: 17.1140 s 64(1): 17.1150, 21.230, 21.300 s 64A(1): 21.300 ss 64A(1) to (2): 17.1150 s 64A(2): 21.230 s 64A(3): 17.1150, 21.230, 21.300 s 64A(4): 17.1150 s 67: 15.480 s 68: 15.20 s 69(1): 17.1360 s 71: 17.1360 s 73(1): 17.1370 s 75(1): 17.1370 s 76: 17.1380 s 77: 17.1380 s 78: 17.1380 s 79: 17.1380 s 82(1): 17.1390 s 82(2)(b): 17.1390 s 82(3): 17.1390 s 85(1)(b): 17.690 s 89: 17.1390 s 90(1): 17.1390 s 91(1): 17.1420 s 92(1): 17.1420 s 95: 17.1420 s 96(1): 17.1400 s 96(3): 17.1400 s 97(1): 17.1400

s 97(3): 17.1400 s 99(1): 17.1400 s 106(1): 17.1310 s 109(1): 17.1310 s 114(1): 17.1310 s 118(1): 17.1310 s 122(1): 17.1310 s 123(1): 17.1310 s 123(1)(c): 17.1310 s 127(1): 17.1310 s 127(2): 17.1310 s 127(3): 17.1310 s 129: 17.1310 s 131(1): 17.1310 s 134: 17.1310 s 136(1): 17.1310 s 138(1): 17.1180 s 138(2): 17.1180 ss 138 to 150: 17.1170 s 139: 17.1180 s 139A(2): 17.1150 s 139B(1): 17.670 s 140: 17.1180 s 142: 17.1220 s 143: 17.1240 s 146: 17.1260 s 148: 17.1220 s 149: 17.1270 s 150(1): 17.1250 s 151(1): 17.380 s 151(1)(a): 17.390 s 151(1)(k): 17.390 ss 151 to 168: 17.650, 17.660 s 152(1): 17.420 s 153(1): 17.470 s 154(1): 17.480 s 155(1): 17.490 s 156(1): 17.520 ss 157(1) to (2): 17.550 s 158(1): 17.560 s 159(1): 17.450 s 161(1): 17.570 s 162(1): 17.580 s 162(2): 17.590 ss 163(1) to (2): 17.600 ss 164(1) to (2): 17.610 s 165(1): 17.627 s 166(1): 17.627 s 167(1): 17.630 s 168(1): 17.640 s 170(1): 17.1370 s 172(1): 17.1370 s 173(1): 17.1380 s 174(1): 17.1380 s 175(1): 17.1380 s 178(1): 17.1390 s 183(1): 17.1390 ss 188 to 191: 17.1400 s 194(1): 17.1310 s 197(1): 17.1310 s 199(1): 17.1310

s 202(1): 17.1310 s 203(1): 17.1310 s 204(1): 17.1310 s 205(1): 17.950 s 207: 17.700 s 207(1): 17.680, 17.690 s 207(2): 17.680 s 208: 17.700 s 208(1): 17.700 s 209: 17.700 s 210(1): 17.1310 s 212: 17.660 s 217: 17.660 s 218: 17.940 s 219: 17.950 s 223: 17.960 s 224(1): 17.650, 17.710 s 224(1)(a)(i): 17.710 s 224(3): 17.710 s 225(1): 17.710 s 232: 17.650, 17.720 s 232(2): 17.730, 17.740 s 233: 17.720 s 234(1): 17.720 s 236: 17.650, 17.790, 17.800, 17.810, 17.820, 17.910 s 236(1): 17.780, 17.820, 17.830 s 236(2): 17.860 ss 236 to 238: 17.790 s 237: 17.650, 17.880, 17.900, 17.910 s 237(3): 17.880, 17.900 s 239: 17.900 s 239(1): 17.890 s 239(3): 17.890 s 239(4): 17.890 s 243: 8.100, 17.650, 17.900, 17.920 s 246(2): 17.970 s 247: 17.980 s 248: 17.990 s 250(1): 17.320 s 250(2): 17.290 s 250(3): 17.320 s 251: 17.700 s 252: 17.1310 s 255(3): 17.390 ss 255 to 257: 17.390 ss 256 to 257: 17.390 s 259(1): 17.1160 s 259(2): 17.1160 s 259(3): 17.1160 s 259(4): 17.1160 s 259(5): 17.1160 s 260: 17.1160 s 262(1): 17.1160 ss 263(2) to (3): 17.1160 s 263(4): 17.1160 s 266: 17.1160 ss 267 to 268: 17.1160 s 271: 17.1170, 17.1280

Table of Statutes

Australian Consumer Law — cont s 271(1): 17.1280 s 271(3): 17.1280 s 271(5): 17.1280 s 272: 17.1280 s 273: 17.1280 s 274: 17.1170, 17.1290 s 274(2): 17.1290 s 276: 17.1300 s 276A(1): 17.1300 s 276A(2): 17.1300 s 276A(3): 17.1300 s 276A(4): 17.1300 s 278(1): 17.1320 ss 278 to 286: 17.1320 s 279(2): 17.1340 s 279(3): 17.1340 s 280(1): 17.1330 s 280(2): 17.1330 s 281: 17.1340 s 283(1): 17.1340 s 283(6): 17.1340 s 287(1): 17.1320 s 287(2): 17.1320 Ch 2, Pt 2-1: 17.30 Ch 3, Pt 3-1: 17.30 Ch 4, Pts 4-1 to 4-7: 17.30 Ch 5, Pts 5-1 to 5-5: 17.30 Pt 2-2: 17.30, 17.200 Pt 2-3: 17.30 Pt 3-2, Div 1: 14.10, 17.30, 17.340 Pt 3-2, Div 2: 17.30 Pt 3-2, Div 3: 17.30 Pt 3-3: 17.30, 17.1310 Pt 3-5: 17.30 Sch 2: 9.100, 9.290, 13.590, 16.340, 21.230, 21.300, 21.480, 25.1020, 33.30 Australian Human Rights Commission Act 1986 s 46P: 1.900 s 46PN: 1.900 Australian Securities and Investments Commission Act 2001: 17.1430, 27.40, 27.1440, 33.60 s 9: 27.40 s 10: 27.40 s 12BF(4): 17.1430 ss 12BF to 12BM: 17.1430 ss 12CA to 12CC: 17.1430 s 12DA: 17.1430 ss 12DA to 12DN: 17.1430 s 12DB: 17.1430 s 12DF: 17.1430 s 12DG: 17.1430 s 12DH: 17.1430 s 12DJ: 17.1430 s 12DK: 17.1430

s 12DL: 17.1430 ss 12EB to 12ED: 17.1430 s 12GI(1): 17.1430 s 12GY: 17.1430 s 12BAB(1): 17.1430 s 12GBA: 17.1430 s 12GLC: 17.1430 s 12GLD: 17.1430 s 12GNB: 17.1430 s 12GND(1): 17.1430 s 12GND(2): 17.1430 s 12GXA: 17.1430 s 13: 27.1440 s 14: 27.1440 s 15: 27.1060, 27.1440 s 17: 27.1440 s 18: 27.1440 s 19: 27.1440 s 22: 27.1440 ss 28 to 39: 27.1440 s 49: 27.1440 s 50: 27.1440 s 90: 27.1440 s 91: 27.1440 Pt 2, Div 2: 17.1430 Australia–United States Free Trade Agreement 2004: 30.1270, 30.1410 Banking Act 1959: 8.60 Bankruptcy Act 1966: 6.200, 11.520, 26.600, 31.10, 31.20, 31.30, 31.60, 31.90, 31.100, 31.140, 31.170, 31.180, 31.310, 31.440, 31.460, 31.550, 31.570, 31.580, 31.610, 31.740 s 5(1): 31.160, 31.300 s 5(2): 31.470, 31.500, 31.520 s 5(3): 31.470, 31.500, 31.520 s 7: 31.90 s 7(1A): 31.100 s 12: 31.40 s 16: 31.40 s 18(1): 31.50 s 18(8): 31.50 s 18(8AA): 31.50 s 19(1): 31.60 s 20-5(1): 31.60 s 20-10(1): 31.60 s 20-20(3): 31.60 s 20F: 31.70 s 27(1): 31.80 s 27(2): 31.80 s 40: 31.190 s 40(1): 31.200, 31.220 s 40(1)(c)(i): 31.210 s 40(1)(c)(ii): 31.215 s 40(1)(g): 31.250 s 40(1)(i): 31.720 s 40(1)(j): 31.720 s 40(1)(k): 31.720

s 40(1)(l): 31.720 s 40(7): 31.220 s 41: 31.230 s 41(5): 31.230, 31.240, 31.250 s 43(1): 31.190 s 43(2): 31.150, 31.190, 31.270 s 44: 31.190 s 45: 31.130 s 45(1): 26.600 s 45(2): 26.600 s 52(1): 31.260 s 52(2): 31.260 s 54(1): 31.280 s 54(2): 31.280 s 54(3): 31.280 s 54(5): 31.280 s 54(6): 31.280 s 54(6A): 31.280 s 54(7): 31.280 s 54A: 31.160, 31.220 s 54A(2): 31.160 s 54C: 31.160 s 54C(2): 31.160 s 54D: 31.160 s 54E: 31.160 s 54L: 31.160 s 55: 31.160, 31.190, 31.260, 31.280 s 55(3B): 31.160 s 55(3AA): 31.190 s 55(6): 31.160 s 56A: 31.130 s 56A(3): 31.130 s 56B: 31.130 s 56C: 31.130 s 56E: 31.130 s 58: 31.280 s 58(1): 31.50, 31.60, 31.270, 31.570 s 58(3): 31.270 s 58(5): 31.270 s 58(5A): 31.270 s 58(6): 31.270 s 58A: 31.50 s 65-45(1): 31.700 s 65-45(5): 31.700 s 73(1): 31.330 ss 73 to 76: 31.320 s 74(5): 31.330 s 75-10: 31.290 ss 75-10 to 75-50: 31.290 s 75-15(1): 31.290 s 75-25(1): 31.290 s 75-50(2)(k): 31.330 s 75(1): 31.340 s 75(2): 31.340 s 75(3): 31.340 s 76B: 31.340 s 77: 31.280, 31.310 s 77(1)(a)(ii): 31.620 s 77(1)(c): 31.290

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Australian Commercial Law

Bankruptcy Act 1966 — cont s 77(1)(d): 31.290 s 77(1)(bb): 31.620 s 77(1)(bc): 31.620 s 77(2): 31.310 s 77C: 31.310 s 77AA: 31.310 s 77CA: 31.310 s 78(1)(f): 31.310 s 80(1): 31.620 s 80(1A): 31.620 s 81: 31.300 s 81(11AA): 31.300 ss 81A to 81G: 31.310 s 82(1): 31.360 s 82(2): 31.360 s 82(3): 31.360 s 82(3A): 31.360, 31.630 s 82(3B): 31.360 s 82(3AB): 31.360 s 82(4): 31.360 s 82(5): 31.360 ss 82 to 118: 31.690 s 84: 31.360 s 86: 31.370 s 86(2): 31.370 s 90: 31.380 s 96-1(a): 31.60 s 108: 31.580 s 109(1): 31.580 s 109(2): 31.580 s 109(3): 31.580 s 109(5): 31.580 s 109(11): 31.580 s 110: 31.610 s 113: 31.580 ss 114A to 114C: 31.580 s 115(1): 31.400 s 115(1A): 31.400 s 115(1B): 31.400 s 115(2): 31.410 s 116(1): 31.390, 31.400 s 116(1)(a): 31.430 s 116(2): 31.560 s 116(2)(b)(i): 19.430 s 116(2)(c)(i): 19.430 s 116(2B): 31.560 s 116(2C): 31.560 s 116(3): 31.560 s 116(4): 31.560 s 117: 31.560, 31.580 s 118(1): 31.460 s 118(2): 31.460 s 118(3): 31.460 s 118(4): 31.460 ss 118 to 119A: 31.420, 31.450 s 119: 31.460 s 119A: 31.460 s 119A(5): 31.460 s 120: 31.200, 31.420, 31.450, 31.500, 31.620

s 120(1): 31.470 s 120(2): 31.470 s 120(3): 31.470 s 120(3A): 31.470 s 120(4): 31.470 s 120(5): 31.470 s 120(6): 31.470 s 120(7)(a): 31.470 s 120(7)(c): 31.470 s 121: 31.200, 31.420, 31.450, 31.500, 31.620 s 121(1): 31.480, 31.500 s 121(1)(a): 31.490 s 121(1)(b): 31.500 s 121(2): 31.500 s 121(4): 31.500 s 121(5): 31.500 s 121(6): 31.500 s 121(7): 31.500 s 121(8): 31.500 s 121(9)(a): 31.500 s 121(9)(b): 31.490 s 121(9)(c): 31.500 s 121A: 31.500 s 122: 31.200, 31.450, 31.530, 31.540, 31.620 s 122(1): 31.510, 31.520 s 122(2)(a): 31.510, 31.540 ss 122(2)(b) to (d): 31.510 s 122(4)(a): 31.510 s 122(4)(c): 31.540 s 122(5): 31.540 s 122(8): 31.510 s 122(8)(c): 31.510 s 123: 31.420 s 123(1): 31.420 s 123(3): 31.420 s 123(4): 31.420 s 123(6): 31.420 s 124: 31.420 s 124(1)(a): 31.420 s 124(1)(b): 31.430 s 126: 6.200, 31.430 s 128B: 31.500, 31.620 s 128B(1)(c): 31.500 ss 128B to 128C: 31.420 s 128C: 31.500, 31.620 s 128C(1)(e): 31.500 s 129: 31.570 s 133: 31.570 s 134(1): 31.570 s 134(3): 31.570 s 136: 31.570 ss 139A to 139H: 31.390 s 139D: 31.390 s 139E: 31.390 s 139H: 31.590 s 139J: 31.440 s 139L: 31.680 s 139L(a): 31.440 s 139L(b): 31.440

s 139M: 31.440 s 139N: 31.440 s 139P: 31.440 s 139S: 31.440 s 139T: 31.440 s 139W: 31.440 s 139X: 31.440 s 139Y: 31.440 s 139DA: 31.390 s 139EA: 31.390 s 139WA: 31.440 s 139ZK: 31.440 s 139ZL: 31.440 s 139ZM(1A): 31.440 s 139ZM(1): 31.440 s 139ZO: 31.440 ss 139ZQ to 139ZT: 31.550 s 139ZIB: 31.440 s 139ZIF: 31.440 s 140: 31.600 s 141: 31.610 s 145: 31.600 s 149: 31.620 s 149A: 31.620 s 149B: 31.620 s 149C: 31.620 s 149D: 31.620 s 153: 31.630 s 153(3): 31.630 s 153(4): 20.220, 31.630 s 153A: 31.600, 31.640 s 153B: 31.640, 31.680 s 153B(2): 31.640 s 154: 31.600, 31.660 s 156A(3): 31.60, 31.280, 31.570 s 160: 31.280, 31.570 s 185C(2E): 31.680 s 185C(4A): 31.680 s 185C(2): 31.680 s 185C(4): 31.680 s 185C(5): 31.680 s 185D: 31.680 s 185E: 31.680 s 185F: 31.680 s 185G: 31.680 s 185H: 31.680 s 185K: 31.680 s 185M: 31.680 s 185N: 31.680 s 185R: 31.680 s 185T: 31.680 s 185U: 31.680 s 185Z: 31.680 s 185EA: 31.680 s 185EC(1): 31.680 s 185LA: 31.680 s 185LB: 31.680 s 185LC: 31.680 s 185MC: 31.680 s 185NA(1): 31.680 s 185NA(3): 31.680

Table of Statutes

Bankruptcy Act 1966 — cont s 185PC: 31.680 s 185QA: 31.680 ss 186B to 186D: 31.680 s 188: 31.220, 31.580, 31.680, 31.700, 31.710, 31.720 s 188(6): 31.700 s 188A(2): 31.690 s 189: 31.700 s 189(2): 31.720 s 189AB: 31.700 s 190(1): 31.710 s 190(2): 31.700 s 190(3A): 31.700 s 204: 31.710 s 204(2): 31.710 s 204(3): 31.710 s 205: 31.730 s 206: 31.720 s 208: 31.710 s 216: 31.710 s 218(1): 31.710 s 218(2): 31.710 s 221: 31.720 s 221(3): 31.720 s 221A: 31.690 s 222: 31.690 s 222A: 31.690 s 222B: 31.690 s 222C: 31.690 s 229: 31.690 s 230: 31.690 s 231: 31.690 ss 263 to 277A: 31.740 s 265(1): 31.740 s 265(1A): 31.740 s 265(4): 31.740 s 265(5): 31.740 s 265(8): 31.740 s 266: 31.740 ss 267B to 267G: 31.740 s 269: 6.200, 31.740 s 277A: 31.740 s 277B: 31.740 s 304A: 31.620, 31.740 s 306(1): 31.230 s 308(c): 31.110 Pt X: 27.830, 31.180, 31.400, 31.670, 31.680, 31.690, 31.700, 31.710, 31.720 Pt IV, Div 6: 31.400 Pt IX: 31.180, 31.670, 31.680 Pt VI, Div 4B: 31.440 Pt XI: 31.170, 31.580 Bankruptcy Regulations 1996: 19.430, 31.160, 31.440, 31.470, 31.680, 31.740 reg 6.01: 31.580 reg 6.02: 31.580 reg 6.03: 19.430, 31.560 reg 6.03B(1): 19.430, 31.560

reg 6.03B(2): 19.430, 31.560 reg 6.03B(3): 31.560 reg 6.03B(4): 31.560 reg 6.21: 31.600 Sch 3: 31.580 Bankruptcy and Family Law Legislation Amendment Act 2004: 31.440 Bills of Exchange Act 1909: 5.170, 23.10, 23.40, 23.70, 23.210, 23.230, 23.250, 23.260, 23.340, 23.370, 23.380, 23.420, 23.470, 23.720, 23.730, 23.760, 23.860, 24.10 s 4: 23.200, 23.210, 23.420 s 8(1): 5.300, 23.40 s 8(4): 23.120 s 11(1): 23.60 s 12(1): 23.100 s 12(3): 23.100 s 13(3): 23.110 s 13(4): 23.110 s 14(1): 23.90 s 14(2): 23.90 s 15(1): 23.80 s 16: 23.80 s 17: 23.620 s 18(2): 23.130 s 19(1): 23.810 s 19(2): 23.810 s 20: 23.1020 s 21: 23.680 s 22(1): 23.710 s 22(2)(a): 23.710 s 22(2)(b): 23.710 s 23(1): 23.740 s 24(1): 23.720 s 24(2): 23.720 s 24(3): 23.720 s 25: 23.580 s 25(1): 23.450 s 25(2): 23.450 s 25(3): 23.450 s 26: 23.530, 23.710 s 26(2): 23.420 s 28: 23.380 s 29: 23.430, 23.640 s 30: 23.440 s 31(1): 23.310 s 31(2): 23.310 s 32(1): 23.470 s 32(1)(b): 5.170 s 32(2): 23.490 s 33: 23.350 s 34(1): 23.230, 23.510 s 34(3): 23.540, 23.630 s 35(1): 23.490 s 35(2): 23.490, 23.500 s 36: 23.650 s 36(3): 23.670

s 36(4): 23.690 s 37: 23.670 s 38: 23.680 s 39: 23.680 s 40: 23.680 s 41: 23.610 s 41(1): 23.650 s 41(2): 23.650 s 41(3): 23.650 s 41(4): 23.650 s 42: 23.660 s 43: 23.480, 23.520 s 44: 23.730 s 45: 23.740 s 46(1): 23.750 s 46(2): 23.760 s 47: 23.760 s 48: 23.710, 23.760, 23.830 s 49(1): 23.720 s 50(2): 23.780 s 51(1): 23.790 s 51(2): 23.800 s 52: 23.840 s 53: 23.600, 23.850 s 54: 23.860 s 54(1): 23.870 s 55(1): 23.880 s 55(2): 23.890 s 56: 23.910 s 59: 23.280, 23.430, 23.550, 23.640 s 60: 23.560, 23.640 s 60(1): 23.290 s 60(2): 23.300, 23.430 s 61: 23.340, 23.570 s 62: 23.900 s 63: 23.360 s 64(1): 23.640, 23.930 s 64(3): 23.930 s 65: 23.700 s 66: 23.940 s 67: 23.630, 23.950 s 68: 23.960 s 69: 23.590 s 69(1): 23.970 s 69(2): 23.970 s 70: 23.980 s 71: 23.990 s 73: 23.1000, 23.1010 s 74: 23.1030 s 76: 23.1040 s 77: 23.1050 s 88D: 24.720 s 89: 23.1060 s 89(1): 5.300 s 90: 23.1070 s 91: 23.1090 s 92: 23.1100 s 93: 23.1110 s 94: 23.1080 s 95: 23.1120

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Australian Commercial Law

Bills of Exchange Act 1909 — cont s 97(1): 23.400 s 98(2): 23.810 s 98(3): 23.810 Broadcasting Services Act 1992: 30.900, 30.910, 30.1320 s 125: 33.120 Sch 2 cl 7(1)(a): 33.120 Business Names Registration Act 2011: 26.190 CLERP (Audit Reform and Corporate Disclosure) Act 2004: 27.940 Carriage of Goods by Sea Act 1991: 21.540 Cheques Act 1986: 23.10, 24.10, 24.120, 24.160, 24.220, 24.290, 24.300, 24.330, 24.340, 24.460, 24.500, 24.610, 24.810, 24.830, 24.880, 24.920 s 3: 24.70, 24.150, 24.940 s 3(1): 24.200, 24.360, 24.480, 24.550, 24.880 s 3(2): 24.710 s 3(3): 24.370 s 3(4): 24.370 s 3(5): 24.350, 24.850 s 3(6): 24.630 s 3(8): 24.580 s 4(3): 24.610 s 5(1): 24.810, 24.830 s 10: 5.300 s 10(1): 24.50, 24.70 s 11: 24.60 s 12(1): 24.60 s 13: 24.70 s 14(1): 24.90 s 15: 24.100, 24.940 s 16: 24.950 s 16(1): 24.110 s 16(2): 24.110 s 16(3): 24.120 s 16(4): 24.120 s 17B: 24.940 s 18: 24.290, 24.300, 24.310, 24.430 ss 18 to 22: 24.950 s 19(1): 24.140 s 19(2): 24.140 s 20: 24.130 s 20A: 24.950 s 21: 24.140, 24.950 s 22: 24.150 s 23: 24.950 s 24: 24.950 s 25: 24.200 s 26: 24.200 s 27: 24.200

s 28: 24.200 s 28(1): 24.390 s 28(2): 24.200, 24.390 s 29: 24.200 s 30(1): 24.180 s 30(2): 24.180 s 30(3): 24.180 s 30(4): 24.180 s 31(1): 24.190 s 31(2): 24.190 s 31(3): 24.190 s 32(1): 24.210, 24.640 s 32(2): 24.210 s 33(1): 24.220 s 33(2)(a): 24.220 s 33(2)(b): 24.220 s 34: 24.230 s 35(1): 24.240 s 35(2): 24.260 s 36: 24.280 s 37: 24.280 s 38: 24.280 s 39: 24.320 s 40(1): 24.320 s 40(2): 24.320 s 40(3): 24.320 s 41: 24.320 s 42: 24.340 s 43: 24.330 s 44: 24.330 s 46: 24.370 s 46(1): 24.350 s 46(2): 24.350 s 46(3): 24.350 s 49: 24.370, 24.380 s 49(1): 24.360 s 50(1): 24.370 s 50(2): 24.370 s 51: 24.370 s 52: 24.370 s 53(1): 24.160 s 53(2): 24.160 s 53(3): 24.160 ss 53 to 57: 24.160 s 54: 24.160 s 55: 24.170, 24.370 s 56: 24.160 s 57: 24.160 s 58: 24.460 s 61: 24.460 s 61(2): 24.120 s 62: 24.460 s 63: 24.460 s 64: 24.460 s 66: 24.460 s 67: 24.460 s 69: 24.470 s 70: 24.470 s 71: 24.400, 24.480 s 72: 24.480 s 73: 24.490

s 74: 24.410, 24.490 s 75: 24.420 s 75(1): 24.500 s 75(2): 24.500 s 76(1): 24.520 s 76(2): 24.520 s 77: 24.530 s 78: 24.540 s 78(1)(a): 24.550 s 78(1)(b): 24.560 s 78(1)(c): 24.570 s 78(2): 24.580 s 79: 24.550 s 80: 24.560 s 81: 24.570 s 82(1): 24.540 s 82(2): 24.450, 24.560 s 82(3): 24.440, 24.580 s 83(1)(a): 24.590 s 83(1)(b): 24.590 s 83(2): 24.590 s 84: 24.590 s 85: 24.590 s 86: 24.590 s 87: 24.550 s 89: 24.850 s 90: 24.840 s 91: 24.700 s 92: 24.620 s 93(1): 24.160 s 94(1): 24.630 s 94(2): 24.630 s 95: 24.710, 24.720, 24.790, 24.800, 24.900 s 95(2): 24.790 s 97: 24.890 s 98: 24.900 s 98(1): 24.910 s 100: 24.920 s 114: 24.80 s 115: 24.870 s 116: 24.870 Cheques and Payment Orders Act 1986: 23.10, 24.10 Cheques and Payment Orders Amendment Act 1998: 24.10, 24.610 Child Support (Registration and Collection) Act 1988 s 50: 31.580 Circuit Layouts Act 1989: 30.150 Civil Aviation (Carriers’ Liability) Act 1959: 21.510, 21.530 Pt IV: 21.530 Civil Dispute Resolution Act 2011 s 12(1): 1.840

Table of Statutes

Commonwealth of Australia Constitution: 1.40, 1.70, 1.80, 1.100, 1.160, 1.180, 1.190, 1.710, 34.20, 34.30, 34.40, 34.120 s 1: 1.70 s 51: 1.70, 1.100 s 51(xiii): 1.100 s 51(xvii): 1.100 s 51(xviii): 1.100, 30.20 s 51(xxix): 1.100, 1.140 s 51(xxxv): 1.100, 34.30, 34.50 s 51(xxxvii): 1.150, 19.40 s 51(xxxi): 22.1290 s 51(xxxix): 32.170 s 51(i): 1.100, 1.120, 1.160 s 51(v): 1.100 s 51(ii): 1.100, 1.130 s 51(vi): 1.100 s 51(xx): 1.100, 1.110, 17.20, 18.20, 34.30, 34.40, 34.50, 34.60 s 51(xii): 1.100 s 51(xiv): 1.100 s 51(xvi): 1.100 s 57: 1.220 s 61: 1.40, 1.70, 1.80 s 62: 1.80 s 64: 1.80 ss 71 to 80: 1.180 s 73: 1.570 s 75: 1.570 s 76: 1.570 s 90: 1.100, 1.170 s 92: 1.160 s 106: 1.70 s 107: 1.70 s 109: 1.100, 17.1140, 22.1000, 32.170, 34.20 Company Law Review Act 1998: 27.60, 27.230 Competition Code: 18.30 Competition and Consumer Act 2010: 1.30, 1.580, 1.590, 1.670, 7.960, 8.490, 8.510, 9.100, 9.290, 13.590, 16.340, 17.10, 17.20, 17.670, 17.1430, 18.10, 18.20, 18.30, 18.50, 18.130, 18.300, 18.310, 18.360, 18.400, 18.430, 18.450, 18.490, 18.500, 18.510, 18.520, 18.540, 18.620, 18.670, 19.660, 21.230, 21.300, 21.480, 25.1020, 27.830, 32.170, 32.490, 33.30, 33.120, 34.420, 34.440, 34.480 s 2: 1.280 s 4: 18.490 s 4D: 18.100, 18.110 s 4E: 18.480 s 4L: 18.670

s 5(1)(c): 17.20 s 6: 18.20 s 6(2F): 17.1430 s 6(3): 17.20 s 18: 30.2690 s 44ZZZB: 18.151 s 44ZZRM: 18.510 s 44ZZRO: 18.590 s 44ZZRP: 18.590 s 44ZZRQ: 18.590 s 44ZZRR: 18.590 s 44ZZRS: 18.590 s 44ZZRI: 18.600 s 44ZZRD(1): 18.150 s 44ZZRF(1): 18.590 s 44ZZRG(1): 18.590 s 44ZZRD(2): 18.150 s 44ZZRD(3): 18.150 s 44ZZRF(3): 18.590 s 44ZZRD(4): 18.150 s 44ZZRD(6): 18.150 ss 44ZZRA to 44ZZRV: 18.50 ss 44ZZRJ to 44ZZRK: 18.590 s 44AA: 18.30 ss 44ZZS to 44ZZZB: 18.50 s 44ZZT(1): 18.151 s 44ZZU(3): 18.151 s 44ZZU(4): 18.151 s 44ZZV(1): 18.151 s 44ZZW: 18.151, 18.510 s 44ZZX: 18.510 s 44ZZX(1): 18.151 s 44ZZX(2): 18.151 s 44ZZZ: 18.151 s 45: 18.60, 18.70, 18.80, 18.90, 18.120, 18.470, 18.481, 18.510, 18.560, 18.570, 18.580 s 45(2): 18.90 s 45A: 18.560 s 45B: 18.160, 18.510 s 45B(1): 18.160 s 45C: 18.160, 18.510 s 45D: 18.50, 18.170, 18.500, 18.510, 18.530, 34.480, 34.490 s 45D(1): 18.170 s 45E: 18.530 s 45F: 18.530 ss 45 to 45C: 18.50 s 45DB: 18.530 s 45DC: 34.480 s 45DD: 34.480 s 46: 18.40, 18.50, 18.180, 18.190, 18.200, 18.220, 18.230, 18.240, 18.260, 18.270, 18.280, 18.290, 18.470, 18.480, 18.500, 18.510 s 46(1): 18.180, 18.290 s 46(1AA): 18.290

s 46(1AB): 18.290 s 46(1AAA): 18.290 s 46(3): 18.180 s 46(3A): 18.180 s 46(3C): 18.180 s 46(3D): 18.180 s 46(4A): 18.290 s 46(6A): 18.290 s 46(7): 18.290 s 46A: 18.50, 18.300, 18.510 s 46A(1): 18.300 s 46A(2): 18.300 s 46A(3): 18.300 s 47: 18.50, 18.310, 18.320, 18.325, 18.380, 18.470, 18.510, 18.530 s 47(1): 18.320 s 47(6): 18.330 s 47(10): 18.310 s 48: 18.50, 18.400, 18.420, 18.500, 18.510, 18.610 s 49: 18.440 s 50: 18.50, 18.450, 18.470, 18.510, 18.600, 18.630, 18.640 s 50(1): 18.450, 18.451 s 50(1A): 18.460 s 50(3): 18.450, 18.460 s 50(4): 18.459 s 50(5): 18.459 s 50(6): 18.450, 18.480 s 50A: 18.50, 18.460, 18.470, 18.510, 18.600, 18.650 s 50A(1B): 18.460 s 50A(3): 18.460 s 50A(6): 18.460 s 51: 18.500 s 51(2)(b): 8.510 s 51(2)(d): 8.510 s 51(2)(e): 8.510 s 51(2A): 18.500 s 51(3): 18.500 s 51AD: 18.680 s 51AE: 18.680 s 51AE(2): 18.680 s 51ACA: 18.680 s 51ACA(3): 18.680 s 51ACD: 18.680 s 55: 17.1430 s 55B: 17.1430 s 55B(2): 17.1430 s 55G(1): 17.1430 ss 75 to 87: 34.480 s 76: 18.520, 18.530, 18.550 s 76(1A): 18.530 s 76(1B): 18.530 s 76(1)(ia): 17.1430 s 76(3): 18.530 s 76C(1): 18.140 s 77: 18.530 s 77A(1): 18.550

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Australian Commercial Law

Competition and Consumer Act 2010 — cont s 78: 18.530 s 80: 18.520, 18.600, 18.680 s 80(1A): 18.460, 18.600 s 80(1B): 18.460, 18.600 s 80AC: 18.459 s 81: 18.459, 18.520 s 81(1): 18.630 s 81(1A): 18.630 s 81(1B): 18.460, 18.650 s 81(1C): 18.630 s 81(2): 18.650 s 81A: 18.459 s 82: 18.520, 18.610, 18.680 s 86(1A): 18.40 s 86C: 18.680 s 86D: 18.680 s 86D(1): 18.620 s 86E: 18.520, 18.660 s 86F: 18.660 s 87: 18.520, 18.620, 18.680 s 87B(4): 18.585 s 88(6A): 18.510 s 88(6B): 18.510 s 88(8A): 18.510 s 88(9): 18.460 ss 88 to 91: 18.510 s 90(5A): 18.510 s 90(5B): 18.510 s 90(5C): 18.510 s 90(5D): 18.510 s 90(6): 18.510 s 90(8): 18.510 s 90(8A): 18.510 s 90(9): 18.460, 18.510 s 90(9A): 18.450 s 90(11): 18.459 s 90(11A): 18.459 s 90A: 18.510 s 91: 18.510 s 91B: 18.510 s 93: 18.390 s 93(7A): 18.390 s 93A: 18.390 ss 93AA to 93AF: 18.140 s 95(1): 18.680 s 95A: 18.459 s 95AC: 18.459 s 95AH: 18.510 s 95AI: 18.510 s 95AN(1): 18.459 s 95AN(2): 18.459 s 95AP: 18.459 s 95AT: 18.459 s 95AZ: 18.510 s 95AZA: 18.510 s 95AZH: 18.459 s 95AZI: 18.459 s 95AZJ: 18.459 s 95AZN: 18.530

s 96: 18.400 s 96A: 18.430 ss 96 to 100: 18.50 s 97: 18.400 s 98(2): 18.430 s 98(3): 18.430 s 101A: 18.390 s 102(1A): 18.459 s 102(1B): 18.459 s 111: 18.459 s 117: 18.459 s 118: 18.459 s 130: 17.670 s 131: 17.20 s 131A: 17.1430 s 131A(1): 17.1430 s 131A(2): 17.1430 s 137A: 17.1230 ss 138 to 138B: 17.20 s 139A(1): 17.1150 s 139A(3): 17.1150 s 139B(2): 17.670 ss 140 to 140K: 17.20 ss 150A to 150K: 18.30 Pt IIIA: 18.30 Pt X: 18.10 Pt IV: 8.510, 18.30, 18.530, 18.560, 18.620, 18.660 Pt IV, Div 2: 34.480 Pt IVB: 18.680, 33.110 Sch 1: 18.30 Sch 2: 7.680, 14.10, 15.20, 15.480, 17.20, 20.250, 24.40, 28.80, 28.320, 30.2630, 30.2690, 30.2800 Competition and Consumer Act 2010: 30.2790 s 51ACC: 30.2790 s 51ACJ: 30.2790 s 76: 30.2790 Pt IVB: 30.2790 Competition and Consumer Amendment (Industry Code Penalties) Act 2014 s 3: 30.2790 s 6: 30.2790 s 8: 30.2790 Competition and Consumer (Industry Codes – Franchising) Regulation 2014 cl 3: 30.2790 cl 6: 30.2790 cl 8: 30.2790 cl 9: 30.2790 cl 11: 30.2790 cl 26: 30.2790 cl 34: 30.2790 cl 45: 30.2790 Sch 1: 30.2790 Annexure 1: 30.2790

Annexure 2: 30.2790 Competition and Consumer Legislation Amendment Act 2011: 17.200, 17.240 Competition and Consumer Regulations 2010 reg 9(3): 18.390 r 48: 18.151 Conciliation and Arbitration Act 1904: 34.420 Constitution Bill: 1.60 Consultation Draft Personal Properties Securities Bill 2008: 19.910 Consumer Credit Code: 19.30 Consumer Credit and Corporations Legislation Amendment (Enhancements) Act 2012: 19.40 Copyright Act 1968: 16.570, 16.600, 18.250, 18.325, 30.20, 30.30, 30.40, 30.50, 30.100, 30.150, 30.160, 30.170, 30.270, 30.280, 30.300, 30.310, 30.450, 30.460, 30.520, 30.530, 30.590, 30.600, 30.650, 30.680, 30.690, 30.700, 30.710, 30.800, 30.830, 30.890, 30.900, 30.980, 30.1060, 30.1110, 30.1180, 30.1230, 30.1240, 30.1330, 30.1340, 30.1400, 30.1420, 30.1460, 30.1480, 30.1490, 30.1500, 30.1550, 30.1560, 30.1710, 30.1730, 30.1760 s 5: 30.1580 s 6(1): 30.1580 s 6(2): 30.1580 s 6(4): 30.1580 s 7: 30.1580 s 10: 30.160, 30.180, 30.240, 30.410, 30.560, 30.760, 30.830, 30.900, 30.1060 s 10(1): 30.90, 30.150, 30.400, 30.530, 30.540, 30.1270, 30.1300 s 10(2): 30.650 s 10(2A): 30.650 s 10AA: 30.1000 s 13(1): 30.1610 s 14(1): 30.320, 30.930, 30.1610 s 15(2): 30.1600 s 16: 30.1600 s 19: 30.1600 s 19(4): 30.1600 s 21(1): 30.330 s 21(1A): 30.340 s 21(3): 30.350, 30.1710 s 22(3A): 30.1410

Table of Statutes

Copyright Act 1968 — cont s 22(3B): 30.1410 s 22(4): 30.870 s 22(5): 30.950 s 22(6): 30.1260 s 27: 30.1600 s 27(1): 30.370 s 28: 30.690 s 29(1): 30.70, 30.980 s 29(1)(b): 30.850 s 29(1)(c): 30.770 s 30: 30.1040 s 31: 30.460 s 31(1)(a): 30.310 s 31(1)(a)(i): 30.320 s 31(1)(a)(ii): 30.360 s 31(1)(a)(iv): 30.400 s 31(1)(a)(vi): 30.410 s 31(1)(a)(iii): 30.370 s 31(1)(a)(vii): 30.410 s 31(1)(b): 30.310 s 31(1)(b)(i): 30.320 s 31(1)(b)(ii): 30.360 s 31(1)(b)(iii): 30.400 s 31(1)(c): 30.310, 30.420 s 31(1)(d): 30.310, 30.420 s 31(5): 30.420 s 32: 30.80 s 32(1): 30.60, 30.100 s 32(2): 30.70, 30.100 s 32(4): 30.60 s 33(2): 30.720, 30.730 s 33(3): 30.720 s 33(5): 30.730 s 35(2): 30.240 s 35(4): 30.270 s 35(5): 30.300 s 35(6): 30.260 s 35(7): 30.300 s 36(1): 30.310, 30.430 s 36(1A): 30.450 s 37: 30.460, 30.470, 30.500, 30.990 s 38: 30.460, 30.500, 30.570, 30.990 s 39B: 30.1260 s 40: 30.600 s 40(2): 30.650 s 40(3): 30.650 s 40(4): 30.650 s 40(5): 30.650 s 41: 30.600 s 41A: 30.600 s 42: 30.600 s 43(1): 30.700 s 43(2): 30.600 s 43C: 30.680 s 44A: 30.520 s 44C: 30.530, 30.540 s 44C(2): 30.530 s 44D: 30.1000

s 44E: 30.550 s 45: 30.690 s 46: 30.690 s 47J: 30.680 ss 54 to 64: 30.710 s 55: 30.710 ss 65 to 67: 30.690 s 74(1): 30.1730, 30.1760 ss 74 to 77: 30.1710 s 75: 30.1720, 30.1730 s 77: 30.1740, 30.1750, 30.1760 s 77(1): 30.1740 s 77(2): 30.1760 s 77(2)(a): 30.1740 s 77(3): 30.1760 s 77(5): 30.1760 s 77A: 30.1760 s 80: 30.740 s 81: 30.740 s 84: 30.770 s 85: 30.420 s 85(1): 30.780 s 85(1)(c): 30.400 s 86(a): 16.600 s 86(c): 16.600, 30.400 s 87: 30.920 s 87(a): 30.930 s 87(c): 30.400, 30.930 s 88: 30.980 s 89: 30.770 s 90: 30.850 s 91: 30.910 s 92: 30.980 s 93: 30.820 s 94(1): 30.890 s 95(1): 30.970 s 96: 30.980 s 97(2): 30.790 s 97(3): 30.790 s 98(2): 30.870 s 98(3): 30.870 s 99: 30.950 s 100: 30.980 s 100A: 30.1010 s 101(1): 16.600, 30.750 s 101(1A): 16.600, 30.750 s 102: 30.990, 30.1000 s 102(2): 30.990 s 103: 30.990, 30.1000 s 103A: 30.1010 s 103B: 30.1010 s 103C: 30.1010 s 103AA: 30.1010 s 104: 30.1020 s 108: 30.800 s 109: 30.800 s 109A: 30.680, 30.810 s 110AA: 30.680, 30.880 s 111: 16.580, 30.960 s 111(1): 30.960 s 111(2): 30.960

s 111(3): 30.960 s 111(4): 30.960 s 112D: 30.1000 s 112E: 30.1260 s 113(1): 30.750 s 115: 30.1060, 30.1100, 30.1220 s 115(2): 30.1120, 30.1160 s 115(3): 30.1140, 30.1160 s 115(4): 30.1180 s 115A: 30.1265 s 115A(4): 30.1265 s 115A(5): 30.1265 s 116: 30.1060, 30.1100 s 116(1): 30.1220, 30.1240 s 116(1A): 30.1220 s 116(1C) to (1E): 30.1220 s 116(2): 30.1230 s 116B: 30.1300 s 116C: 30.1300 s 116D: 30.1310 ss 116AA to 116AJ: 30.1260 ss 116AK to 116AQ: 30.1270 s 116AN: 30.1280, 30.1270 s 116AN(2): 30.1280 s 116AN(3): 30.1280 s 116AN(4): 30.1280 s 116AN(5): 30.1280 s 116AN(6): 30.1280 s 116AN(7): 30.1280 s 116AN(8): 30.1280 s 116AN(9): 30.1280 s 116AO: 30.1270 s 116AO(3): 30.1280 s 116AO(4): 30.1280 s 116AO(5): 30.1280 s 116AO(6): 30.1280 s 116AP: 30.1270 s 116AP(3): 30.1280 s 116AP(4): 30.1280 s 116AP(5): 30.1280 s 116AP(6): 30.1280 s 116AQ: 30.1290 s 116AAA: 30.1410 s 119: 30.1060 ss 120 to 125: 30.1060 s 130A: 30.1000 ss 132AA to 132AT: 30.1330 s 132AC: 30.1330 s 132AD: 30.1330 s 132AE: 30.1330 s 132AH: 30.1330 s 132AJ: 30.1330 s 132AQ: 30.1330 ss 132AQ to 132AS: 30.1310 s 132APC: 30.1330 ss 132APC to 132APE: 30.1290 ss 135A to 135ZA: 30.660 s 135AL: 30.1320 ss 135AL to 135AU: 30.1320 ss 135ZB to 135ZZH: 30.670

li

lii

Australian Commercial Law

Copyright Act 1968 — cont s 135AOA: 30.1320 s 135AOB: 30.1320 s 135AOC: 30.1320 s 135AOD: 30.1320 s 135AOE: 30.1320 s 135AOF: 30.1320 ss 135ASA to 135AU: 30.1320 s 151: 30.800 s 152: 30.800 ss 184 to 188: 30.1550 s 189: 30.1430, 30.1440 ss 189 to 195AZO: 30.1420 s 192: 30.1430 s 193(2): 30.1450 s 194: 30.1450 s 194(2)(c): 30.1450 s 195(1): 30.1450 s 195AA: 30.1450 ss 195AC to 195AH: 30.1460 s 195AI: 30.1470 ss 195AJ to 195AL: 30.1470 s 195AM: 30.1530 s 195AN: 30.1530 s 195AO: 30.1450, 30.1520 s 195AP: 30.1460, 30.1520 s 195AQ: 30.1470 s 195AR: 30.1490 s 195AS: 30.1490 s 195AT: 30.1500 s 195AW: 30.1480 s 195AW(4): 30.1480 s 195BB: 30.1450 s 195ABA: 30.1410 s 195AHA: 30.1410 s 195AWA: 30.1480 s 195AWA(4): 30.1480 s 195AZA: 30.1510 ss 195AZM to 195AZO: 30.1530 s 196(1): 30.1030 s 196(2): 30.1040 s 196(3): 5.300, 22.220, 30.1040 s 196(4): 30.1050 s 197(1): 30.1090 s 215: 30.710 s 248A: 30.1350, 30.1380 ss 248A to 248V: 30.1340 s 248G: 30.1360 s 248J: 30.1370 s 248P: 30.1400 s 248Q: 30.1400 s 248CA: 30.1390, 30.1400 Pt IV: 30.40, 30.750, 30.1020, 30.1260, 30.1450 Pt III: 30.40, 30.750, 30.1450 Pt XIA: 30.1390 Copyright Amendment Act 2006: 30.680, 30.960, 30.1270, 30.1320

Copyright Amendment (Digital Agenda) Act 2000: 30.400, 30.1260, 30.1270 Copyright Amendment (Moral Rights) Act 2000: 30.1420 Copyright Amendment (Online Infringement) Act 2015 : 30.1265 Copyright Amendment (Parallel Importation) Act 2003: 30.550, 30.560 Copyright (International Protection) Regulations 1969: 30.1550 reg 4: 30.1550 reg 4A: 30.1400 reg 4B: 30.1400 reg 6: 30.1550 reg 7: 30.1550 Copyright Regulations 1969: 30.710 reg 17(1): 30.1750 Copyright (World Trade Organization Amendments) Act 1994: 30.1400, 30.1560 Corporate Code of Conduct Bill 2000: 33.120 cll 7 to 13: 33.120 cl 16: 33.120 Corporations Act 2001: 1.30, 1.150, 1.230, 1.280, 6.170, 7.610, 10.140, 13.340, 13.370, 13.530, 25.110, 25.950, 25.1060, 25.1070, 26.70, 26.120, 26.620, 26.630, 27.10, 27.20, 27.30, 27.40, 27.50, 27.60, 27.70, 27.110, 27.120, 27.150, 27.160, 27.170, 27.200, 27.220, 27.250, 27.300, 27.340, 27.400, 27.440, 27.510, 27.540, 27.550, 27.600, 27.651, 27.653, 27.656, 27.670, 27.750, 27.770, 27.795, 27.820, 27.830, 27.880, 27.910, 27.940, 27.950, 27.1030, 27.1040, 27.1100, 27.1120, 27.1180, 27.1190, 27.1300, 27.1310, 27.1320, 27.1330, 27.1400, 27.1420, 27.1440, 31.90, 33.30, 33.60, 33.130 s 1: 1.260 s 2: 1.270 s 9: 27.90, 27.210, 27.652, 27.700, 27.890, 27.910, 27.1370 s 15AA: 1.360 s 45A: 27.140 s 45A(2): 27.140 s 45A(3): 27.140 s 57: 1.300

s 57(1): 1.300 s 57(2): 1.300 s 92(3): 27.651 s 95A: 27.1230 s 103: 26.150 s 111AC: 27.930 s 111AE: 27.930 s 111AF: 27.930 s 111AO: 27.930 s 112: 27.70 s 112(2): 27.290 s 113: 27.130 s 114: 27.150 s 115: 26.150, 26.630 s 117(1): 27.170 s 117(2): 27.170 s 117(3): 27.170 s 117(5): 27.170 s 118(1): 27.170, 27.180 s 119: 13.530, 27.170 s 119A: 27.200 s 120: 27.350, 27.500 s 121: 27.660 s 123: 27.190 s 124: 6.170, 27.300 s 124(2): 27.300 s 125: 6.170 s 125(1): 27.300 s 125(2): 27.300 s 126: 6.170 s 128: 27.320 s 128(3): 27.320 s 129(1): 27.320 s 129(2): 27.320 s 129(3): 27.320 s 129(4): 27.320 s 129(5): 27.320 s 129(6): 27.320 s 129(7): 27.320 s 130: 27.310 s 131(1): 13.140, 13.530, 27.340 s 131(2): 13.530, 27.340 s 131(3): 13.530 s 134: 27.60, 27.240 s 135(1): 27.230 s 135(2): 27.250 s 136(1): 27.270 s 136(2): 27.280 s 136(3): 27.280 s 136(5): 27.280 s 140(1): 27.240, 27.350 s 140(2): 27.350 s 141: 27.250 ss 142 to 145: 27.660 s 148(1): 27.180 s 148(2): 27.130 s 148(3): 27.130 s 165: 27.130 s 167: 27.350 s 168(1)(a): 27.360 s 169(1): 27.360

Table of Statutes

Corporations Act 2001 — cont s 169(5A): 27.360 s 169(7): 27.360 s 172: 27.360 s 173: 27.360 s 175: 27.360 s 176: 27.360 s 180(1): 13.370, 27.740 s 180(2): 27.740 ss 180 to 183: 27.710 s 181: 27.730 s 181(1): 13.370 ss 181 to 183: 27.750 ss 182 to 183: 27.730 s 183(1): 13.340 s 184: 27.300, 27.750 s 184(1): 27.730 s 184(2): 27.730 s 184(3): 27.730 s 191(1): 13.340, 27.760 s 191(3): 27.760 s 191(4): 27.760 ss 191 to 192: 27.670 s 194: 27.760 s 195(1): 27.760 s 195(2): 27.760 s 196: 27.760 s 198E: 27.250 ss 200A to 200J: 27.810 s 201A: 27.160, 27.680 s 201B: 27.690 s 201E: 27.160 s 201F: 27.150 s 201M: 27.700 s 203C: 27.160, 27.800 s 203D: 27.800 s 203E: 27.160 s 204A: 27.160, 27.820 s 204B: 27.820 s 204D: 27.820 s 205B: 27.820 s 205G: 27.670 s 206A: 31.620 s 206B(1): 27.830 s 206B(3): 17.990, 27.830 s 206B(4): 27.830 s 206C: 27.830 s 206D: 27.830 s 206E: 27.830 s 206F: 27.830 s 206G: 27.830 s 206EA: 27.830 s 208: 27.770, 27.780 s 208(2): 27.770 s 209: 27.770 s 210: 27.770, 27.780 s 211: 27.770 s 212: 27.770 s 213: 27.770 s 214: 27.770 s 215: 27.770

s 216: 27.770 ss 217 to 227: 27.770 s 228: 27.770 s 229(3): 27.770 s 232: 27.400 ss 232 to 235: 27.300 s 233(1): 27.400 s 234: 27.400, 27.1230 s 236: 27.390 s 236(3): 27.390 s 237(2): 27.390 s 241(1)(d): 27.390 s 242: 27.390 s 246F: 27.890 s 247A: 27.910 s 247D: 27.910 s 249A: 27.160 s 249B: 27.150 s 249D: 27.860 s 249E: 27.860 s 249F: 27.860 s 249G: 27.860 s 249H: 27.890 s 249N: 27.860 s 249X: 27.250 s 249HA: 27.890 s 250N: 27.160, 27.850 s 250P: 27.160, 27.850 s 250R: 27.850 s 251A: 27.150, 27.160, 27.900 s 251B: 27.900 s 254A(2): 27.470 s 254A(3): 27.480 s 254B: 27.430 s 254C: 27.430 s 254D: 27.250, 27.500 s 254H: 27.440 s 254J: 27.480 s 254K: 27.540 s 254T: 27.530 s 254U: 27.530 s 254W(2): 27.250 s 254Y: 27.550 s 254SA: 27.90 s 256A: 27.440 s 256B(1): 27.540 s 256B(2): 27.540 s 256C(1): 27.540 s 256C(2): 27.540 s 256C(4): 27.540 s 256D: 27.540 s 256D(2): 27.540 s 256D(3): 27.540 s 256E: 27.540 s 257A: 27.550 ss 257A to 257J: 27.540 s 257B: 27.550, 27.600 s 257B(2): 27.560 s 257B(4): 27.560 s 257B(5): 27.560 s 257B(7): 27.570

s 257C(1): 27.560 s 257C(3): 27.560 s 257D: 27.600 s 257D(4): 27.600 s 257E: 27.550, 27.560 s 257H(1): 27.550 s 257H(2): 27.550 s 257J: 27.600 s 258A: 27.540 s 258D: 27.540 s 258E: 27.540 s 258F: 27.540 s 259A: 27.550 s 259B(2): 27.550 s 259B(3): 27.550 s 259C: 27.610 s 259D: 27.610 s 259E: 27.610 s 259E(2): 27.610 s 259E(3): 27.610 s 259E(4): 27.610 s 260A: 27.640, 27.650 s 260A(1): 27.620 s 260B: 27.620 s 260B(1): 27.630 s 260B(2): 27.630 s 260B(3): 27.630 s 260B(4): 27.630 s 260B(5): 27.630 s 260B(6): 27.630 s 260B(7): 27.630 s 260C: 27.620, 27.630, 27.640 s 260C(1): 27.640 s 260C(2): 27.640 s 260C(3): 27.640 s 260C(4): 27.640 s 260C(5): 27.640 s 260D(1): 27.640 s 260D(2): 27.640 s 286: 27.910 s 286(2): 27.910 s 287: 27.910 s 288: 27.910 s 292(1): 27.920 s 292(2): 27.920 ss 292 to 294: 27.140 s 293: 27.920 s 294: 27.920 s 295(1): 27.920 s 295(2): 27.920 s 295(3): 27.920 s 295(4): 27.920 s 295(5): 27.920 s 295A: 27.920 s 297: 27.920 s 299: 27.920 s 300: 27.920 s 300(11B): 27.940 s 301: 27.920 s 302: 27.930 ss 303 to 305: 27.930

liii

liv

Australian Commercial Law

Corporations Act 2001 — cont s 306: 27.930 s 307C: 27.940 s 324CD: 27.940 s 324DA: 27.940 ss 325 to 331: 27.940 s 327(1A): 27.940 s 327A: 27.940 s 330: 27.940 s 331AC: 1.300 s 331AAA: 1.300 s 411(4)(a)(ii): 27.960 ss 411 to 412: 27.960 ss 411 to 415: 27.950 s 413(1)(d): 27.1430 ss 413 to 414: 27.970 s 418: 27.990 s 418A: 27.990 s 419(1): 27.1150 s 419(3): 27.1150 s 419A: 27.1150 s 420: 27.980, 27.1030 s 420A: 27.1090 s 420B: 27.1030 s 420C: 27.1110 s 421: 27.1080 s 421A: 27.1050 s 422: 27.1060 s 423: 27.1120 s 424: 27.1030 s 425: 27.1160 s 427: 27.1000 s 428: 27.1070 s 429: 27.1050 s 430: 27.1050 s 431: 27.1080 s 432: 27.1080 s 433: 27.1100 s 434A: 27.1170 s 434B: 27.1170 s 435A: 27.1180 ss 435A to 451D: 27.1180 s 436A: 27.1180 s 436B: 27.1180 s 436C: 27.1180 s 436E: 27.1180 s 436F: 27.1180 ss 437A to 437F: 27.1180 s 438A: 27.1180 ss 438B to 438C: 27.1180 ss 439A to 439C: 27.1180 s 440A: 27.1180 s 440B: 27.1180 s 440C: 27.1180 s 440D: 27.1180 s 440F: 27.1180 s 441A: 27.1180 s 441C: 27.1180 s 443D: 27.1330 s 444A: 27.1180 s 444A(4): 27.1180

s 444B: 27.1180 ss 444D to 444H: 27.1180 s 444E: 20.220, 27.1180 ss 445C to 445D: 27.1180 s 445E: 27.1180 s 446A: 27.1180 s 446C(8): 27.1330 s 447A: 27.1180 ss 448A to 448C: 27.1180 s 459A: 27.1230 s 459B: 27.1230 s 459C(2): 27.1230 s 459D: 27.1230 s 459E: 27.1230 s 459F: 27.1230 ss 459G to 459J: 27.1230 s 459P: 27.1230 s 461: 27.1240 s 461(1): 27.300 s 461(2): 27.890 s 467: 27.1250 s 468: 27.1260 s 471: 27.1260 s 471A: 27.1260 s 471B: 27.1260 s 471C: 27.1260 s 475(8): 27.1330 s 481(5)(b): 27.1430 s 482: 27.1270 s 491: 27.1280 s 493: 27.1290 s 494: 27.1300 s 495(1): 27.1300 s 495(2): 27.1310 s 496: 27.1300 s 497: 27.1300 s 497(10): 27.1300 s 499: 27.1300 s 500: 27.1300 s 501: 27.1310 s 506(1)(b): 27.1310 s 506(1)(c)(d): 27.1310 s 506(1B): 27.890 s 507(11): 27.890 s 508: 27.1310 s 509: 27.1430 s 509(1): 27.1310 s 509(3): 27.1310 s 509(5): 27.1310 s 509(6): 27.1430 s 510(1A): 27.890 s 513B: 27.1280 ss 513 to 570: 27.1190 ss 514 to 529: 27.1210 ss 531 to 545: 27.1320 s 532(2): 27.1320 s 539: 27.1330 s 553: 27.1330 s 553A: 27.1330 s 555: 27.1330 s 556: 27.1330

s 559: 27.1330 s 560: 27.1330 s 561: 27.1330 s 562: 27.1330 s 563A: 27.1340 s 563AA: 27.1340 s 568: 27.1400 ss 568A to 568F: 27.1400 s 569: 27.1400 s 570: 27.1400 s 588E(3): 27.1370 s 588G: 27.540, 27.600, 27.790 s 588G(1): 27.790 s 588G(2): 27.790 s 588H: 27.790 s 588J: 27.790 s 588M: 27.790 s 588FA: 27.1370 s 588FB: 27.1370 s 588FC: 27.1370 s 588FD: 27.1370 s 588FE: 27.1370 s 588FE(2A): 27.1370 s 588FE(2B): 27.1370 s 588FE(6A): 27.1370 s 588FF: 27.1380 s 588FG: 27.1390 s 588FJ: 27.1400 s 588FGA: 27.1350 s 588FGB: 27.1350 s 600F: 27.1100 s 601AA: 27.50, 27.1420 s 601AB: 27.50, 27.1430 s 601AB(2): 27.1430 s 601AC: 27.1430 s 601AD: 27.1410 s 601AE: 27.1410 s 601AF: 27.1410 s 601AH: 27.1430 s 601CD: 27.210 s 601CE: 27.210 ss 601CF to 601CP: 27.210 s 601CDA: 27.210 s 707: 27.360 s 708: 27.500, 27.652 s 708(11): 27.652 s 709(2): 27.653 s 709(4): 27.653 s 710(1): 27.654 s 711(1): 27.654 s 711(3): 27.654 s 711(6): 27.654 s 714: 27.654 s 715: 27.653 s 715(1): 27.655 s 715(2): 27.655 s 716: 27.655 s 727: 27.652, 27.653 s 728: 27.656 s 729(3): 27.656 s 731(1): 27.656

Table of Statutes

Corporations Act 2001 — cont s 732: 27.655 s 761A: 25.1050, 25.1070 s 764A: 25.1050 s 764A(1): 25.1070 s 916E(2): 25.1050 s 917A: 25.1050 s 917B: 25.1050 s 923(3): 25.1070 s 923(4): 25.1070 s 923B: 25.1070 s 985B(1): 25.1060 s 985B(2): 25.1060 s 985B(3): 25.1060 s 985B(4): 25.1060 s 985B(5): 25.1060 s 1013D(1)(l): 33.130 s 1019B(1): 25.1070 s 1019B(3): 25.1070 s 1019B(5): 25.1070 ss 1042A to 1042H: 27.795 s 1043A: 27.795 ss 1043B to 1043K: 27.795 s 1043L: 27.795 s 1043M: 27.795 s 1070A: 27.510 s 1070C: 27.500 s 1071B: 27.510 s 1071B(8): 27.520 s 1072A: 27.520 s 1072B: 27.520 s 1072C: 27.520 s 1072F: 27.510 s 1072G: 27.250 s 1287A: 27.940 s 1311(1): 25.1070 s 1317H: 27.750 s 1317J: 27.750 s 1317K: 27.750 s 1317M: 27.750 s 1317S: 27.750 Ch 2C: 27.360 Ch 5C: 27.220 Ch 6D: 27.130 Ch 7: 25.960 Pt 1.5: 27.160 Pt 2B.4: 27.230 Pt 2B.6: 27.170 Pt 2J.1, Div 1: 27.640 Pt 2J.1, Div 2: 27.550, 27.640 Pt 2M, Div 3: 27.920 Pt 2M.4: 27.940 Pt 5.1: 27.1430 Pt 5.2: 27.980 Pt 5.7B, Div 2: 27.1360 Pt 7.6: 25.1070 Pt 9.4B: 27.540, 27.640 Pt 9.4AAA: 32.480 Corporations Law: 15.280, 34.430 s 266: 14.560

Corporations Regulations 2001 reg 2A.1.01: 26.150 reg 2A.2.04: 27.200 Courts and Tribunals Legislation Amendment (Administration) Act 2012 : 22.970 Crimes Act 1914: 16.540, 32.170 ss 3E to 3S: 16.540 s 4B: 32.440 s 39: 16.270 Crimes (Aviation) Act 1991: 32.170 Crimes Legislation Amendment (Telecommunications Offences and Other Measures) Act (No 2) 2004: 16.520 Crimes (Traffic in Narcotic Drugs and Psychotropic Substances) Act 1990 s 10: 32.410 Criminal Code Act 1995: 16.460, 32.170, 32.200 Sch (Criminal Code): 16.470, 16.520, 32.170, 32.380 Sch Div 70: 33.120 Sch Div 270: 32.170 Sch s 5.1(1): 32.350 Sch s 6.2(1): 32.410 Sch s 12.3(6): 32.440 Sch s 70.2(1A): 33.120 Sch s 70.3: 33.120 Sch s 70.4(1): 33.120 Sch s 70.5(1): 33.120 Sch s 100.1: 32.550 Sch s 474.17: 16.520 Sch s 477.3: 16.500 Sch s 478.1: 16.510 Sch Ch 9, Pt 9.1: 32.170 Sch Pt 5.3: 32.550 Schedule Schedule: 16.470 Customs Act 1901: 32.170 s 233B(1): 32.327 Designs Act 1906: 30.1570, 30.1740 Designs Act 2003: 30.1570, 30.1580, 30.1610, 30.1620, 30.1680, 30.1690, 30.1700, 30.1710, 30.1720, 30.1730, 30.1740, 30.1760, 30.1770 s 10: 30.1690 s 10(1): 30.1640 s 10(2): 30.1640 s 15(1): 30.1600 s 16(3): 30.1630 s 19: 30.1660 s 21: 30.1590 s 22: 30.1590

s 27(1): 30.1630 s 35: 30.1700 ss 39 to 40: 30.1620 s 45: 30.1620 s 46: 30.1680 s 47: 30.1680 s 63: 30.1620 s 65: 30.1620 s 66: 30.1620 s 67: 30.1620 s 68: 30.1620 s 71(1): 30.1650, 30.1660 s 71(1)(a): 30.1650, 30.1660 s 71(1)(b) to (e): 30.1650 s 71(2): 30.1660 s 71(3): 30.1660 s 72(1): 30.1690 s 72(2): 30.1690 s 72(3): 30.1690 s 72(5): 30.1690 s 73: 30.1650 s 73(3): 30.1620 s 75(1): 30.1670 s 75(2): 30.1670 s 75(3): 30.1670 s 75(4): 30.1670 s 93: 30.1660 Designs (Consequential Amendments) Act 2003: 30.1710 Designs Regulations 2004: 30.1760 Do Not Call Register Act 2006: 17.1390 Electronic Transactions Act 1999: 16.30 s 6: 16.30 s 8: 16.30, 16.40 s 9: 16.50 s 10: 16.60 s 11: 16.70 s 12: 16.90 s 14: 16.100 s 14A: 16.110 s 14B: 16.140 s 15: 16.150 s 15(2): 16.150 Evidence Act 1995: 22.970 s 48: 16.230 s 51: 16.230 Evidence Amendment Act 2008: 22.970 Fair Work Act 2009: , 34.40, 34.60, 34.80, 34.100, 34.105, 34.110, 34.265, 34.300, 34.310, 34.330, 34.420, 34.435, 34.440, 34.470 s 19: 34.440 s 346: 34.330, 34.340 s 417: 34.440

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Fair Work Act 2009 — cont s 422: 34.440 s 424: 34.470 s 431: 34.470 s 487: 34.420 s 512: 34.420 s 513: 34.420 Ch 3: 34.420 Ch 3, Pt 3-1: 34.420 Ch 3, Pt 3-1, Div 6: 34.440 Ch 3, Pt 3-3: 34.440 Ch 3, Pt 3-3, Div 9: 34.440 Pt 3-4: 34.420 Fair Work Amendment Act 2012: 34.110 Fair Work Amendment Act 2013: 34.110 Fair Work (Registered Organisations) Act 2009: 34.80, 34.420 s 27: 34.420 s 140: 34.420 s 141: 34.420 s 142: 34.420 Ch 9: 34.420 Fair Work (Registered Organisations) Amendment Act 2012: 34.420 Family Law Act 1975: 31.470, 31.500 Pt VIIIB: 31.560 Federal Circuit Court of Australia Act 1999: 1.590 Federal Court of Australia Act 1976: 1.580 s 33: 1.570 Financial Sector (Collection of Data) Act 2001: 24.880 s 5(3): 24.880 Financial Sector Reform (Amendments and Transitional Provisions) Act 1998: 24.960 Financial Sector Reform (Consequential Amendments) Act 1998: 24.960 Financial Transaction Reports Act 1988: 24.40, 24.930, 24.940, 24.950 s 16: 24.940 s 31: 24.940 Fringe Benefits Tax Assessment Act 1986: 31.440 Income Tax Assessment Act 1997 s 125.60(4): 18.440

Industrial Relations Act 1988: 34.420 Insolvency Law Reform Act 2016 : 27.1450 Insurance Act 1973: 25.1120 Insurance (Agents and Brokers) Act 1984: 25.1060 s 14(2): 25.1060 Insurance Contracts Act 1984: 10.50, 15.490, 25.10, 25.70, 25.80, 25.90, 25.100, 25.110, 25.120, 25.260, 25.330, 25.340, 25.350, 25.380, 25.430, 25.570, 25.620, 25.660, 25.670, 25.690, 25.730, 25.830, 25.840, 25.845, 25.850, 25.880, 25.890, 25.910, 25.1080, 25.1090, 25.1104, 25.1110, 25.1120, 25.1150, 25.1170 s 7: 25.80 s 8: 15.490 s 9: 25.80 s 9(1): 25.1170 s 9(1)(d): 25.1220 s 11(1): 25.730 s 11(9): 25.200 s 13: 25.610 s 13(1): 25.110 s 13(2): 25.110 s 13(3): 25.760 s 13(4): 25.760 s 14(1): 25.110 s 14A: 25.110 s 16: 25.90 s 17: 25.90 s 18(1): 25.100 s 21: 25.120, 25.140, 25.150, 25.160, 25.270, 25.290, 25.760 s 21(1): 25.120, 25.130, 25.140, 25.150, 25.200, 25.250, 25.260 s 21(1)(a): 25.120 s 21(2): 25.170 s 21(3): 25.170 s 21A: 25.220 s 21A(1): 25.220 s 21A(3): 25.220 s 21A(4): 25.220 s 21A(5): 25.220 s 21B: 25.220 s 21B(3): 25.220 s 21B(4): 25.220 s 21B(5): 25.220 s 21B(6): 25.220 s 21B(7): 25.220 s 21B(11): 25.220 s 22: 25.430 s 22(1)(a): 25.180

s 22(1)(d): 25.180 s 22(3): 25.180 s 22(5): 25.180 s 22(6): 25.180 s 23: 25.330 s 24: 25.340 s 26(1): 25.330 s 26(2): 25.330, 25.410 s 27: 25.330 s 27A: 25.425 s 28(1): 25.240, 25.290, 25.350 s 28(2): 25.260, 25.270, 25.280, 25.290, 25.380, 25.390 s 28(3): 25.210, 25.240, 25.250, 25.260, 25.350, 25.360, 25.370, 25.375, 25.380 s 29: 25.425 s 29(1): 25.300 s 29(2): 25.300, 25.320, 25.400, 25.425 s 29(3): 25.320, 25.400, 25.410, 25.420, 25.425 s 29(4): 25.320, 25.425 s 29(6): 25.425 s 29(8): 25.425 s 29(10): 25.425 s 30: 25.320 s 30(3A): 25.320 s 31: 25.260, 25.320, 25.380, 25.390, 25.420 ss 33A to 33D: 25.1104 ss 34 to 36: 25.670, 25.1100, 25.1147, 25.1180, 25.1200, 25.1210 s 35: 25.430, 25.670, 25.1100 s 37: 25.430, 25.680 ss 37A to 37E: 25.1104 s 37C: 25.1104 s 38: 25.430 s 38(1): 25.430 s 38(2): 25.430 s 40: 25.430 s 43: 25.720 s 44: 25.430, 25.1110 s 45: 25.880 s 46: 25.660 s 47: 25.660 s 48: 10.50, 25.730, 25.760 s 48(1): 25.730, 25.750, 25.755 s 48(2): 25.730 s 48(3): 25.730, 25.740, 25.750 s 48A: 25.765 s 51: 25.760 s 52: 15.490, 25.80 s 54: 25.580, 25.630, 25.650 s 54(1): 25.580, 25.590, 25.600, 25.610, 25.615, 25.630, 25.640 ss 54(2) to (4): 25.620 s 56: 25.690, 25.710, 25.790 s 58: 25.830, 25.840

Table of Statutes

Insurance Contracts Act 1984 — cont s 59: 25.850 s 59A: 25.845 s 59A(2): 25.845 s 59A(5): 25.845 s 60(1): 25.840 s 60(4): 25.840 s 63(1): 25.850 s 65: 25.890 s 66: 25.890, 25.900 s 67: 25.910 s 68: 25.430, 25.910 s 69(2): 25.850 s 75: 25.860 s 76: 25.880 s 910A: 25.960 s 911A: 25.960 s 917A: 25.960 s 917A(1): 25.960 s 917B: 25.960 Pt 2A: 25.1120 Insurance Contracts Amendment Act 2013: 25.10, 25.730, 25.760, 25.845 : 25.425 Insurance Contracts Regulations 1985: 25.670, 25.1100 reg 2B: 25.220 regs 5 to 8: 25.1180 reg 10: 25.1100 reg 11: 25.1107 regs 13 to 16: 25.1107 regs 17 to 20: 25.1147 regs 21 to 24: 25.1200 regs 25 to 28: 25.1210 reg 29C: 25.1104 reg 29D: 25.1100, 25.1104 Insurance (Deposits) Act 1932: 25.1120 Intellectual Property Laws Amendment (Raising the Bar) Act 2012: 30.1780, 30.1900, 30.1910, 30.1920, 30.1960, 30.1970, 30.1980, 30.1990, 30.2115, 30.2450 Sch 6, item 113: 30.2240 Intellectual Property Legislation Amendment (Raising the Bar) Regulation 2013: 30.1780 International Arbitration Act 1974 Pt 2: 1.850 Pt 3: 1.850 Judiciary Act 1903: 1.570 s 23(2)(a): 22.1020 ss 35 to 35A: 1.570 s 39: 1.710

Jurisdiction of Courts (Cross-Vesting) Act 1987: 1.710 Legislation Act 2003 s 38: 1.430 s 42: 1.430 Life Insurance Act 1995: 25.1120 s 200(2)(a): 5.300 s 210: 25.850 s 228: 25.1130 Marine Insurance Act 1909: 25.1220 s 6: 25.1220 s 28: 5.300 Motor Vehicle Standards Act 1989: 19.1010 Mutual Assistance in Criminal Matters Act 1987: 16.460 National Consumer Credit Protection Act 2009: 13.860, 19.10, 19.20, 19.30, 19.40, 19.50, 19.60, 19.90, 19.120, 19.130 s 6: 19.60 s 7: 19.60 s 8: 19.60 s 29(1): 19.130 s 29(2): 19.130 s 29(3): 19.60 s 35: 19.70 s 36: 19.70 s 37(1): 19.70 s 37(2): 19.70 s 40: 19.70 s 41: 19.70 ss 44 to 45: 19.70 s 47: 19.80 ss 49 to 51: 19.80 s 53: 19.80 ss 54 to 55: 19.80 s 80(1)(d): 17.1430 ss 80 to 85: 19.80 ss 88 to 106: 19.80 s 113: 19.110 s 114: 19.110 ss 115 to 120: 19.100 ss 121 to 122: 19.110 ss 123 to 124: 19.100 s 126(1): 19.110 s 126(2): 19.110 s 128: 19.100 s 129: 19.100 s 130: 19.100 s 131: 19.100 s 132: 19.100 s 133: 19.100 s 133AA: 19.110 s 133BA: 19.110 ss 136 to 137: 19.110 ss 138 to 143: 19.100

ss 144 to 145: 19.110 ss 146 to 147: 19.100 s 149: 19.110 ss 151 to 156: 19.100 s 160D: 19.860 ss 166 to 175: 19.130 s 177: 19.130 s 178: 19.120, 19.130 s 179: 19.120 s 180: 19.120 s 180A: 19.120 s 182: 19.130 Pt 3.2A: 19.110 Pt 3.2B: 19.110 Sch 1: 7.970, 19.10, 19.140, 22.660 National Consumer Credit Protection Act 2009 : 33.30 National Consumer Credit Protection Amendment (Home Loans and Credit Cards) Act 2011: 19.40, 19.110 National Consumer Credit Protection Amendment Regulations (No 1) 2012: 19.110 National Consumer Credit Protection Amendment Regulations (No 5) 2011: 19.110 National Consumer Credit Protection Amendment Regulations (No 6) 2011: 19.110 National Consumer Credit Protection Bill 2009: 19.40 National Consumer Credit Protection (Fees) Act 2009: 19.40 National Consumer Credit Protection Regulations 2010: 19.110, 19.230 reg 12: 19.80 reg 24: 19.60 reg 26: 19.100 reg 51: 19.230 reg 52: 19.160, 19.230 reg 55: 19.230 reg 56: 19.230 reg 67: 19.200 reg 81: 19.450 reg 85: 19.470 reg 86: 19.460 reg 88: 19.510 reg 100: 19.860 Form 5: 19.240 Form 8: 19.450 Form 9: 19.450 Form 11: 19.470 Form 12: 19.460

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National Consumer Credit Protection Regulations 2010 — cont Form 14: 19.510 National Consumer Credit Protection (Transitional and Consequential Provisions) Act 2009: 19.40 National Credit Code: 7.970, 19.10, 19.20, 19.140, 19.150, 19.160, 19.170, 19.180, 19.190, 19.200, 19.230, 19.260, 19.280, 19.310, 19.320, 19.330, 19.340, 19.400, 19.410, 19.420, 19.430, 19.450, 19.490, 19.530, 19.540, 19.570, 19.660, 19.700, 19.710, 19.750, 19.870, 19.880, 19.890, 19.1040, 20.250, 22.660 s 1: 19.890 s 2: 19.890 s 3: 19.890 s 3(1): 19.160 s 4: 19.160, 19.890 s 5: 19.890 s 5(1): 19.160 s 5(1)(a): 19.160, 19.170 s 5(1)(b): 19.180 s 5(1)(c): 19.210 s 5(1)(d): 19.220 s 5(3): 19.180 s 5(4): 19.190 s 6: 19.230, 19.890 s 6(9): 19.230 s 6(11): 19.230 s 6(13): 19.230 ss 6(14) to (18): 19.230 s 7: 19.890 s 7(8): 19.590 s 7(10): 19.230 s 8: 19.890 s 9: 19.890 s 10: 19.890 s 11: 19.890 s 12: 19.890 s 13: 19.890 s 13(2): 19.200 s 13(3): 19.200 s 14: 19.250, 19.890 s 14(2): 19.250 s 15: 19.250, 19.890 s 16: 19.240, 19.890 s 17: 19.260, 19.330, 19.890 ss 17(3) to (6): 19.330 s 17(8) to (9): 19.330 s 17(11): 19.330 s 17(15): 19.330 s 18: 19.280, 19.890 s 19: 19.890 s 20: 19.890 s 20(1): 19.290 s 20(2): 19.290

s 21: 19.300, 19.890 s 22: 19.400, 19.890 s 23: 19.310, 19.890 s 23(1): 19.330 s 24: 19.400, 19.890 s 25: 19.890 s 26: 19.890 s 26A: 19.890 s 27: 19.890 s 28: 19.890 s 29: 19.890 s 30: 19.890 s 30A: 19.890 s 31: 19.890 s 32: 19.890 s 33: 19.400, 19.890 s 34: 19.890 s 35: 19.890 s 36: 19.890 s 37: 19.890 s 38: 19.890 s 39: 19.890 s 40: 19.890 s 41: 19.890 s 42: 19.420, 19.890 s 43: 19.420, 19.890 s 44: 19.890 s 44(1): 19.420 s 44(2): 19.420 s 45: 19.420, 19.890 s 46: 19.420, 19.890 s 47: 19.890 s 48: 19.420, 19.890 s 49: 19.420, 19.890 s 50: 19.430, 19.600, 19.890 s 50(7): 19.430 s 51: 19.440, 19.890 s 52: 19.440, 19.890 s 53: 19.890 s 54: 19.890 s 55: 19.450, 19.890 s 56: 19.450, 19.890 s 57: 19.450, 19.890 s 58: 19.450, 19.890 s 59: 19.450, 19.890 s 60: 19.890 s 60(1): 19.450 s 60(2): 19.450 s 60(3): 19.450 s 60(5): 19.450 s 61: 19.450, 19.890 s 62: 19.890 s 63: 19.890 s 64: 19.890 ss 64 to 68: 19.400 s 65: 19.890 s 66: 19.890 s 67: 19.890 s 68: 19.890 s 69: 19.890 s 70: 19.890

s 71: 19.890 s 72: 19.890 s 72(1): 19.570 s 72(2): 19.570 s 72(3): 19.570 ss 72 to 75: 19.570 s 73: 19.890 s 74: 19.570, 19.890 s 75: 19.890 s 76: 19.510, 19.890 s 76(1): 7.970, 19.590 s 76(2): 19.600 s 76(4): 19.600 s 76(6): 19.600 ss 76 to 81: 19.230 s 77: 19.610, 19.890 s 78: 19.600, 19.890 s 78(1): 19.640 ss 78(2) to (4): 19.640 s 79: 19.650, 19.890 s 80: 19.890 s 80(1): 19.610 s 80(2): 19.640 s 81: 19.890 s 82: 19.890 s 82(1): 19.550 s 82(2): 19.550 s 83: 19.550, 19.890 s 84: 19.890 s 85: 19.890 ss 85(1) to (4): 19.540 s 85(5): 19.540 s 85(6): 19.540 s 85(7): 19.540 s 85(8): 19.540 s 85(9): 19.540 s 86: 19.540, 19.890 s 87: 19.470, 19.890 s 88: 19.890 s 88(1): 19.460 s 88(2): 19.460 s 88(3): 19.460 s 88(5): 19.460 s 89: 19.460, 19.890 s 90: 19.560, 19.890 s 91: 19.890 s 91(1): 19.500 s 91(2): 19.500 s 92: 19.890 s 93: 19.890 s 94: 19.480, 19.890 s 95: 19.890 s 96: 19.480, 19.510, 19.890 s 97: 19.890 s 98: 19.500, 19.890 s 99: 19.890 ss 99 to 101: 19.500 s 100: 19.890 s 101: 19.890 s 102: 19.890 s 102(1): 19.510

Table of Statutes

National Credit Code — cont s 102(2): 19.510 s 102(3): 19.510 s 102(4): 19.510 s 103: 19.510, 19.890 s 104: 19.890 s 104(1): 19.520 s 104(2): 19.520 s 104(3): 19.520 s 105: 19.520, 19.890 s 106: 19.520, 19.890 s 107: 19.890 s 108: 19.890 ss 108 to 110: 19.530 s 109: 19.890 s 110: 19.890 s 111: 19.330, 19.890 s 111(1): 19.330 s 111(2): 19.330 ss 111 to 123: 19.320 s 112: 19.890 s 112(1): 19.340 s 112(2): 19.350 s 112(3): 19.350 s 113: 19.890 s 113(1): 19.340 s 113(2): 19.340 s 113(3): 19.370 s 113(4): 19.370 s 114: 19.350, 19.890 s 114(1)(b): 19.350 s 115: 19.890 s 115(1): 19.350 s 116: 19.360, 19.890 s 117: 19.360, 19.890 s 118: 19.350, 19.890 s 119: 19.890 s 120: 19.890 s 121: 19.890 s 122: 19.890 s 123: 19.320, 19.890 s 124: 19.890 s 125: 19.890 s 126: 19.890 s 127: 19.890 s 127(1): 19.680 s 127(2): 19.690 s 127(3): 19.670 s 128: 19.700, 19.890 s 129: 19.890 s 129(1): 19.710 s 129(2)(a): 19.720 s 129(2)(b): 19.720 s 129(2)(c): 19.720 s 130: 19.890 s 130(2): 19.720 s 130(3): 19.720 s 130(4): 19.730 s 130(5): 19.730 s 130(6): 19.730 s 131: 19.730, 19.740, 19.890

s 132: 19.890 s 133: 19.890 s 134: 19.740, 19.890 s 135: 19.890 s 135(1): 19.750 s 135(2): 19.770 s 135(3): 19.770 s 135(5): 19.770 s 135(6): 19.770 s 135(7): 19.770 s 136: 19.890 s 137: 19.770, 19.890 s 138: 19.770, 19.890 s 139: 19.890 s 140: 19.890 s 141: 19.890 s 142: 19.890 ss 142 to 149: 19.780 s 143: 19.780, 19.890 s 144: 19.890 s 145: 19.780, 19.890 s 146: 19.780, 19.890 s 147: 19.890 s 148: 19.550, 19.780, 19.890 s 149: 19.890 s 150: 19.860, 19.890 s 150(1): 19.860 s 151: 19.890 s 152: 19.890 s 153: 19.890 s 154: 19.890 s 155: 19.890 s 156: 19.890 s 157: 19.890 s 157(3): 19.860 s 158: 19.860, 19.890 s 159: 19.890 s 160: 19.860, 19.890 s 161: 19.890 s 162: 19.860, 19.890 s 163: 19.890 s 164: 19.890 s 164(2): 19.860 s 164(3): 19.860 s 165: 19.890 s 166: 19.890 s 167: 19.890 s 168: 19.890 s 169: 19.890 s 170: 19.890 s 171: 19.890 s 172: 19.890 s 173: 19.890 s 174: 19.890 s 175: 19.890 s 176: 19.890 s 177: 19.890 s 178: 19.890 s 179: 19.890 s 180: 19.890 s 181: 19.890

s 182: 19.890 s 183: 19.890 s 184: 19.890 s 185: 19.890 s 186: 19.890 s 187: 19.890 s 188: 19.890 s 189: 19.890 s 190: 19.890 s 191: 19.890 s 191(1): 19.870 s 191(3): 19.870 s 192: 19.870, 19.890 s 193: 19.880, 19.890 s 194: 19.890 s 195: 19.890 s 196: 19.890 s 197: 19.890 s 198: 19.890 s 199: 19.890 s 200: 19.890 s 201: 19.890 s 202: 19.890 s 203: 19.890 s 203A: 19.890 s 203B: 19.890 s 204: 19.890 s 204(1): 7.970 s 205: 19.890 s 206: 19.890 s 207: 19.890 s 208: 19.890 s 209: 19.890 s 210: 19.890 s 211: 19.890 s 212: 19.890 s 213: 19.890 s 214: 19.890 s 215: 19.890 s 216: 19.890 s 217: 19.890 s 218: 19.890 Pt 4, Div 3: 19.230 Pt 5, Div 3: 19.230 Sch 1, Pt 13, s 204: 19.330 National Security Information (Criminal and Civil Proceedings) Act 2004: 32.550 Native Title Act 1993: 22.920, 22.930, 22.960, 22.970, 22.980, 22.990, 22.1000, 22.1050, 22.1060, 22.1090, 22.1110, 22.1140, 22.1160, 22.1170, 22.1180, 22.1280, 22.1290 s 11(1): 22.1000 s 13: 22.970 s 15: 22.1070, 22.1080 s 15(1): 22.1080 s 19: 22.930 s 21: 22.1090

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Native Title Act 1993 — cont s 22B: 22.1100 s 23A: 22.1120, 22.1130 s 23B: 22.1120 s 23C: 22.1120 s 23F: 22.1130 s 23G: 22.1130 s 24AA(2): 22.1180 s 24AB(1): 22.1280 s 24BA: 22.1280 ss 24BA to 24EB: 22.1180 ss 24GA to 24GE: 22.1180 s 24GD: 22.1180 s 24HA: 22.1180 s 24IA: 22.1180 ss 24IA to 24IB: 22.1180 s 24IC: 22.1180 s 24ID: 22.1180 ss 24JA to 24JB: 22.1180 s 24KA: 22.1180 s 24LA: 22.1180 s 24MD(3): 22.1140 s 24NA: 22.1180 s 24JAA: 22.1180 s 25: 22.990, 22.1190 s 26: 22.990, 22.1190 s 26(1)(a): 22.1180 s 26(1)(c): 22.1190 s 26(1A): 22.1180, 22.1190 s 26(2): 22.1280 s 26A: 22.1190 s 26B: 22.1190 s 26C: 22.1190 s 26D: 22.1180, 22.1190 s 27: 22.1190 s 27A: 22.1190 s 27B: 22.1190 s 28: 22.1190, 22.1240 s 29: 22.990, 22.1190 s 29(1): 22.1210 s 29(2): 22.1210 s 29(3): 22.1210 s 30: 22.990 s 30A: 22.1210, 22.1230 s 31: 22.1230 s 31(1)(b): 22.1240 s 31(3): 22.1240 s 33(1): 22.1220 s 35: 22.1240 s 36(2): 22.1240 s 36(3): 22.1240 s 36(4): 22.1240 s 36A: 22.1240 s 36B: 22.1240 s 36C: 22.1240, 22.1260 s 38: 22.1260 s 38(2): 22.1220 s 39: 22.1250 s 40: 22.1240 s 41: 22.1240, 22.1260 s 41A: 22.1240

s 42: 22.1270 s 47: 22.1150 s 51A: 22.1290 s 61: 22.970, 22.990 s 62: 22.990 s 62(1)(b) to (c): 22.980 s 62(2)(e): 22.980 s 63: 22.990 s 81: 22.970 ss 86A to 86E: 22.970 s 186(1): 22.990 s 190A: 22.990 s 190B: 22.990 s 190B(7)(a): 22.990 s 190B(7)(b): 22.990 s 211: 22.960 s 223: 22.950, 22.960, 22.980 s 223(1): 22.950, 22.980 s 223(1)(a): 22.980 s 223(1)(b): 22.980 s 223(1)(c): 22.980 s 226: 22.1180 s 227: 22.1180 s 228: 22.1070 s 229: 22.1080 s 230: 22.1080 s 231: 22.1080 s 232: 22.1080 s 232A: 22.1090 s 232B: 22.1100 s 232C: 22.1100 s 232D: 22.1100 s 232E: 22.1100 s 233: 22.1180 s 233(1)(a): 22.1180 s 233(1)(b): 22.1180 s 233(2): 22.1180 s 238: 22.1140 s 253: 22.990, 22.1170, 22.1190 Pt 2, Div 2B: 22.1110 Pt 2, Div 3: 22.1160 Pt 2, Div 3, subdiv B: 22.1280 Pt 2, Div 3, subdiv C: 22.1280 Pt 2, Div 3, subdiv D: 22.1280 Pt 2, Div 3, subdiv E: 22.1280 Pt 2, Div 5: 22.1290 Native Title Amendment Act 1998: 22.920 Native Title Amendment Act 2009: 22.970 s 86A(1): 22.970 s 87: 22.970 ss 87 to 87A: 22.970 s 94A: 22.970 s 225: 22.970 Native Title Amendment Act 2010: 22.1180 Native Title Amendment Bill 2009: 22.970

Patent Regulations 1991: 30.1940 reg 19.1: 30.2140 Patents Act 1952: 30.1820, 30.1900 Patents Act 1990: 30.1780, 30.1870, 30.1890, 30.1900, 30.1920, 30.1930, 30.1960, 30.1990, 30.2000, 30.2010, 30.2030, 30.2040, 30.2100, 30.2115, 30.2130, 30.2140, 30.2150 s 7(1): 30.1890 s 7(1)(a): 30.1890 s 7(2): 30.1900 s 7(3): 30.1900 s 7(4): 30.2080 s 7A: 30.1910 s 9: 30.1920 s 13(1): 30.2100 s 13(2): 30.2100 s 14: 30.2100 s 15: 30.1930 s 15(1): 30.2150 s 15(1)(b): 30.2150 s 18: 30.2130 s 18(1): 30.1800, 30.1820 s 18(1)(a): 30.2000, 30.2010, 30.2030 s 18(1)(b): 30.2000, 30.2030 s 18(1)(b)(i): 30.1870 s 18(1)(b)(ii): 30.2080 s 18(1)(c): 30.2000, 30.2010, 30.2030 s 18(1A)(a): 30.2080 s 18(1A)(b): 30.2080 s 18(1A)(b)(ii): 30.2080 s 18(1A)(c): 30.2080 s 18(2): 30.1840 s 18(3): 30.2080 s 18(4): 30.2080 s 20(1): 30.2130 s 23: 30.1990 s 24(1): 30.1890 s 29(1): 30.1940 s 29(2): 30.1940 s 29(3): 30.1940, 30.1960 s 29(4): 30.1940, 30.1970 s 38: 30.1960 s 40(1): 30.1960 s 40(2): 30.1970, 30.2020, 30.2030, 30.2070, 30.2130 s 40(2)(c): 30.2080 s 40(3): 30.1980, 30.2020, 30.2030, 30.2070, 30.2130 s 40(4): 30.1980, 30.2070 s 43(2)(b): 30.1990 s 44(1): 30.2000 s 44(2): 30.2000 s 45: 30.2000 s 49(1): 30.2010 s 49(5): 30.2010 s 49(6)(b): 30.2010

Table of Statutes

Patents Act 1990 — cont s 52: 30.2060 s 54(1): 30.2010 s 54(3): 30.2010 s 57: 30.2120 s 59: 30.2020 s 60: 30.2020 s 60(3A): 30.2020 s 60(4): 30.2020 s 65: 30.1790, 30.2040 s 67: 30.1790, 30.2040 s 68: 30.1790, 30.2090 ss 70 to 79: 30.2040 s 75(1): 30.2040 s 75(4): 30.2040 s 97(1): 30.2030 s 97(2): 30.2030 s 97(3): 30.2030 s 97(3A): 30.2030 s 98: 30.2030 s 100A(1): 30.2030 s 101(1): 30.2030 s 101A: 30.2070 s 101B: 30.2070 s 101E: 30.2070 s 101F: 30.2070 s 101G: 30.2070 s 101J: 30.2070 s 104: 30.2000 s 117: 30.2100 s 119A: 30.2115 s 119B: 30.2115 s 119C(1): 30.2115 s 119C(2): 30.2115 s 120: 30.2120 s 120(1A): 30.2070 s 121: 30.2130 s 122(1): 30.2120 s 123: 30.2120 ss 133 to 136: 30.2100 s 138: 30.2130 s 142(1): 30.1960 s 142(2): 30.2000 ss 186 to 187: 30.2140 s 188: 30.2140 s 190: 30.2140 Sch 1: 30.1880, 30.2100 Patents Amendment (Innovation Patents) Act 2000: 30.2050 Patents Regulations 1991: 30.1780, 30.2020 reg 1.6: 30.1920 regs 2.2 to 2.2D: 30.1890 reg 3.10: 30.1960 reg 3.15: 30.2000 reg 3.16: 30.2000 reg 4.2(2): 30.2010 reg 4.2(3): 30.2010 reg 5.4(1): 30.2020 regs 5.5 to 5.26: 30.2020

reg 6.2: 30.2040 Personal Property Securities Act 2009: 14.600, 14.750, 19.10, 19.900, 19.910, 19.920, 19.930, 19.970, 19.980, 19.1000, 19.1020, 19.1030, 19.1040, 19.1050, 22.300 s 8(1)(b): 19.930 s 8(1)(j): 19.930 s 9: 19.930 s 10: 19.990, 19.1000 s 12(1): 19.930 s 12(2): 19.930 s 12(3): 19.930 s 19(1): 19.940 s 19(2): 19.940 s 20: 19.950 s 21: 19.960 s 31: 19.940 s 33: 19.940 s 43: 19.1010 s 44: 19.1010 s 45(1): 19.1010 s 45(2): 19.1010 s 45(3): 19.1010 s 45(4): 19.1010 s 46: 19.1010 s 47: 19.1010 s 49: 19.1010 s 53: 19.1020 s 55(2): 19.980 s 55(3): 19.980 s 55(4): 19.980 s 55(5): 19.980 s 57(1): 19.980 s 62: 19.990 ss 84 to 86: 19.1000 ss 88 to 97: 19.1000 ss 99 to 103: 19.1000 ss 105 to 106: 19.1000 ss 108 to 144: 19.1030 s 111: 19.1030 s 115: 19.1030 s 116: 19.1030 s 119: 19.1040 s 119(2): 19.1040 s 147: 19.1050 s 150: 19.1050 s 153: 19.1050 ss 170 to 173: 19.1050 s 171: 19.1050 s 267: 19.960, 19.1050 s 268: 19.960, 19.1050 s 367A: 19.1050 Personal Property Securities Regulations 2010 reg 1.17: 19.1010 reg 2.1: 19.1010 reg 2.2: 19.1010 reg 4.1: 19.1040

Plant Breeder’s Rights Act 1994: 30.1860 s 22: 30.1860 Privacy Act 1988: 16.450 s 6C: 16.450 s 6D: 16.450 s 7B(3): 16.450 s 7B(4): 16.450 s 13: 16.450 Sch 1: 16.450 Proceeds of Crime Act 1987: 24.940 Proceeds of Crime Act 2002: 31.50 Racial Discrimination Act 1975: 22.910, 22.930, 22.1000, 22.1070, 22.1290 s 9: 22.930 s 10: 22.930, 22.1000 Resale Royalty Right for Visual Artists Act 2009: 30.1540 Safety, Rehabilitation and Compensation Act 1988: 34.410, 34.415 Social Security Act 1991: 31.440 Spam Act 2003: 16.550 s 16: 16.550 s 17: 16.550 s 18: 16.550 ss 20 to 22: 16.550 Sch 1, cl 2: 16.550 Sch 2, cl 4: 16.550 Statute of Westminster Adoption Act 1942: 1.470 s 2: 1.470 Telecommunications Act 1997: 16.460, 16.520 s 7: 16.520 Telecommunications (Interception and Access) Act 1979: 16.460, 16.470 Therapeutic Goods Act 1989 s 42DL(1)(f): 33.120 Tobacco Advertising Prohibition Act 1992 s 13: 33.120 s 15: 33.120 Tobacco Plain Packaging Act 2011: 33.120 Trade Mark Regulations 1995 reg 5.1: 30.2280 Trade Marks Act 1955: 30.2190 Trade Marks Act 1995: 16.340,

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Trade Marks Act 1995 — cont 30.2180, 30.2190, 30.2200, 30.2220, 30.2260, 30.2290, 30.2370, 30.2410, 30.2470, 30.2500, 30.2520, 30.2530, 30.2540, 30.2690 s 8: 30.2460 s 10: 30.2400 s 17: 30.2370 s 19: 30.2210 s 19(2): 30.2210 s 20: 30.2200 s 21: 30.2200 s 26(1): 30.2460 s 26(2): 30.2460 s 27(1): 30.2210 s 27(5): 30.2210 s 31: 30.2210 s 33: 30.2210 s 34: 30.2210 s 35: 30.2210 s 39: 30.2270 s 40: 30.2230 s 41: 30.2240, 30.2245 s 41(1): 30.2240 s 41(2): 30.2240 s 41(3): 30.2240 s 41(4): 30.2240 s 42: 30.2270 s 43: 30.2250 s 44(1): 30.2260 s 44(2): 30.2260 s 44(3): 30.2260 s 44(4): 30.2260 s 52: 30.2280 s 54: 30.2280 s 55: 30.2280 s 56: 30.2280 s 58: 30.2290, 30.2300 s 59: 30.2310 s 60: 30.2320, 30.2325 s 61: 30.2330 s 62: 30.2340 s 62A: 30.2345 s 71: 30.2350 s 72(3): 30.2350 s 73: 30.2350 s 77: 30.2350 s 85: 30.2360 s 88(1): 30.2360 s 88(2): 30.2360 s 89: 30.2367 s 92: 30.2370 s 92(4): 30.2457 s 92(4)(a): 30.2370 s 92(4)(b): 30.2370 s 93(2): 30.2370 s 94: 30.2370 s 96: 30.2370 s 106: 30.2510 s 109: 30.2510

s 113: 30.2520 s 117: 30.2520 s 120(1): 30.2380 s 120(2): 30.2400 s 120(3): 16.340 s 120(4): 16.340 s 122: 30.2410 s 123: 30.2410, 30.2420, 30.2423, 30.2425 s 124: 30.2430 s 126: 30.2450 s 126(1): 30.2450 s 126(2): 30.2450 s 127: 30.2457 ss 131 to 143: 30.2530 s 132: 30.2460 s 145: 30.2540 s 146: 30.2540 s 148: 30.2540 s 149: 30.2540 s 162: 30.2480 s 164: 30.2480 s 166: 30.2480 s 167: 30.2480 s 169: 30.2490 s 173: 30.2490 s 174: 30.2490 s 175: 30.2490 s 180: 30.2490 s 185: 30.2500 Trade Marks Regulations 1995 reg 4.15: 30.2270 Sch 1: 30.2210 Trade Practices Act 1974: 1.30, 1.670, 7.680, 7.960, 8.490, 8.500, 9.100, 9.290, 13.590, 14.10, 15.20, 15.480, 16.340, 17.10, 17.20, 17.1040, 18.10, 19.660, 20.250, 21.230, 21.300, 21.480, 24.40, 28.320, 30.2630, 30.2690, 30.2790, 30.2800, 33.30, 34.420, 34.440, 34.480 s 4M: 8.490, 8.510 s 45(2): 18.130 s 45(2)(b)(i): 18.130 s 45A: 18.90 s 45D: 34.490 s 51AA: 17.220 s 51AB: 17.250 s 52: 8.100, 13.590, 16.350, 16.360, 16.365, 17.40, 17.50, 17.60, 17.131, 17.140, 17.150, 17.160, 17.750, 17.760, 17.820, 17.840, 24.40, 25.1020, 28.320, 30.2630, 30.2800 s 52(1): 17.80, 17.90, 17.100, 17.110, 17.120, 17.910 s 53(c): 16.360 s 53(d): 16.360

s 53(e): 17.350 s 53(g): 17.360 s 53A: 17.420 s 53A(1)(b): 17.410 s 53(eb): 17.690 s 56(1): 17.540 s 56(2): 17.540 s 59(2): 17.440 s 71: 17.1060 s 75B: 17.840 s 75AZC(1)(g): 17.370 s 76D: 18.90 s 80(1): 17.740 s 82: 17.790, 17.800, 17.810, 17.820, 17.910 s 82(1): 17.820 s 87: 8.100, 17.790, 17.910 Pt IV: 8.510 Pt VI: 30.2790 Trade Practices Act 1974 s 74(1): 28.80 Trade Practices Amendment (Cartel Conduct and Other Measures) Act 2009: 18.90 Trade Practices Legislation Amendment Act 2008: 18.290 US Free Trade Agreement Implementation Act 2004: 30.1260, 30.1410 Uniform Consumer Credit Code: 19.20, 19.30, 19.40, 19.140, 19.190, 19.370, 19.380, 19.390, 19.570, 19.610, 19.630, 19.890 s 1: 19.890 s 3: 19.890 s 4: 19.890 s 5: 19.890 s 6: 19.890 s 7: 19.890 s 8: 19.890 s 9: 19.890 s 10: 19.890 s 10A: 19.890 s 10B: 19.890 s 10C: 19.890 s 11: 19.890 s 11(2): 19.200 s 12: 19.890 s 13: 19.890 s 14: 19.890 s 15: 19.890 s 16: 19.890 s 17: 19.890 s 18: 19.890 s 19: 19.890 s 20: 19.890 s 21: 19.890 s 22: 19.890

Table of Statutes

Uniform Consumer Credit Code — cont s 23: 19.890 s 24: 19.890 s 25: 19.890 s 26: 19.890 s 27: 19.890 s 28: 19.890 s 29: 19.890 s 30: 19.890 s 31: 19.890 s 32: 19.890 s 33: 19.890 s 34: 19.890 s 35: 19.890 s 36: 19.890 s 36A: 19.890 s 37: 19.890 s 38: 19.890 s 39: 19.890 s 40: 19.890 s 41: 19.890 s 42: 19.890 s 43: 19.890 s 44: 19.890 s 45: 19.890 s 46: 19.890 s 47: 19.890 s 48: 19.890 s 49: 19.890 s 50: 19.890 s 51: 19.890 s 52: 19.890 s 53: 19.890 s 54: 19.890 s 55: 19.890 s 56: 19.890 s 57: 19.890 s 58: 19.890 s 59: 19.890 s 60: 19.890 s 61: 19.890 s 62: 19.890 s 63: 19.890 s 63A: 19.890 s 64: 19.890 s 65: 19.890 s 66: 19.890 s 67: 19.890 s 68: 19.890 s 69: 19.890 s 70: 19.890 s 71: 19.890 s 72: 19.890 s 73: 19.890 s 74: 19.890 s 75: 19.890 s 76: 19.890 s 77: 19.890 s 78: 19.890 s 79: 19.890

s 80: 19.890 s 81: 19.890 s 82: 19.890 s 83: 19.890 s 84: 19.890 s 85: 19.890 s 86: 19.890 s 87: 19.890 s 88: 19.890 s 89: 19.890 s 90: 19.890 s 91: 19.890 s 92: 19.890 s 93: 19.890 s 94: 19.890 s 95: 19.890 s 96: 19.890 s 97: 19.890 s 98: 19.890 s 99: 19.890 s 100: 19.890 s 101: 19.890 s 102: 19.890 s 103: 19.890 s 104: 19.890 s 105: 19.890 s 106: 19.890 s 107: 19.890 s 110: 19.890 s 111: 19.890 s 112: 19.890 s 113: 19.890 s 113A: 19.890 s 114: 19.890 s 115: 19.890 s 116: 19.890 s 117: 19.890 s 118: 19.890 s 119: 19.890 s 120: 19.890 s 121: 19.890 s 122: 19.890 s 123: 19.890 s 124: 19.890 s 125: 19.890 s 126: 19.890 s 127: 19.890 s 128: 19.890 s 129: 19.890 s 130: 19.890 s 131: 19.890 s 132: 19.890 s 133: 19.890 s 134: 19.890 s 135: 19.890 s 136: 19.890 s 137: 19.890 s 138: 19.890 s 139: 19.890 s 140: 19.890 s 141: 19.890

s 142: 19.890 s 143: 19.890 s 144: 19.890 s 145: 19.890 s 146: 19.890 s 146A: 19.890 s 146B: 19.890 s 146C: 19.890 s 146E: 19.890 s 146F: 19.890 s 146G: 19.890 s 146H: 19.890 s 146I: 19.890 s 146J: 19.890 s 146R: 19.890 s 146S: 19.890 s 146T: 19.890 s 147: 19.890 s 148: 19.890 s 149: 19.890 s 150: 19.890 s 151: 19.890 s 152: 19.890 s 153: 19.890 s 154: 19.890 s 155: 19.890 s 156: 19.890 s 157: 19.890 s 158: 19.890 s 159: 19.890 s 160: 19.890 s 161: 19.890 s 162: 19.890 s 163: 19.890 s 164: 19.890 s 164A: 19.890 s 166: 19.890 s 167: 19.890 s 168: 19.890 s 169: 19.890 s 169A: 19.890 s 170: 19.890 s 171: 19.890 s 172: 19.890 s 173: 19.890 s 174: 19.890 s 175: 19.890 s 176: 19.890 s 182A: 19.890 s 183: 19.890 s 184: 19.890 Sch 1: 19.890 Sch 2, s 2: 19.890 Sch 2, s 4: 19.890 Sch 2, s 5: 19.890 Sch 2, s 13: 19.890 Sch 2, s 14: 19.890 Sch 2, s 16: 19.890 Sch 2, s 20: 19.890 Sch 2, s 21: 19.890 Sch 2, s 23: 19.890

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Uniform Consumer Credit Code — cont Sch 2, s 24: 19.890 Sch 2, s 25: 19.890 Sch 2, s 29: 19.890 Sch 2, s 30: 19.890 Venture Capital Act 2002: 26.650 Volunteers Protection Act 2003: 28.80 Work Health and Safety Act 2011: 34.390 Workplace Relations Act 1996: 34.20 Workplace Relations Amendment (Registration and Accountability of Organisations) Act 2002: 34.420 Workplace Relations Amendment (Transition to Forward with Fairness) Act 2008: 34.70 Workplace Relations Amendment (Work Choices) Act 2005: 34.40

AUSTRALIAN CAPITAL TERRITORY ACT Civil and Administrative Tribunal Act 2008: 1.700 s 18: 1.690 Age of Majority Act 1974 s 5: 6.20 Agents Act 2003 s 18: 13.860 s 22: 13.860 Bail Act 1992 : 32.270 Civil Law (Property) Act 2006: 22.870 s 201(2): 29.310 s 204(1): 5.330 s 205: 10.160 s 219(1): 5.180 s 507: 5.320, 5.340 Sch 3: 5.340 Civil Law (Wrongs) Act 2002: 7.670, 28.80, 28.850 s 3: 28.570 s 40: 28.80 s 41: 28.80 s 43(1): 28.390 s 43(2): 28.390 s 44: 28.450 s 45(1)(a): 28.500 s 45(1)(b): 28.510

ss 95 to 96: 28.160, 28.560 s 96: 28.570 s 98: 28.80 s 99: 28.80 s 102: 12.250, 28.560 s 110: 28.170 s 113: 28.80, 28.170 s 118(2): 28.850 s 120: 28.850 s 132: 28.940 s 134: 28.860 s 135: 28.870 s 136: 28.870 s 137: 28.880 s 138: 28.890 s 139: 28.890 s 139A(1): 28.900 s 139A(3): 28.900 s 139B: 28.910 s 139D: 28.920 s 139E: 28.950 s 139F: 28.950 s 139G: 28.950 s 139H: 28.950 s 139I: 28.950 s 144: 21.650 s 145(1): 21.650 s 145(2): 21.650 s 149(2): 21.650 s 151(2): 21.650 s 151(3): 21.650 s 152(1): 21.650 s 152(2): 21.650 s 154(1): 21.650 s 154(2): 21.650 ss 172 to 179: 7.670 s 174(3): 7.670 s 221(2)(a): 8.270 Ch 8: 28.80, 28.120, 28.170, 28.250 Ch 11: 21.650 Pt 2.2: 28.80 Pt 2.2A: 28.80 Pt 3.2: 28.90 Pt 9.3, Div 1: 28.940 Pt 11.2: 21.450 Sch 1: 21.650 Civil Law (Wrongs) Amendment Act 2006: 28.850 Civil Procedure Rules 2006: 26.340 Commercial Arbitration Act 1986: 1.850 Courts Legislation Amendment Act 2015 : 1.950 Crimes Act 1900 s 49C: 32.440 s 49D: 32.440

Criminal Code 2002: 32.190, 32.200 s 25: 32.430 s 26: 32.430 s 706: 16.270 Electronic Transactions Act 2001: 16.30 s 7: 16.40 s 8: 16.50 s 9: 16.60 s 10: 16.70 s 11: 16.90 s 13: 16.100 s 13A: 16.110 s 13B: 16.140 s 14: 16.150 s 14(2): 16.150 Evidence Act 2011 s 48: 16.230 s 51: 16.230 Fair Trading Act 1992 s 15A: 14.1110 Fair Trading (Australian Consumer Law) Act 1992 s 7(1): 17.20 Fair Trading (Australian Consumer Law) Amendment Act 2010 Sch 1, Item 1.6: 14.1110 Fair Trading Legislation Amendment Act 2001 s 27: 14.390 Financial Sector Reform (ACT) Act 1999: 24.960 Human Rights Commission Act 2005 s 54: 1.900 s 67: 1.900 Imperial Acts (Substituted Provisions) Act 1986 s 3(1): 5.320, 5.340 Justice and Community Safety Legislation Amendment Act 2014 Sch 1 Pt 1.1 item 1.3: 13.860 Land Titles Act 1925: 22.490, 22.800 Law Reform (Miscellaneous Provisions) Act 1955 s 15: 28.560 Law Reform (Miscellaneous Provisions) Act 1999 Sch 3: 5.320, 5.340 Law Reform (Misrepresentation) Act 1977: 7.670

Table of Statutes

Legal Profession Act 2006 s 283: 8.270 Legislation Act 2001: 1.350 s 73(1): 1.220 s 139: 1.360 s 142: 1.370 Limitation Act 1985: 12.410 s 11(1): 12.410 s 13: 12.410 ss 23 to 24: 12.410

Pt 6: 26.10, 26.650 Perpetuities and Accumulations Act 1985 s 8: 29.330 s 19 : 29.340 Prostitution Act 1992 : 25.250 Public Interest Disclosure Act 2012: 32.480

Magistrates Court Act 1930 s 257: 1.630

Road Transport (General) Act 1999 s 162: 25.1170

Married Persons Property Act 1986 s 3: 6.190 s 5: 13.190

Sale of Goods Act 1954: 14.10 s 2: 14.180 s 3: 14.400, 14.1030 s 5: 14.30, 14.140, 14.870 s 6: 14.20 s 7: 14.70 s 7(2): 6.180 s 7(3): 6.40 s 11: 7.90, 14.160, 14.610 s 12: 14.160, 14.610 s 13: 14.170 s 14: 14.170 s 15: 14.210 s 16: 14.400 s 17: 14.230 s 18: 14.240, 14.260 s 19: 14.270, 14.290 s 20: 14.380 ss 21 to 22: 14.440 s 23: 14.440 s 24: 14.540 s 25: 14.610 s 26: 14.640 s 27: 14.680 s 29: 14.700, 14.710 s 31: 14.760 ss 31 to 32: 14.830 s 32: 14.170, 14.760 s 33: 14.770 s 34: 14.790 s 35: 14.800 s 36: 14.770, 14.820 s 38: 14.830 s 38(1): 14.830 s 39: 14.830 s 40: 14.830 s 42: 14.850 s 43: 14.880 ss 44 to 46: 14.870 s 47: 14.890 s 48: 14.900 s 49: 14.910 s 50: 14.910, 14.920 s 51: 14.930 s 52: 14.960 s 53: 14.970 s 54: 14.1090

Mediation Act 1997 s 12: 1.950 Native Title Act 1994: 22.930 Partnership Act 1963: 26.10 s 4: 26.30 s 5: 26.10 s 6: 26.30 s 7: 26.80, 26.130 s 8: 26.190 s 9: 26.350 s 11: 26.370 s 12: 26.370 s 13: 26.380 s 14: 26.440 s 15: 26.460 s 16: 26.440 s 17: 26.480 s 18: 26.380, 26.430 s 19: 26.380 s 20: 26.380 s 21: 26.390, 26.400 s 22: 26.280 s 24: 26.300 s 27: 26.310 s 29: 26.220 s 30: 26.230 s 31: 26.270 s 32: 26.290 s 33: 26.260 s 34: 26.260 s 35: 26.260 s 36: 26.610 s 39: 26.500 s 40: 26.520 s 41: 26.400 s 42: 26.410 s 44: 26.530 s 45: 26.560 s 46: 26.540 s 47: 26.550 s 48: 26.570 s 50: 26.590

s 56: 14.1040 s 58: 14.390 s 60: 14.1110 s 62(1): 14.10 s 62(1) to (2): 7.630 Sale of Goods (Vienna Convention) Act 1987 s 5: 15.20 s 6: 15.20 Sale of Motor Vehicles Act 1977 ss 23 to 24: 17.1410 s 25B: 17.1410 Supreme Court Act 1933 s 68B: 32.320 s 68M: 32.315 s 68N: 32.315 Trustee Act 1925 s 6: 29.380 s 7A: 29.350 ss 14 to 14C: 29.410 s 27B(2): 29.490 s 36: 29.540 s 44: 29.580 s 63: 29.640 s 64: 29.470 s 70: 29.390 s 85: 29.650 s 86: 29.630 Uncollected Goods Act 1996: 21.380 Unlawful Gambling Act 2009 s 47: 8.160 Wills Act 1968 s 9: 29.260, 29.310 Work Health and Safety Act 2011: 34.390 Workers Compensation Act 1951: 25.1150, 34.410

NEW SOUTH WALES Aboriginal Land Rights Act 1983: 22.890 Anti-Discrimination Act 1977 s 91A: 1.900 Bail Act 2013 : 32.270 Builders Licensing Act 1971 s 45(1): 12.550 Building and Construction Industry Security of Payment Act 1999: 16.120 Children (Criminal Proceedings) Act 1987

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Children (Criminal Proceedings) Act 1987 — cont s 5: 32.430 Civil Aviation (Carriers’ Liability) Act 1967: 21.530 Civil Liability Act 2002: 28.80, 28.170, 28.560 s 3B: 28.80 s 5: 28.80 s 5A(1): 28.80 s 5B: 28.390 s 5B(1): 28.390 s 5B(2): 28.390 s 5C: 28.450 s 5D(1)(a): 28.500 s 5D(1)(b): 28.510 s 5D(2): 28.500 s 5G: 28.570 s 5H: 28.110, 28.170 s 5L: 28.110, 28.170 s 5O: 28.80, 28.250, 28.470 s 5P: 28.80, 28.250, 28.470 s 5R: 28.560 s 5S: 28.560 s 12: 28.80 s 16: 28.80 s 21: 28.80 s 30: 28.90 s 30(2): 28.90 s 34(2): 28.500 s 42: 28.170 s 45: 28.80, 28.170 s 50: 28.470 Pt 1A, Div 5: 28.80 Pt 2: 28.80 Pt 3: 28.90 Pt 5: 28.80, 28.120, 28.170, 28.250 Pt 6: 28.160, 28.560 Pt 9: 28.80 Pt 11: 28.80 Sch 2, Item 2: 8.270 Civil and Administrative Tribunal Act 2013: 1.700 Coal Acquisition Act 1981 s 5: 22.330 Commercial Arbitration Act 2010: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850 s 10(1): 1.850

s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Common Carriers Act 1902: 21.450, 21.460 s 4: 21.460 s 7: 21.460 s 9(c): 21.460 Competition Policy Reform (New South Wales) Act 1995 s 5(1): 18.30 Constitution Act 1902 s 5B: 1.220 Contracts Review Act 1980: 7.860, 7.1010, 20.250, 22.650 s 6(1): 7.990 s 6(2): 7.990 s 7: 7.980 s 9(2): 7.980 s 9(2)(j): 7.860 s 9(3): 7.980 s 9(4): 7.980 s 9(5): 7.980 s 10: 7.1000 s 14: 7.980 s 16: 7.1000 s 17: 7.1000 s 17(4): 7.1000 s 18: 7.1000 s 21: 7.990 s 22: 7.1000

Conveyancing Act 1919: 22.800 s 12: 10.160 s 23C: 29.310 s 26: 22.460 s 38(1): 5.180 s 53(1): 22.480 s 54A(1): 5.330 s 129: 22.830 s 151A: 29.350 Pt 23: 22.480 Credit (Commonwealth Powers) Act 2010: 19.40 Crimes Act 1900: 32.180 s 117: 32.530 s 138: 16.270 s 580E: 32.220 Crimes (Appeal and Review) Act 2001 s 100: 32.315 s 101: 32.315 Criminal Procedure Act 1986 s 132: 32.320 s 260(1): 32.230 s 260(2): 32.230 Crown Lands Act 1989 s 171: 22.330 Defamation Act 2005: 28.850 s 6(2): 28.850 s 7: 28.850 s 8: 28.850 s 9: 28.850 s 20: 28.940 s 22: 28.850 s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 33: 28.920 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 District Court Act 1973 s 4: 1.620 s 44: 1.620 s 134B: 7.980 Electronic Transactions Act 2000: 16.30, 16.120 s 6: 16.30 s 7: 16.40

Table of Statutes

s 48: 6.140, 6.150

Electronic Transactions Act 2000 — cont s 8: 16.50 s 9: 16.60 s 10: 16.70 s 11: 16.90 s 13: 16.100 s 13A: 16.110 s 13B: 16.140 s 14: 16.150 s 14(2): 16.150

Law Reform (Miscellaneous Provisions) Act 1965 s 9: 12.250, 28.560 s 10: 28.560

Legal Profession Uniform Law s 181: 8.270

Motor Dealers and Repairers Act 2013: 17.1420 ss 68 to 69: 17.1410 s 74: 17.1410 ss 78 to 81: 17.1410 s 105: 17.1410 s 108: 17.1410

Evidence Act 1995 s 48: 16.230 s 51: 16.230

Legal Profession Uniform Law Application Act 2014 s 4: 8.270

Motor Vehicle Repairs Act 1980 s 165: 17.1420 s 171(2): 17.1420

Factors (Mercantile Agents) Act 1923: 13.790 s 5: 13.790

Limitation Act 1969: 12.410 s 11(3): 12.410 s 14(1)(a): 12.410 s 14(1)(b): 12.410 s 16: 12.410 s 27(1): 12.410 s 27(2): 12.410 s 52: 12.410 s 54: 12.410, 12.420 s 63: 12.410, 12.420 s 68: 12.410, 12.420

Native Title (New South Wales) Act 1994: 22.930

Fair Trading Act 1987: 16.350 s 28(1): 17.20 s 51A: 14.1160 s 60: 13.860 s 60C: 13.860 s 79S(7): 1.690 Pt 6A: 1.690 Fair Trading Amendment (Australian Consumer Law) Act 2010 Sch 1, Item 40: 14.1160 Financial Sector Reform (New South Wales) Act 1999: 24.960 Financial Transaction Reports Act 1992: 24.930 Frustrated Contracts Act 1978: 11.490, 14.160 s 5(1): 11.490 s 6(1): 11.490 s 15: 11.490 Imperial Acts Application Act 1969 s 8(1): 5.320, 5.340 Innkeepers Act 1968 s 6: 21.590 s 7: 21.590 s 7(2): 21.590 s 8: 21.670 Interpretation Act 1987: 1.350 s 23(1): 1.220 s 33: 1.360 s 34: 1.370 Jury Act 1977 s 42: 32.320 s 55F: 32.320 Landlord and Tenant Act 1899: 22.870 Landlord and Tenant (Amendment) Act 1948: 22.870

Legal Profession Act 1987: 28.80 Legal Profession Regulations 2005 reg 17: 16.270

Local Court Act 2007 s 29: 1.630, 1.690 Married Persons (Equality of Status) Act 1996 s 4: 6.190 s 7: 13.190 Minors (Property and Contracts) Act 1970: 6.40, 6.150, 26.180 s 6(1): 6.20, 6.150 s 6(3): 6.150 s 16: 6.150 s 18: 6.150 s 19: 6.150 s 20(1): 6.150 s 21: 6.150 s 26(1): 6.150 s 26(3): 6.150 s 26(4): 6.150 s 27(1): 6.150 s 27(2): 6.150 s 27(5): 6.150 s 28: 6.150 s 30(1): 6.150 s 30(1)(b): 6.150 ss 30(2) to (3): 6.150 s 30(4): 6.150 s 31(1): 6.150 s 31(2): 6.150 s 33(2): 6.150 s 34(1): 6.150 s 34(2): 6.150 s 37(1): 6.150 s 37(2): 6.150 s 47: 6.150, 20.100

Motor Accidents Act 1988 Pt 3: 25.1170

Partnership Act 1892: 26.10 s 1: 26.30 s 2: 26.80, 26.130 s 4: 26.190 s 5: 26.350 s 7: 26.370 s 8: 26.370 s 9: 26.380 s 10: 26.440 s 11: 26.460 s 12: 26.440 s 13: 26.480 s 14: 26.380, 26.430 s 15: 26.380 s 16: 26.380 s 17: 26.390, 26.400 s 18: 26.280 s 20: 26.300 s 22: 26.310 s 23: 26.340 s 24: 26.220 s 25: 26.230 s 26: 26.270 s 27: 26.290 s 28: 26.260 s 29: 26.260 s 30: 26.260 s 31: 26.610 s 34: 26.500 s 35: 26.520 s 36: 26.400 s 37: 26.410 s 38: 26.530 s 39: 26.560 s 40: 26.540 s 41: 26.550 s 42: 26.570 s 44: 26.590 s 45: 26.30 s 46: 26.10 Pt 3: 26.10, 26.620, 26.650 Perpetuities Act 1984 s 7: 29.330

lxvii

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Australian Commercial Law

Perpetuities Act 1984 — cont s 18: 29.340 Personal Property Securities (Commonwealth Powers) Act 2009: 19.910 Petroleum (Onshore) Act 1991 s 6: 22.330 Property, Stock and Business Agents Act 2002: 13.440 s 36: 13.440 s 52: 13.440 s 52(1): 13.440 s 52(2): 13.440 Pt 6: 14.1110 Public Interest Disclosures Act 1994: 32.480 Real Property Act 1900: 22.490 s 100: 22.460 Residential Tenancies Act 2010: 22.870 Restraints of Trade Act 1976: 8.610 s 4(1): 8.610 Retail Leases Act 1994: 22.860 Sale of Goods Act 1923: 11.300, 11.490, 14.10 s 4(2): 14.10 s 4(2A): 7.630 s 4(5): 11.300, 14.210 s 5: 14.30, 14.140, 14.870 s 6: 14.20 s 7: 6.180, 14.70 s 11: 7.90, 14.160, 14.610 s 12: 14.160, 14.610 s 13: 14.170 s 14: 14.170 s 15: 14.210 s 16: 14.400 s 17: 14.230 s 18: 14.240, 14.260 s 19: 14.270, 14.290 s 20: 14.380 ss 21 to 22: 14.440 s 23: 14.440 s 24: 14.540 s 25: 14.610 s 25A: 14.537 s 26: 14.640 s 27: 14.680 s 28: 14.700, 14.710 s 30: 14.760 ss 30 to 31: 14.830 s 31: 14.170, 14.760 s 32: 14.770 s 33: 14.790 s 34: 14.800 s 35: 14.770, 14.820

s 37: 14.830 s 37(1): 14.830 s 38: 14.830 s 38(2): 14.830 s 39: 14.830 s 41: 14.850 s 42: 14.880 ss 43 to 45: 14.870 s 46: 14.890 s 47: 14.900 s 48: 14.910 s 49: 14.910, 14.920 s 50: 14.930 s 51: 14.960 s 52: 14.970 s 53: 14.1090 s 54: 14.1040 s 57: 14.390 s 60: 14.1110 Sale of Goods (Amendment) Act 1988: 14.180, 14.400, 14.1030 Sale of Goods (Vienna Convention) Act 1986 s 5: 15.20 s 6: 15.20 Succession Act 2006 s 6: 29.260, 29.310 Supreme Court Act 1970: 1.460 s 97: 26.380 Transport Administration Act 1988 s 90: 21.500 Travel Agents Act 1986: 13.860 Travel Agents Repeal Act 2014: 13.860 Trustee Act 1925 s 6(4): 29.380 ss 14 to 14C: 29.410 s 27B(2): 29.490 s 36: 29.540 s 38: 29.510 s 44: 29.580 s 63: 29.640 s 70: 29.390 s 85: 29.650 s 86: 29.630 Uncollected Goods Act 1995: 21.380 Unlawful Gambling Act 1998 s 56: 8.160 s 56(2): 8.160 Work Health and Safety Act 2011: 34.390 Workers Compensation Act 1987: 25.1150, 34.410

Workplace Injury Management and Workers Compensation Act 1998: 25.1150, 34.410

NORTHERN TERRITORY Accommodation Providers Act 1981: 21.660 s 3(1): 21.660 s 7(2): 21.670 Age of Majority Act 1974 s 4: 6.20 Agents Licensing Act 1979 s 17: 13.860 Anti-Discrimination Act 1992 s 78: 1.900 s 81: 1.900 Auctioneers Act 1935: 14.1110 Bail Act 1982 : 32.270 Business Tenancies (Fair Dealings) Act 2000: 22.860 Commercial Arbitration (National Uniform Legislation) Act 2011: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850 s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850

Table of Statutes

Commercial Arbitration (National Uniform Legislation) Act 2011 — cont s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Commercial and Private Agents Licensing Act 1979 s 5: 13.860

s 6: 16.30 s 7: 16.40 s 8: 16.50 s 9: 16.60 s 10: 16.70 s 11: 16.90 s 13: 16.100 s 13A: 16.110 s 13B: 16.140 s 14: 16.150 s 14(2): 16.150 Evidence (National Uniform Legislation) Act s 48: 16.230 s 51: 16.230

Consumer Affairs and Fair Trading Act 1990 s 27(1): 17.20 ss 168 to 171: 17.1410 Pt 11: 13.860

Financial Sector Reform (Northern Territory) Act 1999: 24.960

Consumer Affairs and Fair Trading Amendment Act 2014 s 6: 13.860

Interpretation Act 1978: 1.350 s 6: 1.220 s 62A: 1.360 s 62B: 1.370 62D 62D: 1.315

Consumer Credit (National Uniform Legislation) Implementation Act 2010: 19.40 Criminal Code 1983: 32.190, 32.200 s 38(1): 32.430 s 38(2): 32.430 s 102: 16.270 s 368: 32.320 Defamation Act 2006: 28.850 s 5(2): 28.850 s 6: 28.850 s 7: 28.850 s 8: 28.850 s 19: 28.940 s 21: 28.860 s 22: 28.870 s 23: 28.870 s 24: 28.880 s 25: 28.890 s 26: 28.890 s 27(1): 28.900 s 27(3): 28.900 s 28: 28.910 s 29: 28.920 s 31: 28.950 s 32: 28.950 s 33: 28.950 s 34: 28.950 s 35: 28.950 s 54: 28.850 Pt 3, Div 1: 28.940 Electronic Transactions (Northern Territory) Act 2000: 16.30

Financial Transaction Reports Act 1992: 24.930

Land Title Act 2000: 22.490 Pt 2, Div 1: 22.480 Law Reform (Miscellaneous Provisions) Act 1956 s 16: 12.250, 28.560 Law Reform (Miscellaneous Provisions) Act 2001 s 16: 28.560 Law of Property Act 2000: 22.800 s 10(1)(b): 29.310 s 47(1): 5.180 s 49(3): 5.180 s 56: 10.20 s 58: 5.340, 20.30 s 62: 5.330 s 182: 10.160 s 187: 29.330 s 202: 29.340 s 221: 5.320 Sch 4: 5.320 Legal Profession Act 2006 s 318: 8.270 Limitation Act 1981: 12.410 s 12(1)(a): 12.410 s 14(1): 12.410 ss 26 to 27: 12.410 Local Court Act 2015 s 12: 1.630 Married Persons (Equality of Status) Act 1989

s 3: 6.190 s 5: 13.190 Motor Accidents (Compensation) Act 1979 Pt V: 25.1170 Pt IV: 25.1170 Northern Territory Civil and Administrative Tribunal Act 2014: 1.700 Partnership Act 1997: 26.10 s 3: 26.30 s 4: 26.10 s 5: 26.30 s 6: 26.80, 26.130 s 8: 26.190 s 9: 26.350 s 11: 26.370 s 12: 26.370 s 13: 26.380 s 14: 26.440 s 15: 26.460 s 16: 26.440 s 17: 26.480 s 18: 26.380, 26.430 s 19: 26.380 s 20: 26.380 s 21: 26.390, 26.400 s 22: 26.280 s 24: 26.300 s 26: 26.310 s 27: 26.340 s 28: 26.220 s 29: 26.230 s 30: 26.270 s 31: 26.290 s 32: 26.260 s 33: 26.260 s 34: 26.260 s 35: 26.610 s 38: 26.500 s 39: 26.520 s 40: 26.400 s 41: 26.410 s 42: 26.530 s 43: 26.560 s 44: 26.540 s 45: 26.550 s 46: 26.570 s 48: 26.590 Pt 3: 26.10, 26.650 Personal Injuries (Civil Claims) Act 2003: 28.80 Personal Injuries (Liabilities and Damages) Act 2003: 28.80 s 3: 28.80 s 4: 28.80 ss 14 to 15: 28.160, 28.560 s 20: 28.80

lxix

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Australian Commercial Law

Personal Injuries (Liabilities and Damages) Act 2003 — cont ss 24 to 28: 28.80 Public Interest Disclosure Act 2008: 32.480 Racing and Betting Act 1983 s 135: 8.160 s 135(1): 8.160 Residential Tenancies Act 2000: 22.870 Sale of Goods Act 1972: 14.10 s 4: 14.540 s 4(2): 14.10 s 5: 14.30, 14.140, 14.870 s 6: 14.20 s 7: 14.70 s 7(2): 6.180 s 7(3): 6.40 s 11: 7.90, 14.160, 14.610 s 12: 14.160, 14.610 s 13: 14.170 s 14: 14.170 s 15: 14.210 s 16: 14.400 s 17: 14.230 s 18: 14.240, 14.260 s 19: 14.270, 14.290 s 20: 14.380 ss 21 to 22: 14.440 s 23: 14.440 s 25: 14.610 s 26: 14.640 s 27: 14.680 s 28: 14.700, 14.710 s 30: 14.760 ss 30 and 31: 14.830 s 31: 14.170, 14.760 s 32: 14.770 s 33: 14.790 s 34: 14.800 s 35: 14.770, 14.820 s 37: 14.830 s 38: 14.830 s 39: 14.830 s 41: 14.850 s 42: 14.880 ss 43 to 45: 14.870 s 46: 14.890 s 47: 14.900 s 48: 14.910 s 49: 14.910, 14.920 s 50: 14.930 s 51: 14.960 s 52: 14.970 s 53: 14.1090 s 54: 14.1040 s 57: 14.390 s 60: 14.1110

Sale of Goods Amendment Act 1999 s 2: 14.180

Civil Aviation (Carriers’ Liability) Act 1964: 21.530

Sale of Goods (Vienna Convention) Act 1987 s 5: 15.20 s 6: 15.20

Civil Liability Act 2003: 28.80 s 4(1): 28.80 s 5: 28.80 s 9(1): 28.390 s 9(2): 28.390 s 10: 28.450 s 11(1)(a): 28.500 s 11(1)(b): 28.510 s 14: 28.570 s 15: 28.110, 28.170 s 19: 28.110, 28.170 s 21: 28.120 s 22: 28.80, 28.250, 28.470 s 23: 28.560 s 24: 28.560 s 35: 28.170 s 37: 28.80, 28.170 s 48: 28.570 s 52: 28.80 s 54: 28.80 s 62: 28.80 Pt 1, Div 4: 28.80 Pt 3: 28.80, 28.120, 28.170, 28.250 Pt 3, Div 2: 28.80 Pt 4, Div 2: 28.160, 28.560 Pt 5: 28.80 Sch 2: 28.80

Small Claims Act 2016 s 5: 1.690 Trustee Act 1893 ss 5 to 8: 29.410 s 11: 29.380 s 24A: 29.580 s 27: 29.390 s 49A: 29.650 s 50: 29.630 s 78: 29.600 Uncollected Goods Act 2004: 21.380 Validation (Native Title) Act 1994: 22.930 Wills Act 2000 s 8: 29.260, 29.310 Work Health and Safety (National Uniform Legislation) Act 2011: 34.390 Workers Rehabilitation and Compensation Act 1988: 25.1150, 34.410

QUEENSLAND Aboriginal Land Act 1991: 22.890 : 22.890 Aboriginal and Torres Strait Islander Land (Providing Freehold) and Other Legislation Amendment Act 2014 : 22.890 Acts Interpretation Act 1954: 1.350 s 14A: 1.360 s 14B: 1.370 s 15A: 1.220 14D 14D: 1.315 Anti-Discrimination Act 1991 s 158: 1.900 s 164AA: 1.900 Bail Act 1980 : 32.270 Carriage of Goods by Land (Carriers’ Liabilities) Act 1967: 21.470 Carriage of Goods by Land (Carriers’ Liabilities) Repeal Act 1993: 21.470

Commercial Arbitration Act 1990: 1.850 Commercial Arbitration Act 2013 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850 s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850

Table of Statutes

Commercial Arbitration Act 2013 — cont s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Construction and Tourism (Red Tape Reduction) and Other Legislation Amendment Act 2014 s 52: 13.860 Consumer Credit (Queensland) Act 1994: 19.30 Credit (Commonwealth Powers) Act 2010: 19.40 Criminal Code 1899: 32.190, 32.350 s 3: 32.220 s 29(1): 32.430 s 29(2): 32.430 s 87: 32.470 s 120: 16.270 s 140: 16.270 s 276: 21.370 s 302(1)(a): 32.350 s 391(2): 32.530 s 408C: 32.520 s 442A: 32.470 s 442B: 32.470 s 552A: 32.230 s 552B: 32.230 ss 614 to 615E: 32.320 s 678B: 32.315 s 678C: 32.315 Ch 5: 32.350 Criminal Proceeds Confiscation Act 2002: 32.470 Debt Collectors (Field Agents and Collection Agents) Act 2014 s 14: 13.860 s 26: 13.440 Defamation Act 2005: 28.850 s 6(2): 28.850 s 7: 28.850 s 8: 28.850 s 9: 28.850 s 20: 28.940 s 22: 28.850

s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 33: 28.920 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 Disposal of Uncollected Goods Act 1967: 21.380 Dispute Resolution Centres Act 1990 s 35(1): 1.950 District Court of Queensland Act 1967 s 68(2): 1.620 Electronic Transactions (Queensland) Act 2001: 16.30 s 7: 16.30 s 8: 16.40 ss 9 to 13: 16.50 ss 14 to 15: 16.60 ss 16 to 18: 16.70 ss 19 to 21: 16.90 ss 22 to 25: 16.140 s 23: 16.100 s 24: 16.110 s 26: 16.150 s 26(2): 16.150 Evidence Act 1977 s 95: 16.230 Factors Act 1892: 13.790 Fair Trading Act 1989 s 16(1): 17.20 s 56: 14.1160 Fair Trading (Australian Consumer Law) Amendment Act 2010 s 18: 14.1160 Financial Sector Reform (Queensland) Act 1999: 24.960 Financial Transaction Reports Act 1992: 24.930 Jury Act 1995 s 42: 32.320 s 59A: 32.320 Land Act 1994

: 22.890 Land Title Act 1994: 22.490 s 42(1): 22.490 s 56: 22.460 ss 132 to 135: 13.100 Law Reform Act 1995 s 10: 12.250, 28.560 s 17: 6.20 s 18: 6.190 Legal Profession Act 2007 s 323: 8.270 Limitation of Actions Act 1974: 12.410 s 10(1)(a): 12.410 s 10(3): 12.410 s 13: 12.410 Local Government Act 2009 s 28(1): 1.430 Magistrates Courts Act 1921 s 2: 1.630 s 4: 1.630 Mineral Resources Act 1989 s 8: 22.330 Motor Accident Insurance Act 1994 Pt 3: 25.1170 Motor Dealers and Chattel Auctioneers Act 2014 s 33: 13.860 s 88: 13.440 s 99: 17.1410 s 110: 17.1410 s 115: 17.1410 s 132: 13.440 s 145: 17.1410 Pt 4: 14.1110 Sch 1, s 12: 17.1410 Native Title (Queensland) Act 1993: 22.930 Partnership Act 1891: 26.10 s 3: 26.30, 26.190 s 5: 26.30 s 6: 26.80, 26.130 s 8: 26.350 s 10: 26.370 s 11: 26.370 s 12: 26.380 s 13: 26.440 s 14: 26.460 s 15: 26.440 s 16: 26.480 s 17: 26.380, 26.430 s 18: 26.380 s 19: 26.380 s 20: 26.390, 26.400 s 21: 26.280

lxxi

lxxii

Australian Commercial Law

Partnership Act 1891 — cont s 23: 26.300 s 25: 26.310 s 26: 26.340 s 27: 26.220 s 28: 26.230 s 29: 26.270 s 30: 26.290 s 31: 26.260 s 32: 26.260 s 33: 26.260 s 34: 26.610 s 37: 26.500 s 38: 26.520 s 39: 26.400 s 40: 26.410 s 41: 26.530 s 42: 26.560 s 43: 26.540 s 44: 26.550 s 45: 26.570 s 47: 26.590 s 48: 26.10 Ch 3: 26.10, 26.620 Ch 4: 26.10, 26.650 Personal Injuries Proceedings Act 2002: 28.80 Personal Property Securities (Commonwealth Powers) Act 2009: 19.910 Petroleum Act 1923 s 9: 22.330 s 10: 22.330 Police Powers and Responsibilities Act 2000 Ch 14: 32.220 Property Agents and Motor Dealers Act 2000: 22.870 Property Law Act 1974: 22.800 s 11: 29.310 s 35: 22.460 s 45(1): 5.180 s 47(3): 5.180 s 55: 10.20, 29.100 s 56: 5.340, 20.30 s 59: 5.330 s 85(1): 22.630 s 124: 22.830 s 199: 10.160 s 209: 29.330 s 222: 29.340 s 237(1): 22.480 ss 241 to 249: 22.480 Property Occupations Act 2014 s 26: 13.860 s 89: 13.440

Public Interest Disclosure Act 2010: 32.480 Queensland Civil and Administrative Tribunal Act 2009: 1.700 s 11: 1.690 Sch 3: 1.690 Racing Act 2002 s 341: 8.160 s 342: 8.160 Residential Tenancies and Rooming Accommodation Act 2008: 22.800, 22.870 Retail Shop Leases Act 1994: 22.800, 22.860 Sale of Goods Act 1896: 14.10 s 3: 14.30, 14.140, 14.870 s 4: 14.20 s 5: 6.180, 14.70 s 5(3): 6.40 s 9: 7.90, 14.160, 14.610 s 10: 14.160, 14.610 s 11: 14.170 s 12: 14.170 s 13: 14.210 s 14: 14.400 s 15: 14.230 s 16: 14.240, 14.260 s 17: 14.270, 14.290 s 18: 14.380 ss 19 to 20: 14.440 s 21: 14.440 s 22: 14.540 s 23: 14.610 s 24: 14.640 s 25: 14.680 s 27: 14.700, 14.710 s 29: 14.760 ss 29 to 30: 14.830 s 30: 14.170, 14.760 s 31: 14.770 s 32: 14.790 s 33: 14.800 s 34: 14.770, 14.820 s 36: 14.830 s 37: 14.830 s 38: 14.830 s 40: 14.850 s 41: 14.880 ss 42 to 44: 14.870 s 45: 14.890 s 46: 14.900 s 47: 14.910 s 48: 14.910, 14.920 s 49: 14.930 s 50: 14.960 s 51: 14.970 s 52: 14.1090 s 54: 14.1040

s 56: 14.390 s 59: 14.1110 s 61(2): 14.10 Sale of Goods (Vienna Convention) Act 1986 s 5: 15.20 s 6: 15.20 Statute of Frauds 1972 s 3: 14.180 s 3(1): 5.320 Storage Liens Act 1973 : 22.280 Succession Act 1981 s 10: 29.260, 29.310 s 68: 29.600 Torres Strait Islander Land Act 1991: 22.890 : 22.890 Transport Infrastructure Act 1994 s 248: 21.500 Travel Agents Act 1988: 13.860 Traveller Accommodation Providers (Liability) Act 2001: 21.610 s 12(2): 21.610 s 12(3): 21.610 s 13(2): 21.610 s 14: 21.610 s 15: 21.610 Trusts Act 1973: 29.600 s 12(1): 29.380 ss 21 to 24: 29.410 s 57: 29.550 s 62: 29.580 s 76: 29.650 s 77: 29.630 s 80: 29.390 s 96: 29.640 s 101: 29.600 Work Health and Safety Act 2011: 34.380, 34.390, 34.400 Workers’ Compensation and Rehabilitation Act 2003: 25.1150, 34.370, 34.410 Workplace Health and Safety Act 2011: 34.370, 34.400

SOUTH AUSTRALIA Acts Interpretation Act 1915: 1.350 s 7: 1.220 s 22: 1.360 19A 19A: 1.315 Age of Majority (Reduction) Act 1971

Table of Statutes

Age of Majority (Reduction) Act 1971 — cont s 3(1): 6.20 Bail Act 1985 : 32.270 Civil Aviation (Carriers’ Liability) Act 1962: 21.530 Civil Liability Act 1936: 28.80 s 3: 28.80 s 4: 28.80 s 4(4): 28.80 s 32(1): 28.390 s 32(2): 28.390 s 34(1)(a): 28.500 s 34(1)(b): 28.510 s 36: 28.110, 28.170 s 37: 28.570 s 38: 28.110, 28.170 s 41: 28.80, 28.250, 28.470 s 42: 28.80, 28.170 s 44: 28.560 s 46: 28.160, 28.560 s 47: 28.570 s 47(1): 28.560 s 52: 28.80 s 53: 28.90 s 53(1): 28.90 s 54: 28.80 s 67: 28.80 Pt 9, Div 11A: 28.80 Civil Liability Act 1936 : 28.570 Commercial Arbitration Act 2011: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850 s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850

s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Constitution Act 1934 s 41: 1.220 Credit (Commonwealth Powers) Act 2010: 19.40 Criminal Law Consolidation Act 1935: 32.180 s 85: 25.540 s 139: 32.520 s 243: 16.270 s 274(2): 32.230 s 336: 32.315 s 337: 32.315 Defamation Act 2005: 28.850 s 6(2): 28.850 s 7: 28.850 s 8: 28.850 s 9: 28.850 s 20: 28.940 s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 33: 28.920 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 District Court Act 1991 s 8: 1.620 Dust Diseases Act 2005 s 8(2): 28.100 Electronic Transactions Act 2000: 16.30

s 6: 16.30 s 7: 16.40 s 8: 16.50 s 9: 16.60 s 10: 16.70 s 11: 16.90 s 13: 16.100 s 13A: 16.110 s 13B: 16.140 s 16: 16.150 s 16(2): 16.150 Employment Agents Registration Act 1993 s 6: 13.860 Equal Opportunity Act 1984 s 27: 1.900 s 95: 1.900 Evidence Act 1929 s 34C: 16.230 Fair Trading Act 1987 s 14(1): 17.20 s 28: 14.1160 Financial Sector Reform (South Australia) Act 1999: 24.960 Financial Transactions Reports (State Provisions) Act 1992: 24.930 Frustrated Contracts Act 1988: 11.500, 14.160 s 3(2): 11.500 s 4(2): 11.500 s 6: 11.500 s 7(1): 11.500 s 7(2): 11.500 s 7(4): 11.500 s 7(5): 11.500 Juries Act 1927 s 7: 32.320 s 57: 32.320 Land Agents Act 1994 s 6(1): 13.860 s 6(2): 13.440 Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001: 12.250, 28.560 s 7: 28.560 Law of Property Act 1936 s 15: 10.160 s 26(1): 5.330 s 29: 29.310 s 41(1): 5.180 ss 61 to 62: 29.330, 29.340 ss 92 to 111: 6.190 s 104: 13.190

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Licensing Act 1967 s 120: 21.620 Limitation of Actions Act 1936: 12.410, 28.845 s 4: 12.410 s 34: 12.410 s 35(a): 12.410 Liquor Licensing Act 1985: 21.620 Liquor Licensing Act 1997: 21.620 Lottery and Gaming Act 1936 s 50: 8.160 s 50A: 8.160 Magistrates Court Act 1991 s 3: 1.690 s 8: 1.630 s 38: 1.690 Maralinga Tjarutja Land Rights Act 1984: 22.890 Mercantile Law Act 1936: 13.790 Mining Act 1971 s 16: 22.330 Minors Contracts (Miscellaneous Provisions) Act 1979: 6.160, 26.180 s 4: 6.160 s 5: 6.160, 20.100 s 6: 6.160 s 7: 6.160 s 8: 6.160 Misrepresentation Act 1972: 7.640 s 6(1): 7.660 s 6(1)(b): 14.830 s 6(2): 7.660 s 7: 7.650 s 7(1): 7.640 s 7(2): 7.640 s 7(3): 7.660 s 8: 7.660 s 11: 14.400, 14.1030 Motor Vehicles Act 1959 Pt 4: 25.1170 Native Title (South Australia) Act 1994: 22.930 Partnership Act 1891: 26.10 s 1: 26.30 s 2: 26.80, 26.130 s 4: 26.190 s 5: 26.350 s 7: 26.370 s 8: 26.370 s 9: 26.380 s 10: 26.440 s 11: 26.460 s 12: 26.440

s 13: 26.480 s 14: 26.380, 26.430 s 15: 26.380 s 16: 26.380 s 17: 26.390, 26.400 s 18: 26.280 s 20: 26.300 s 22: 26.310 s 23: 26.340 s 24: 26.220 s 25: 26.230 s 26: 26.270 s 27: 26.290 s 28: 26.260 s 29: 26.260 s 30: 26.260 s 31: 26.610 s 34: 26.500 s 35: 26.520 s 36: 26.400 s 37: 26.410 s 38: 26.530 s 39: 26.560 s 40: 26.540 s 41: 26.550 s 42: 26.570 s 44: 26.590 s 45: 26.30 s 46: 26.10 Pt 3: 26.10, 26.620 Pt 6: 26.10, 26.650 Personal Property Securities (Commonwealth Powers) Act 2000: 19.910 Petroleum Act and Geothermal Energy 2000 s 5: 22.330 Pitjantjatjara Land Rights Act 1981: 22.890 Powers of Attorney and Agency Act 1984 s 12: 13.740 Railways (Operations and Access) Act 1997 s 17: 21.500 Real Property Act 1886: 22.490, 22.800 s 74: 22.460 s 156: 13.100 Recreational Services (Limitation of Liability) Act 2002: 28.80 s 5: 28.170 Registration of Deeds Act 1935: 22.480 s 35: 13.100

Residential Tenancies Act 1995: 22.870 Retail and Commercial Leases Act 1995: 22.860 Sale of Goods Act 1895: 11.500, 14.10 s 1: 14.20 s 2: 14.70 s 2(1): 6.180 s 2(2): 6.40 s 6: 7.90, 14.160, 14.610 s 7: 14.160, 14.610 s 8: 14.170 s 9: 14.170 s 10: 14.210 s 11: 14.400 s 12: 14.230 s 13: 14.240, 14.260 s 14: 14.270, 14.290 s 15: 14.380 ss 16 to 17: 14.440 s 18: 14.440 s 19: 14.540 s 20: 14.610 s 20A: 14.537 s 21: 14.640 s 23: 14.680 s 25: 14.700, 14.710 s 27: 14.760 ss 27 to 28: 14.830 s 28: 14.170, 14.760 s 29: 14.770 s 30: 14.790 s 31: 14.800 s 32: 14.770, 14.820 s 34: 14.830 s 34(1): 14.830 s 35: 14.830 s 36: 14.830 s 38: 14.850 s 39: 14.880 ss 40 to 42: 14.870 s 43: 14.890 s 44: 14.900 s 45: 14.910 s 46: 14.910, 14.920 s 47: 14.930 s 48: 14.960 s 49: 14.970 s 50: 14.1090 s 52: 14.1040 s 54: 14.390 s 57: 14.1110 s 59(2): 14.10 s 60: 14.30, 14.140, 14.870 Sale of Goods (Vienna Convention) Act 1986 s 4: 15.20 s 5: 15.20

Table of Statutes

Second-Hand Dealers and Pawnbrokers Regulations 2013 reg 6: 14.1110 Second-hand Vehicle Dealers Act 1995 s 3: 17.1410 s 18B: 17.1410 ss 23 to 24: 17.1410 Security and Investigation Industry Act 1995 s 6: 13.860 South Australian Civil and Administrative Tribunal Act 2013: 1.700 Statutes Amendment (Enforcement of Contracts) Act 1982 s 3: 5.320, 5.340 s 4: 14.180 Statutes Amendment and Repeal (Australian Consumer Law) Act 2010 s 7: 14.1160 Summary Procedure Act 1921 s 5(3)(a): 32.230 s 107(3)(b)(ii): 32.230 Travel Agents Act 1986: 13.860 Travel Agents Repeal Act 2014: 13.860 Trustee Act 1936 ss 6 to 9: 29.410 s 14(1): 29.380 s 17: 29.470 s 33A: 29.580 s 36: 29.390 s 56: 29.650 s 91: 29.600, 29.640 Unclaimed Goods Act 1987: 21.380 Volunteers Protection Act 2001: 28.80 Whistleblowers Protection Act 1993: 32.480 Wills Act 1936 s 8: 29.260, 29.310 Work Health and Safety Act 2012: 34.390 WorkCover Corporation Act 1994: 25.1150, 34.410 Workers Rehabilitation and Compensation Act 1986: 25.1150, 34.410 Wrongs Act 1936

s 41: 28.470

TASMANIA Acts Interpretation Act 1931: 1.350 s 8A: 1.360 s 8B: 1.370 s 9: 1.220 Age of Majority Act 1973 s 3(1): 6.20 Australian Consumer Law (Tasmania) Act 2010 s 6(1): 17.20 s 45: 14.10 Pt 4: 22.860 Bail Act 1994 : 32.270 Civil Aviation (Carriers’ Liability) Act 1963: 21.530 Civil Liability Act 2002: 21.640, 28.80 s 3: 28.80 s 3B: 28.80 s 4: 28.80 s 11(1): 28.390 s 11(2): 28.390 s 12: 28.450 s 13(1)(a): 28.500 s 13(1)(b): 28.510 s 16: 28.570 s 17: 28.110, 28.170 s 20: 28.110, 28.170 s 21: 28.120 s 22: 28.80, 28.250, 28.470 s 23: 28.560 s 26: 28.80 ss 27 to 28: 28.80 s 34: 28.90 s 38: 28.170 s 42: 28.80, 28.170 s 49A(3): 21.640 Pt 2: 28.160, 28.560 Pt 6, Div 5: 28.80 Pt 8B: 28.80 Pt 9: 28.80, 28.120, 28.170, 28.250 Pt 10: 28.80 Commercial Arbitration Act 2011: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850

s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Common Carriers Act 1874: 21.450 Conveyancing and Law of Property Act 1884 s 35: 22.480 s 36(1): 5.330 s 60(2): 29.310 s 63(1): 5.180 s 86: 10.160 Credit (Commonwealth Powers) Act 2009: 19.40 Criminal Code 1924 s 18(1): 32.430 s 18(2): 32.430 s 99: 16.270 s 394: 32.315 Criminal Code Act 1924: 32.190 Sch 1, s 45: 21.370 Crown Lands Act 1976 s 16: 22.330 s 54: 22.330 Defamation Act 2005: 28.850 s 3: 28.920 s 6(2): 28.850 s 7: 28.850 s 8: 28.850

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Defamation Act 2005 — cont s 9: 28.850 s 20: 28.940 s 22: 28.850 s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 Disposal of Uncollected Goods Act 1968: 21.380 Electronic Transactions Act 2000: 16.30 s 4: 16.30 s 5: 16.40 s 6: 16.50 s 7: 16.60 s 8: 16.70 s 9: 16.90 s 11: 16.100 s 11A: 16.110 s 11B: 16.140 s 12: 16.150 s 12(2): 16.150 Evidence Act 2001 s 48: 16.230 s 51: 16.230 Factors Act 1891: 13.790 Fair Trading (Code of Practice for Retail Tenancies) Regulations 1998: 22.860 Financial Sector Reform (Tasmania) Act 1999: 24.960 Financial Transaction Reports Act 1993: 24.930 Juries Act 2003 s 43: 32.320 Land Titles Act 1980: 22.490, 22.800 s 44: 22.460 Legal Profession Act 2007 s 307: 8.270 Legislation Repeal Act 2000 s 3: 14.1160 Sch 1: 14.1160

Limitation Act 1974: 12.410 s 4(1)(a): 12.410 s 4(3): 12.410 s 10(1): 12.410 s 10(2): 12.410 Magistrates Court (Civil Division) Act 1992 s 3: 1.630, 1.690 s 7: 1.630 s 7(2): 1.690 Married Women’s Property Act 1935 s 3: 6.190 s 7: 6.190 s 11: 6.190 Mercantile Law Act 1935 s 6: 5.320, 5.330, 5.340, 20.30, 26.140 Mineral Resources Development Act 1995 s 6: 22.330 Minors Contracts Act 1988 s 4: 6.150 Mock Auctions Act 1973: 14.1160 Motor Accidents (Liabilities and Compensation) Act 1973 Pt IV: 25.1170 Motor Vehicle Traders Act 2011 ss 42 to 46: 17.1410 Native Title (Tasmania) Act 1994: 22.930 Partnership Act 1891: 26.10 s 4: 26.30 s 5: 26.10 s 6: 26.30 s 7: 26.80, 26.130 s 9: 26.190 s 10: 26.350 s 12: 26.370 s 13: 26.370 s 14: 26.380 s 15: 26.440 s 16: 26.460 s 17: 26.440 s 18: 26.480 s 19: 26.380, 26.430 s 20: 26.380 s 21: 26.380 s 22: 26.390, 26.400 s 23: 26.280 s 25: 26.300 s 27: 26.310 s 28: 26.340 s 29: 26.220 s 30: 26.230

s 31: 26.270 s 32: 26.290 s 33: 26.260 s 34: 26.260 s 35: 26.260 s 36: 26.610 s 39: 26.500 s 40: 26.520 s 41: 26.400 s 42: 26.410 s 43: 26.530 s 44: 26.560 s 45: 26.540 s 46: 26.550 s 47: 26.570 s 49: 26.590 Pt 3: 26.10, 26.620, 26.650 Perpetuities and Accumulations Act 1992 s 6(1): 29.330 s 22: 29.340 s 27(1): 29.340 Powers of Attorney Act 2000 s 11: 13.100 s 18: 13.100 s 52: 13.740 Property Agents and Land Transactions Act 2005 s 5: 13.860 s 18: 13.440 s 42: 14.1160 Public Interest Disclosures Act 2002: 32.480 Racing Regulation Act 2004 s 103(1): 8.160 s 103(2): 8.160 Registration of Deeds Act 1935: 22.480 Residential Tenancy Act 1997: 22.870 Sale of Goods Act 1896: 14.10 s 3: 14.30, 14.140, 14.870 s 5(2): 14.10 s 6: 14.20 s 7: 14.70 s 7(1): 6.180 s 7(2): 6.40 s 9: 14.180 s 9(1): 5.340 s 9(3): 14.200 s 11: 7.90, 14.160, 14.610 s 12: 14.160, 14.610 s 13: 14.170 s 14: 14.170 s 15: 14.210 s 16: 14.400 s 17: 14.230

Table of Statutes

Sale of Goods Act 1896 — cont s 18: 14.240, 14.260 s 19: 14.270, 14.290 s 20: 14.380 ss 21 to 22: 14.440 s 23: 14.440 s 24: 14.540 s 25: 14.610 s 26: 14.640 s 28: 14.680 s 30: 14.700, 14.710 s 32: 14.760 ss 32 to 33: 14.830 s 33: 14.170, 14.760 s 34: 14.770 s 35: 14.790 s 36: 14.800 s 37: 14.770, 14.820 s 39: 14.830 s 40: 14.830 s 41: 14.830 s 43: 14.850 s 44: 14.880 ss 45 to 47: 14.870 s 48: 14.890 s 49: 14.900 s 50: 14.910 s 51: 14.910, 14.920 s 52: 14.930 s 53: 14.960 s 54: 14.970 s 55: 14.1090 s 57: 14.1040 s 59: 14.390 s 62: 14.1110 Sale of Goods (Vienna Convention) Act 1987 s 5: 15.20 s 6: 15.20 Security and Investigations Agents Act 2002 s 4: 13.860 Supreme Court Act 1933 s 393: 32.315 Testators Family Maintenance Act 1912 : 28.380 Travel Agents Act 1987: 13.860 Travel Agents Repeal Act 2014: 13.860 Trustee Act 1898 ss 6 to 9: 29.410 s 13(1): 29.380 s 25AA: 29.470 s 29: 29.580 s 32: 29.390 s 50: 29.650

s 53: 29.630 s 58: 29.600 Wills Act 2008 s 8: 29.260, 29.310 Work Health and Safety Act 2011: 34.390 Workers Rehabilitation and Compensation Act 1988: 25.1150, 34.410 Wrongs Act 1954 s 4: 12.250, 28.560 s 44: 28.560

VICTORIA Aboriginal Lands Act 1970: 22.890 Accident Compensation Act 1985: 25.1150 Accident Compensation (WorkCover Insurance) Act 1993: 25.1150, 34.410 Age of Majority Act 1977 s 3(1): 6.20 Auction Sales Act 1958: 13.860 Auction Sales (Repeal) Act 2001 s 3: 13.860 Australian Consumer Law and Fair Trading Act 2012: 7.680, 11.485, 14.160, 21.600 s 11(1): 17.20 s 24(1): 7.680 s 25(2): 7.680 s 31: 14.10 s 32(2): 20.100 s 32(3): 20.100 s 36(1): 11.485 s 36(1)(c): 11.485 s 37: 11.485 s 38(1) to (2): 11.485 s 38(3): 11.485 s 40: 11.485 s 41: 11.485 ss 54 to 77: 21.380 s 100: 21.600 s 101(1): 21.600 s 101(2): 21.600 s 102(1): 21.600 s 102(2)(c): 21.600 s 103(4): 21.600 s 104: 21.600 s 105: 21.670 ss 182 to 185: 1.690 s 235: 21.450 Sch 3: 21.600 Bail Act 1977

: 32.270 Carriers and Innkeepers Act 1958: 21.450 Civil Aviation (Carriers’ Liability) Act 1961: 21.530 Commercial Arbitration Act 2011: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850 s 8(1): 1.850 s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850 Constitution Act 1975 ss 65A to 65G: 1.220 County Court Act 1958 s 37: 1.620 Credit (Commonwealth Powers) Act 2010: 19.40 Crimes Act 1958: 32.180 s 72(1): 32.530 s 73(4): 32.530

lxxvii

lxxviii

Australian Commercial Law

Crimes Act 1958 — cont s 81: 32.520 s 82: 32.520 s 254: 16.270 Criminal Procedure Act 2009 s 327L: 32.315 s 327M: 32.315 Defamation Act 2005: 28.850 s 6(2): 28.850 s 7: 28.850 s 8: 28.850 s 9: 28.850 s 20: 28.940 s 22: 28.850 s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 33: 28.920 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 Electronic Transactions (Victoria) Act 2000: 16.30 s 6: 16.30 s 7: 16.40 s 8: 16.50 s 9: 16.60 s 10: 16.70 s 11: 16.90 s 13: 16.100 s 13A: 16.110 s 13B: 16.140 s 14: 16.150 s 14(2): 16.150 Equal Opportunity Act 2010 s 112: 1.900 Estate Agents Act 1980 s 12: 13.860 s 49A: 13.440 s 50: 13.440 Evidence Act 2008 s 51: 16.230 Factories and Shops Act 1876: 34.370 Fair Trading Act 1999 ss 30 to 31: 14.1160

Fair Trading Amendment (Australian Consumer Law) Act 2010 s 9: 14.1160

Instruments Act 1958 s 126: 5.320, 20.30 s 126(1): 5.330

Financial Sector Reform (Victoria) Act 1999: 24.960

Interpretation of Legislation Act 1984: 1.350 s 10A(3): 1.220 s 35: 1.360, 1.370 36(3A) 36(3A): 1.315

Gambling Regulation Act 2003 s 2.4.1: 8.160 Goods Act 1958: 11.485, 14.10 s 3: 14.30, 14.140, 14.870 s 4(2): 14.10 s 6: 14.20 s 7: 6.40, 6.180, 14.70 s 11: 7.90, 14.160, 14.610 s 12: 14.160, 14.610 s 13: 14.170 s 14: 14.170 s 15: 14.210 s 16: 14.400 s 17: 14.230 s 18: 14.240, 14.260 s 19: 14.270, 14.290 s 20: 14.380 ss 21 to 22: 14.440 s 23: 14.440 s 24: 14.540 s 25: 14.610 s 25A: 14.537 s 27: 14.640 s 29: 14.680 s 30: 14.700, 14.710 s 31: 14.700, 14.710 s 34: 14.760 ss 34 to 35: 14.830 s 35: 14.170, 14.760 s 36: 14.770 s 37: 14.790 s 38: 14.800 s 39: 14.770, 14.820 s 41: 14.830 s 41(1): 14.830 s 42: 14.830 s 43: 14.830 s 45: 14.850 s 46: 14.880 ss 47 to 49: 14.870 s 50: 14.890 s 51: 14.900 s 52: 14.910 s 53: 14.910, 14.920 s 54: 14.930 s 55: 14.960 s 56: 14.970 s 57: 14.1090 s 59: 14.1040 s 61: 14.390 s 64: 14.1110 ss 65 to 72: 13.790 s 86: 15.20 s 87: 15.20

Juries Act 2000 s 39: 32.320 s 46: 32.320 Land Titles Validation Act 1994: 22.930 Legal Profession Uniform Law s 181: 8.270 Legal Profession Uniform Law Application Act 2014 s 4: 8.270 Limitation of Actions Act 1958: 12.410 s 5(1)(a): 12.410 s 5(3): 12.410 s 8: 12.410 Local Government (Decentralised Industries) Act 1963: 9.270 Magistrates’ Court Act 1989 s 3(1): 1.630 s 100: 1.630 Marriage Act 1958 ss 156 to 161: 6.190 Mineral Resources (Sustainable Development) Act 1990 s 9: 22.330 Motor Car Traders Act 1986 s 43: 17.1410 s 50D: 14.1160 ss 54 to 55: 17.1410 Occupational Health and Safety Act 2004: 34.390 Partnership Act 1958: 26.10 s 3: 26.30 s 4: 26.10 s 5: 26.30 s 6: 26.80, 26.130 s 8: 26.190 s 9: 26.350 s 11: 26.370 s 12: 26.370 s 13: 26.380 s 14: 26.440 s 15: 26.460 s 16: 26.440 s 17: 26.480 s 18: 26.380, 26.430

Table of Statutes

Partnership Act 1958 — cont s 19: 26.380 s 20: 26.380 s 21: 26.390, 26.400 s 22: 26.280 s 24: 26.300 s 26: 26.310 s 27: 26.340 s 28: 26.220 s 29: 26.230 s 30: 26.270 s 31: 26.290 s 32: 26.260 s 33: 26.260 s 34: 26.260 s 35: 26.610 s 38: 26.500 s 39: 26.520 s 40: 26.400 s 41: 26.410 s 42: 26.530 s 43: 26.560 s 44: 26.540 s 45: 26.550 s 46: 26.570 s 48: 26.590 Pt 3: 26.10, 26.620 Pt 5: 26.10, 26.650 Perpetuities and Accumulations Act 1968 s 5: 29.330 s 19: 29.340 Personal Property Securities (Commonwealth Powers) Act 2009: 19.910

s 9: 14.180 Supreme Court Act 1986 s 49: 6.120, 6.130 s 51: 6.130 Transfer of Land Act 1958: 22.490, 22.800 s 30(2): 22.460

Acts Amendment and Repeal (Financial Sector Reform) Act 1999: 24.960

Transport Act 1983: 28.170 s 49: 21.500

Age of Majority Act 1972 s 5(1): 6.20

Transport (Amendment) Act 2000 s 9: 21.500

Auction Sales Act 1973: 14.1110 s 25: 14.1160

Transport (Highway Rule) Act 2002: 28.170

Bail Act 1982 : 32.270

Travel Agents Act 1986: 13.860

Carriers Act 1920: 21.450

Travel Agents Repeal Act 2014: 13.860

Chattel Securities Act 1987: 14.650

Trustee Act 1958 ss 6 to 8: 29.410 s 38: 29.580 s 41(1): 29.380 s 48: 29.390 s 67: 29.650 s 68: 29.630 s 77: 29.600 Victorian Civil and Administrative Tribunal Act 1998: 1.700 Wills Act 1997 s 7: 29.260, 29.310 Workplace Accident Compensation Act 1985: 34.410

Powers of Attorney Act 2014 ss 14 to 15: 13.740 s 75: 13.740 Pt 2: 13.100

Wrongs Act 1958: 28.80 s 14G: 28.160, 28.560 s 26: 12.250, 28.560 s 28F: 28.80 s 28G: 28.80 s 28H: 28.80 s 32(2): 8.270 ss 34 to 37: 28.80 s 43: 28.80 s 44: 28.80 s 45: 28.80 s 48(1): 28.390 s 48(2): 28.390 s 49: 28.450 s 51(1)(a): 28.500 s 51(1)(b): 28.510 s 54: 28.570 s 59: 28.80, 28.250, 28.470 s 60: 28.80, 28.250, 28.470 s 62: 28.560 s 63: 28.560 s 73: 28.90

Protected Disclosure Act 2012: 32.480 Residential Tenancies Act 1997: 22.870 Retail Leases Act 2003: 22.860 Sale of Goods (Vienna Convention) Act 1987 s 8: 5.320

WESTERN AUSTRALIA

Transport Accident Act 1986 Pt 3: 25.1170

Petroleum Act 1998 s 13: 22.330

Property Law Act 1958 s 44(1): 22.480 s 53: 29.310 s 73(1): 5.180 s 134: 10.160 s 146: 22.830 Pt 1: 22.480

s 83: 28.170 Pt XXII: 28.80, 28.120, 28.170, 28.250 Pt XI: 28.90 Pt VBA: 28.80

Civil Aviation (Carriers’ Liability) Act 1961: 21.530 Civil Judgments Enforcement Act 2004 s 14(4): 26.340 Civil Liability Act 2002: 28.80 s 3: 28.80 s 5B(1): 28.390 s 5B(2): 28.390 s 5C(1)(a): 28.500 s 5C(1)(b): 28.510 s 5H: 28.110, 28.170 s 5K: 28.560 s 5L: 28.160, 28.560 s 5N: 28.570 s 5O: 28.110, 28.170 s 5W: 28.170 s 5Z: 28.170 s 5PB(1): 28.450 s 6: 28.80 ss 9 to 10A: 28.80 s 11: 28.80 s 52: 28.80 Pt 1A, Div 4: 28.80 Pt 1B: 28.90 Pt 1C: 28.80, 28.120, 28.170, 28.250 Commercial Arbitration Act 2012: 1.850 s 1(1): 1.850 s 1(3): 1.850 s 6: 1.850 ss 6 to 9: 1.850 s 7(1): 1.850 s 7(2): 1.850 s 7(3): 1.850 s 7(4) to (8): 1.850

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Australian Commercial Law

Commercial Arbitration Act 2012 — cont s 8(1): 1.850 s 10(1): 1.850 s 10(2): 1.850 s 11(2): 1.850 s 11(3)(a): 1.850 s 11(3)(b): 1.850 s 17(1) to (2): 1.850 s 17(2)(a): 1.850 s 17(2)(c): 1.850 s 17(2)(d): 1.850 s 17H: 1.850 s 27(1): 1.850 s 27(2): 1.850 s 27A(1): 1.850 s 27E(1): 1.850 s 31(1): 1.850 s 31(3): 1.850 s 33A: 1.850 s 34(1): 1.850 s 34(2): 1.850 s 34(2)(a): 1.850 s 34(2)(a)(i): 1.850 s 34(2)(a)(ii): 1.850 s 34(2)(a)(iv): 1.850 s 34(2)(a)(iii): 1.850 s 34(2)(b): 1.850 s 34(2)(b)(i): 1.850 s 34(2)(b)(ii): 1.850 s 34(3): 1.850 s 34A(1): 1.850 s 36: 1.850 s 36(1): 1.850 s 36(1)(a)(v): 1.850

s 7: 28.850 s 8: 28.850 s 9: 28.850 s 20: 28.940 s 22: 28.850 s 24: 28.860 s 25: 28.870 s 26: 28.870 s 27: 28.880 s 28: 28.890 s 29: 28.890 s 30(1): 28.900 s 30(3): 28.900 s 31: 28.910 s 33: 28.920 s 34: 28.950 s 35: 28.950 s 36: 28.950 s 37: 28.950 s 38: 28.950 Pt 3, Div 1: 28.940 Disposal of Uncollected Goods Act 1970: 21.380 District Court of Western Australia Act 1969 s 6(1): 1.620 s 50: 1.620

Credit (Commonwealth Powers) Act 2010: 19.40

Electronic Transactions Act 2011: 16.30 s 6: 16.30 s 8: 16.40 s 9: 16.50 s 10: 16.60 s 11: 16.70, 16.90 s 13: 16.100 s 14: 16.110, 16.150 s 14(2): 16.150 s 15: 16.140

Criminal Appeals Act 2004 s 46I: 32.315 s 46J: 32.315

Employers’ Indemnity Supplementation Fund Act 1954: 34.410

Criminal Code 1913: 32.190 s 29: 32.430 s 132: 16.270 s 253: 21.370 s 371(2): 32.530 s 409: 32.520

Employment Agents Act 1976 s 12: 13.860

Criminal Investigation Act 2006 Pt 12: 32.220

Evidence Act 1906 ss 73A to 73U: 16.230

Criminal Procedure Act 2004 s 114: 32.320 ss 117 to 120: 32.320

Factors 1842 Imperial Act 5 & 6 Vict, c 39: 13.790

Commercial Tenancy (Retail Shops) Agreements Act 1985: 22.860

Debt Collectors Licensing Act 1964 s 5: 13.860 Defamation Act 2005: 28.850 s 6(2): 28.850

Equal Opportunity Act 1984 s 91: 1.900 s 92: 1.900

Factors’ Acts Amendment Act 1878: 13.790 Fair Trading Act 2010 s 11(1): 17.20 s 35: 14.10

Financial Transaction Reports Act 1995: 24.930 Gaming and Betting (Contracts and Securities) Act 1985 s 4: 8.160 s 5: 8.160 Government Railways Act 1904 s 2: 21.500 s 37(3): 21.500 Interpretation Act 1984: 1.350 s 18: 1.360 s 19: 1.370 s 20: 1.220 s 67(1): 32.220 s 67(1a): 32.220 Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 ss 3A to 4: 12.250 s 4: 28.560 Law Reform (Miscellaneous Provisions) Act 1941 ss 2 to 3: 6.190 Law Reform (Statute of Frauds) Act 1962 s 2: 5.320, 5.330, 20.30 Legal Profession Act 2008 s 283: 8.270 Limitation Act 2005: 12.410 s 13: 12.410 s 18: 12.410 s 19: 12.410 Limited Partnerships Act 1909: 26.10, 26.620 Liquor Act 1970: 21.630 s 173(1): 21.630 Liquor Control Act 1988 s 107: 21.630 Liquor Licensing Act 1988 s 3(1): 21.630 s 176: 21.630 Magistrates Court (Civil Proceedings) Act 2004 s 3: 1.690 s 4: 1.630 s 6(1): 1.630 s 26: 1.690 Mining Act 1978 s 9: 22.330 Motor Vehicle Dealers Act 1973 ss 34 to 35: 17.1410

Table of Statutes

Motor Vehicle Repairers Act 2003: 17.1420

s 124: 7.390 s 125: 7.390

Motor Vehicle (Third Party Insurance) Act 1943: 25.1170

Public Interest Disclosure Act 2003: 32.480

Partnership Act 1895: 26.10 s 3: 26.30 s 6: 26.10 s 7: 26.30 s 8: 26.80, 26.130 s 10: 26.190 s 14: 26.370 s 15: 26.370 s 16: 26.380 s 17: 26.440 s 18: 26.460 s 19: 26.440 s 20: 26.480 s 21: 26.380, 26.430 s 22: 26.380 s 23: 26.380 s 24: 26.390, 26.400 s 25: 26.280 s 26: 26.350 s 30: 26.300 s 32: 26.310 s 33: 26.310 s 34: 26.220 s 35: 26.230 s 36: 26.230 s 37: 26.270 s 38: 26.290 s 39: 26.260 s 40: 26.260 s 41: 26.260 s 42: 26.610 s 45: 26.500 s 46: 26.520 s 47: 26.400 s 48: 26.410 s 49: 26.530 s 50: 26.560 s 53: 26.540 s 54: 26.550 s 55: 26.570 s 57: 26.590

Real Estate and Business Agents Act 1978 s 26: 13.860 s 60: 13.440

Petroleum and Geothermal Energy Resources Act 1967 s 9: 22.330 Property Law Act 1969 s 9(1): 5.180 s 11(1): 29.100 s 11(2): 10.20 s 11(3): 10.20 s 20: 10.160 s 34: 29.310 s 34(1): 5.330 s 85: 13.100 s 101: 29.330 s 113: 29.340

Registration of Deeds Act 1856: 22.480 Residential Tenancies Act 1987: 22.870 Sale of Goods Act 1895: 14.10 s 1: 14.20 s 2: 14.70 s 2(1): 6.180 s 2(2): 6.40 s 4: 14.180 s 4(1): 5.340 s 4(3): 14.200 s 6: 14.160, 14.610 s 7: 14.160, 14.610 s 8: 14.170 s 9: 14.170 s 10: 14.210 s 11: 14.400 s 12: 14.230 s 13: 14.240, 14.260 s 14: 14.270, 14.290 s 15: 14.380 ss 16 to 17: 14.440 s 18: 14.440 s 19: 14.540 s 20: 14.610 s 21: 14.640 s 21(1): 14.650 s 23: 14.680 s 25: 14.700, 14.710 s 27: 14.760 ss 27 to 28: 14.830 s 28: 14.170, 14.760 s 29: 14.770 s 30: 14.790 s 31: 14.800 s 32: 14.770, 14.820 s 34: 14.830 s 35: 14.830 s 36: 14.830 s 38: 14.850 s 39: 14.880 ss 40 to 42: 14.870 s 43: 14.890 s 44: 14.900 s 45: 14.910 s 46: 14.910, 14.920 s 47: 14.930 s 48: 14.960 s 49: 14.970

s 50: 14.1090 s 52: 14.1040 s 54: 14.390 s 57: 14.1110 s 59(2): 14.10 s 60: 14.30, 14.140, 14.870 Sale of Goods (Vienna Convention) Act 1986 s 5: 15.20 s 6: 15.20 Sale of Land Act 1970 s 22: 22.480 Statute Law Revision Act 2006: 21.450 Titles (Validation) and Native Title (Effect of Past Acts) Act 1995: 22.930 Transfer of Land Act 1893: 22.490, 22.800 s 60: 22.460 s 143: 13.100 s 144: 13.100 Travel Agents Act 1985: 13.860 Travel Agents Amendment and Expiry Act 2014 s 7: 13.860 Trustees Act 1962 s 7(1): 29.380 ss 17 to 20: 29.410 s 55: 29.550 s 59: 29.580 s 75: 29.650 s 77: 29.390 s 92: 29.640 s 98: 29.600 Volunteers (Protection from Liability) Act 2002: 28.80 Wills Act 1970 s 8: 29.260, 29.310 Workers’ Compensation and Injury Management Act 1981: 25.1150, 34.410

IMPERIAL Accumulation Act 1800 (39 & 40 Geo 111 c 98): 29.340 Australian Courts Act 1828: 1.470 Commonwealth of Australia Constitution Act 1900: 1.40, 1.60 Statute of Frauds 1677: 5.310, 5.320, 5.340, 5.360, 14.1110, 26.140

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Australian Commercial Law

Statute of Frauds 1677 — cont s 4: 5.320, 5.330, 20.30 Statute of Monopolies 1624: 30.1800 s 6: 30.1800 Statute of Westminster 1931: 1.470 s 4: 1.470 Thellusson Act: 29.340

UNITED STATES 47 Code of Federal Regulations s 73.682: 33.120 s 76.607: 33.120 Uniform Commercial Code Art 9: 19.900

UNITED KINGDOM Bills of Exchange Act 1882: 1.210 Companies Act 2006: 33.50 ss 172(1)(d) to (e): 33.50 Factories and Shops Act 1833: 34.370 Judicature Act 1873: 1.460 Marine Insurance Act 1906: 25.1220 Partnership Act 1890: 26.10, 26.60 Sale of Goods Act 1893: 1.210, 14.10

TREATIES AND CONVENTIONS Convention on Contracts for the International Sale of Goods 1980: 15.10, 15.20, 15.40, 15.70, 15.100, 15.110, 15.120, 15.240, 15.270, 15.330, 15.380 Art 1(1): 15.30 Art 1(1)(a): 15.30 Art 1(1)(b): 15.30 Art 2: 15.40 Art 3(1): 15.40 Art 3(2): 15.40 Art 4(a): 15.40 Art 4(b): 15.40 Art 5: 15.40 Art 6: 15.50 Art 7(1): 15.60 Art 7(2): 15.60 Art 8: 15.110 Art 8(1): 15.110 Art 8(2): 15.110 Art 8(3): 15.110 Art 9(1): 15.140

Art 9(2): 15.140 Art 10: 15.30 Art 11: 15.120 Art 13: 15.120 Art 14(1): 15.80 Art 14(2): 15.80 Art 15(1): 15.80 Art 15(2): 15.80 Art 16(1): 15.80 Art 16(2): 15.80 Art 17: 15.80 Art 18(1): 15.90 Art 18(2): 15.90 Art 18(3): 15.90 Art 19(1): 15.90 Art 19(2): 15.90 Art 19(3): 15.90 Art 20(1): 15.90 Art 23: 15.70 Art 25: 15.270 Art 26: 15.340 Art 28: 15.440 Art 29(1): 15.130 Art 29(2): 15.130 Art 30: 15.210 Art 31: 15.210 Art 33: 15.210 Art 35(1): 15.150 Art 35(2): 15.150, 15.157 Art 35(2)(a): 15.155 Art 35(2)(a) to (b): 15.150 Art 35(3): 15.157 Art 36: 15.157 Art 36(1): 15.157 Art 36(2): 15.157 Art 37: 15.157 Art 38: 15.160 Art 38(1): 15.160 Art 38(2): 15.160 Art 39: 15.160, 15.310 Art 39(1): 15.160 Art 39(2): 15.160 Art 40: 15.160 Art 41: 15.170 Art 42(1): 15.170 Art 42(2)(a): 15.170 Art 42(2)(b): 15.170 Art 43(1): 15.170 Art 44: 15.160, 15.170 Art 45(1): 15.310 Art 45(2): 15.310 Art 45(3): 15.310 Art 46(1): 15.310 Art 46(2): 15.310 Art 46(3): 15.310 Arts 46 to 52: 15.310 Art 47(1): 15.240 Art 47(2): 15.240 Art 48(1): 15.240 Art 48(2): 15.240 Art 49(1): 15.360

Art 49(2): 15.360 Art 50: 15.157 Art 51(2): 15.360 Art 53: 15.180, 15.210 Art 54: 15.180, 15.190 Art 55: 15.200 Art 58(1): 15.200 Art 58(2): 15.200 Art 58(3): 15.200 Art 60: 15.210 Art 61(1): 15.320 Art 61(2): 15.320 Art 62: 15.320 Arts 62 to 65: 15.320 Art 63(1): 15.240 Art 63(2): 15.240 Art 64: 15.350 Art 64(1)(a): 15.350 Art 64(1)(b): 15.350 Art 64(2): 15.350 Art 65(1): 15.320 Art 65(2): 15.320 Art 66: 15.220 Art 67(1): 15.220 Art 68: 15.220 Art 70: 15.220 Art 71(1): 15.260 Art 71(3): 15.260 Art 72(1): 15.340 Art 72(2): 15.340 Art 72(3): 15.340 Art 73(1): 15.370 Art 73(2): 15.370 Art 73(3): 15.370 Art 74: 15.380, 15.400 Art 75: 15.400, 15.410 Art 76(1): 15.420 Art 76(2): 15.420 Art 77: 15.420 Art 78: 15.430 Art 79(1): 15.250 Art 79(2): 15.250 Art 79(3): 15.250 Art 79(4): 15.250 Art 79(5): 15.250 Art 81(1): 15.330 Art 81(2): 15.450 Art 82(1): 15.450 Art 82(2): 15.450 Art 83: 15.330 Art 84(1): 15.430 Art 85: 15.230 Art 86(1): 15.230 Art 87: 15.230 Art 88(1): 15.230 Art 88(2): 15.230 Art 88(3): 15.230 Art 92: 15.100 Art 95: 15.30 Art 96: 15.120 Art 100(2): 15.30

Table of Statutes

Convention on the Elimination of All Forms of Discrimination Against Women Art 2(e): 33.90

International Convention on the Elimination of All Forms of Racial Discrimination Art 2(e): 33.90

Convention on the Rights of the Child Art 32(1): 33.90

International Covenant on Economic, Social and Cultural Rights Art 10(3): 33.90

Council of Europe Convention on Cybercrime: 16.460, 16.470 ILO Convention concerning the Prohibition and Immediate Action for the Elimination of the Worst Forms of Child Labour (No 182): 33.90 International Convention for the Protection of Industrial Property: 30.2170

Patent Co-operation Treaty 1970: 30.2170 Protocol Relating to the Madrid Agreement Concerning the International Registration of Marks: 30.2550 United Nations Convention Against Corruption: 33.60

Art 12(1): 33.60 Art 12(2)(b): 33.60 Art 12(2)(f): 33.60 Art 12(3): 33.60 Arts 21 to 22: 33.60 United Nations Convention on the Use of Electronic Communications in International Contracts: 16.30, 16.60, 16.80, 16.100

lxxxiii

Table of Abbreviations ABC … Australian Bankruptcy Cases. 1929-1964. ABC (ns) … Australian Bankruptcy Cases (New Series). 1999 onwards. AC …Law Reports, Appeal Cases. 1891 onwards. ACLC … Australian Company Law Cases. 1971 onwards. ACLR … Australian Company Law Reports. 1974-1989. ACSR … Australian Corporations and Securities Reports. 1990 onwards. A Crim R … Australian Criminal Reports. 1980 onwards. ACTCA … Australian Capital Territory Court of Appeal. ACTSC … Supreme Court of the Australian Capital Territory ACTLR … Australian Capital Territory Law Reports. 2007 onwards. ACTR … Australian Capital Territory Reports. 1973 onwards. ACompT … Australian Competition Tribunal AIPC … Australian Intellectual Property Cases. 1982 onwards. AJR … Australian Jurist Reports. 1870-1874. ALD … Administrative Law Decisions. 1976 onwards. ALJ … Australian Law Journal. 1927 onwards. ALJR … Australian Law Journal Reports. 1958 onwards. ALR … Australian Law Reports. 1973 onwards. ALT … Australian Law Times. 1879-1928. ANZ Insurance Cases … Australian and New Zealand Insurance Cases. 1979 onwards. All ER … All England Law Reports. 1936 onwards. App Cas … Law Reports. Appeal Cases. 1876-1890. Argus LR … Argus Law Reports. 1895-1973. ASC … Australian Consumer Sales and Credit Law Reporter. 1997 onwards. ASTLR … Australian Succession and Trusts Law Reports. 2006 onwards. ATPR … Australian Trade Practices Reports. 1974-2010. Renamed Australian Competition and Consumer Law Reports. 2011 onwards. Aust Contract Reports … Australian Contract Reports. 1991 onwards. Aust Torts Reports … Australian Torts Reports. 1984 onwards. BCL … Building and Construction Law. 1985 onwards. BFRA … Banking and Finance Reports of Australia. 2003 onwards. BPR … Butterworths Property Reports. 1950 onwards. Bus LR … Business Law Reports. 2007 onwards.

CLR … Commonwealth Law Reports. 1903 onwards. CPD … Common Pleas Division. 1875-1880. Ch … Law Reports. Chancery. 1891 onwards. Ch D … Law Reports. Chancery Division. 1876-1890. Ch App … Chancery Appeal Cases. 1865-1875. Cth … Commonwealth of Australia. DCR (NSW) … New South Wales District Court Reports. 1963-1976. DCLR (NSW) … Lawbook Co.’s District Court Law Reports. 2001 onwards. DLR … Dominion Law Reports. 1912 onwards. ER … English Reports. 1220-1865. Ex … Exchequer Reports. 1848-1856. Ex D … Exchequer Division. 1875-1880. F 3d … Federal Reporter, Third Series. 1993 onwards. FCA … Federal Court of Australia. FCAFC … Federal Court of Australia Full Court. FCCA … Federal Circuit Court of Australia. 2013 onwards. FCR … Federal Court Reports. 1984 onwards. Fed Appx … Federal Appendix. 2001 onwards. FLR … Federal Law Reports. 1956 onwards. FMCA … Federal Magistrates Court of Australia. 20002013. FSR … Fleet Street Reports. 1975 onwards. F Supp … Federal Supplement. 1932 onwards. HCA … High Court of Australia. HCASL … High Court of Australia Special Leave Disposition. 2008 onwards. HLC … House of Lords Cases (Clark). 1847-1866. ILM … International Legal Materials. 1962 onwards. IMP … Imperial. IPR … Intellectual Property Reports. 1982 onwards. IR … Industrial Reports. 1982 onwards. KB … Law Reports. King’s Bench. 1901 onwards. LJ Ch … Law Journal Reports. Chancery. 1831-1946. LJ Ex … Law Journal Reports. Exchequer. LJKB … Law Journal Reports. King’s Bench. 1831-1946. LJPC … Law Journal Reports. Privy Council. 1865-1946. LJQB … Law Journal Reports. Queen’s Bench. 18311946. LR (NSW) Eq … Law Reports. NSW Equity. 1880-1900. LR App Cas … Law Reports. Appeal Cases. 1876-1890.

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Australian Commercial Law

LR Ch App … Law Reports. Chancery Appeal Cases. 1865-1875. LR CP … Law Reports. Common Pleas. 1865-1875. LR Eq … Law Reports. Equity. 1865-1875. LR Ex … Law Reports. Exchequer. 1865-1875. LR Ex D … Law Reports. Exchequer Div. 1876-1880. LR PC … Law Reports. Privy Council, Appeal Cases. 1865-1875. LR QB … Law Reports. Queen’s Bench. 1865-1876. LT … Law Times. 1859-1947. Lloyd’s Rep … Lloyd’s List Law Reports. 1951 onwards.

MVR … Motor Vehicle Reports. 1984 onwards. NNTTA … National Native Title Tribunal of Australia. NSW CA … New South Wales Court of Appeal. NSW Conv R … New South Wales Conveyancing Reports. 1980 onwards. NSWLR … New South Wales Law Reports. 1800-1900, 1971 onwards. NSWSC … New South Wales Supreme Court. NTCA … Northern Territory Court of Appeal. NTLR … Northern Territory Law Reports. 1992 onwards. NTR … Northern Territory Reports. 1978 onwards. NTSC … Northern Territory Supreme Court. NZLR … New Zealand Law Reports. 1883 onwards. P … Law Reports. Probate Division. 1891-1971. PD … Probate Division. 1875-1890. QB … Queen’s Bench Reports. 1841-1852. QB … Law Reports. Queen’s Bench. 1891 onwards. QBCCMCmr … Queensland Body Corporate and Community Management Commissioner. QBD … Law Reports. Queen’s Bench. 1876-1890. QCA … Queensland Court of Appeal. QSC … Queensland Supreme Court. QSR … State Reports (Queensland). 1902-1957. Qd R … Queensland Reports. 1958 onwards.

RPC … Reports of Patent Cases. 1884 onwards. SALR … South Australian Law Reports. 1865-1892, 1899-1920. SASC … South Australian Supreme Court. SASCFC … South Australian Supreme Court Full Court. SASR … South Australian State Reports. 1921 onwards. SCR (NSW) … Supreme Court Reports, New South Wales. 1862-1876. SR (NSW) … New South Wales State Reports. 19011970. SR (WA) … State Reports (Western Australia). 1980 onwards. TLR … Times Law Reports. 1855-1952. Tas LR … Tasmanian Law Reports. 1905-1940. Tas R … Tasmanian Reports. 1979 onwards. TASFC … Tasmanian Supreme Court Full Court. TASSC … Tasmanian Supreme Court. TASWRCT … Tasmanian Workers Rehabilitation and Compensation Tribunal. Tas SR … Tasmanian State Reports. 1941-1978. UNTS … United Nations Treaty Series. 1946 onwards. US … United States Reports. 1790 onwards. VLR … Victorian Law Reports. 1875-1956. VR … Victorian Reports. 1957 onwards. VSC … Victorian Supreme Court. VSCA … Victorian Court of Appeal. WALR … Western Australian Law Reports. 1898-1959. WAR … Western Australian Reports. 1960 onwards. WASC … Western Australian Supreme Court. WASCA … Western Australian Court of Appeal. WASTR … Western Australian Court of Appeal. WL … Westlaw citation. WLR … Weekly Law Reports. 1953 onwards. WN (NSW) … Weekly Notes, New South Wales. 18841970. WW & A’B … Wyatt, Webb and A’Beckett’s Reports (Victoria). 1864-1869.

Glossary ab initio From the beginning.

ipso jure By the law itself.

bona fide In good faith; honestly without fraud, collusion

lex loci contractus The law of a place where a contract is

or participation in wrong-doing. caveat emptor Let the buyer beware. cestui que trust A person for whom another holds in trust

property or an interest in property; the beneficiary under a trust. chose in action A right of action to recover personal property that is intangible such as a debt, contractual rights, etc. chose in possession Personal property that is tangible such as goods or chattels which are capable of physical possession. consensus ad idem Agreement as to the same thing. The exact correspondence between offer and acceptance necessary for a binding contract. contra proferentum Against the person who alleges it. de facto In fact; whether by right or not. de jure By right. de novo New, starting again. dicta See obiter dictum. Statements of opinion by a judge

not strictly necessary to her or his decision. ex gratia Voluntarily; without legal obligation. ex parte In the absence of one side. 1. Used in such phrases

as an “ex parte statement”, ie a statement made by one side. 2. An application in a judicial proceeding made: (a) by an interested person who is not a party, eg a trustee applying for directions as to administration of trust property; (b) by one party in the absence of the other. ex post facto Retrospectively. executory Still to be carried out or performed. flagrante delicto In the act of committing a crime; caught or

arrested in the act. ignorantia juris non excusat Ignorance of the law is no

excuse. in re In the matter of. inter alia Among other things. inter vivos Between living persons. intra vires Within the powers (of). ipso facto By that very fact.

made. lex mercatoria The law merchant. mala fide In bad faith. mens rea A guilty mind; the intention to commit a

wrongful act. nemo dat rule (The full expression is nemo dat quod non habet.) No-one can pass to another a better title than

he himself has. novation A new or substituted agreement. obiter dictum A saying by the way. An observation by a

judge on a legal question suggested by a case before her or him, but not arising in such manner as to require decision. It is therefore not binding as a precedent. overt Open. per annum By the year. per cent By the hundred. per curiam By the court. per diem By the day. per se By itself. Taken alone. pro rata In proportion. quantum meruit For as much as he or she has earned. The

defendant has received some benefit from the plaintiff and would be unjustly enriched if not required to pay a reasonable sum for the benefit accepted. quantum valebant As much as they are worth. An action

analogous to quantum meruit but brought in respect of goods supplied. quid pro quo Something for something. Consideration. ratio decidendi The reason/s for the decision; the essential

legal reasoning for the decision in a case. The binding precedent established by the case as distinct from mere obiter dictum or dicta.

lxxxviii

Australian Commercial Law res ipsa loquitur The thing speaks for itself. This maxim

uberrimae fidei Of the fullest confidence. A contract is said

applies in actions for negligence where the circumstances of an accident are such that it is so improbable that it would have occurred without the negligence of the defendant that a reasonable jury would find without further evidence that it was so caused. res judicata A matter already settled by judicial decision. restitutio in integrum Restoration to the original position.

to be uberrimae fidei when the promisee is bound to communicate to the promisor every fact and circumstance which may influence her or him in deciding to enter into the contract or not. ultra vires Beyond the power. An act in excess of the authority conferred by law, and therefore invalid.

scienter Knowingly; knowledge. stare decisis To stand by that which has been decided. The

principle of binding precedent whereby the decision in one case serves as a legal precedent in the deciding of a subsequent similar case. sub judice Under judicial consideration. sui juris A person who can validly contract and bind herself or himself by legal obligation uncontrolled by any other person is sui juris. tort A civil wrong or injury (as contrasted with a criminal

wrong).

vicarious liability The liability of one person for the actions

of another, eg the liability of an employer for the actions of her or his employee. vice versa The order being reversed. vis-a-vis The relationship of one or two persons or things to the other, when facing or situated opposite each other. void Of no legal effect. voidable An agreement which maybe affirmed or rejected at the option of one of the parties. volenti non fit injuria That to which a person consents cannot be considered an injury; a defence to an action in tort for, eg personal injury.

PART PT 1 INTRODUCTION

Chapter 1

The Australian Legal System

chapter 1

The Australian Legal System [1.20] The nature of law....................................................................................................................................................... 4 [1.40] The Australian constitutional system............................................................................................................ 4 [1.200] Sources of law....................................................................................................................................................... 10 [1.210] Statute law ............................................................................................................................................................. 10 [1.440] Judge-made law ................................................................................................................................................... 20 [1.540] The doctrine of precedent and the hierarchy of Australian courts........................................... 29 [1.720] Classification of law and legal proceedings .......................................................................................... 36 [1.840] Alternative methods of dispute resolution............................................................................................ 40

Introduction [1.10] In order to more fully appreciate the legal principles applicable to the branches of commercial law discussed in the following chapters of this work, it is useful to understand the legal framework in which such laws operate. The basic features of the Australian legal system are outlined in this chapter under the following headings: 1.

The nature of law.

2.

The Australian constitutional system.

3.

The sources of law.

4.

The doctrine of precedent and the hierarchy of the courts.

5.

Classification of law and legal proceedings.

6.

Alternative methods of dispute resolution.

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Pt 1 Introduction

The nature of law [1.20] The object of law is to provide rules governing the relationships between the members of society and between the government and its citizens to avoid conflict. Where conflict cannot be avoided, the law provides a means of adjudication or peaceful settlement through the instrumentality of an impartial third party, namely the courts. Basically, law can be defined as the body of principles, standards and rules that the courts apply in the resolution of disputes brought before them.

Commercial law [1.30] The present work is primarily concerned with a particular aspect of legal regulation – commercial or business law. In other words, it is concerned with those parts of the law most commonly associated with ordinary business activities. These include the law of contract, agency, sale, credit, bills of exchange and cheques, partnership, companies, bankruptcy, and insurance. In recent times there has been a considerable body of statute law enacted to regulate particular aspects of commercial law. These statutes include the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly, the Trade Practices Act 1974 (Cth)) which, inter alia, proscribes certain restrictive and unfair trading practices; and the Corporations Act 2001 (Cth) which regulates the formation and general operation of companies. On the other hand, there are still areas of commercial law that are not regulated by statute but are determined by the principles of the common law, that is, the law developed by judicial decision in particular cases over a long period of time. For example, much of the law of contract is still largely based on common law principles. It will be observed from the previous discussion that the development of the law, including commercial law, is a dynamic rather than static process. It must be constantly reinterpreted and amended if it is to adequately reflect and serve the needs of a changing society. Accordingly, it is important to be familiar with the institutions charged with the responsibility of making, developing and implementing the law, as well as being aware of the principles of law applicable to a particular transaction.

The Australian constitutional system A federal system [1.40] Australia is a federation. It comprises a central government, which has certain law-making powers, and a number of States or Territories that also have law-making powers. The effect is that there are two legal systems for each citizen: the central or federal legal system (the Commonwealth); and that of each State or Territory. A federal legal system like Australia is in contrast with a unitary legal system in which there is a single legal system which applies throughout the country. A feature of a federal legal system is that there is usually a written constitution, that is, a document setting out the powers of the federal government and its legal relationship with the States. In Australia this is found in the Commonwealth of Australia Constitution Act 1900 (IMP), an Act of the United Kingdom Parliament, which contains the Commonwealth Constitution.

chapter 1 The Australian Legal System

In addition to the Commonwealth Constitution, each of the States making up the federation also has its own Constitution which determines the system of government for that State. The law-making power of each of the territory legislatures is constrained by the federal statute which provides for the territory’s self-government. The Australian constitutional system of government comprises three main branches: (a)

the legislature – the body which makes laws, usually in the form of statutes (Acts of Parliament);

(b)

the executive – the body which administers and polices the law; and

(c)

the judiciary – the body which declares what the law is and interprets the law, resolves disputes concerning its application, and determines the sanctions for its breach.

In Australia, the Commonwealth Constitution (s 61) provides that the executive power of the Commonwealth is vested in the Queen and exercisable by the Governor-General. Accordingly, the executive arm of government in Australia is referred to as “the Crown”. The same term is used to describe the State executive governments.

The constitutional development of the Australian States [1.50] Although the three separate branches of government (legislative, executive and judicial) are clearly apparent today, such a separation of powers was only gradually achieved in the Australian colonies (as the States were called prior to Federation in 1901). In broad terms, the basic pattern of legal development in each of the Australian colonies was to initially vest authority in the Governor, then as the colony developed, to set up a Legislative Council consisting of persons nominated by the Governor to advise him in the performance of his official functions. The next stage was the introduction of representative government, where the members of the legislature were elected by the colonists rather than nominated by the Governor. The final stage was the introduction of responsible government, under which the executive branch of government was made responsible to the legislature.

The Federation movement [1.60] The mid-19th century onwards saw the constitutional development of Australia into six independent colonies, each with their own system of government and legal system. In the last decade of the 19th century, the question of federation of the Australian colonies became an increasingly real issue as it was gradually realised that a federal body could deal more effectively with issues such as national defence and intercolonial customs barriers. A convention of representatives from each of the colonies to consider a scheme for a federal Constitution was held in 1891. A second convention was held in 1897 and 1898. The product of these conventions was the drafting of the Commonwealth Constitution Bill. This was ultimately accepted by the majority of electors in each of the colonies (with the exception of Western Australia) at a referendum held in 1899. The Constitution Bill was enacted by the Imperial Parliament in 1900 as the Commonwealth of Australia Constitution Act 1900 (IMP). At this point, a majority of electors in Western Australia also voted in favour of joining the federation. Pursuant to royal proclamation, the Commonwealth of Australia came into being on 1 January 1901.

The Commonwealth Constitution [1.70] The Commonwealth Constitution created a federal Parliament, called the Commonwealth Parliament, consisting of the Queen, the Senate and the House of Representatives: Constitution, s 1.

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Provision was also made for a Governor-General to be the Queen’s representative in Australia: s 61. The Constitution gave the Commonwealth Parliament certain defined legislative powers but left the Australian States (as the former colonies were now called) as self-governing political units each with its own Constitution, Parliament, and courts: ss 51, 106, 107. Mention needs to be made of the three branches of government under the Commonwealth Constitution: the executive, the legislature and the judiciary. To some extent, the Constitution embodies a separation between these three branches of government. However, as will be seen at [1.90] and [1.180], that separation is stronger between the judiciary and the other two branches, than between the executive and the legislature.

The executive [1.80] Under the Constitution, the executive power of the Commonwealth is vested in the Queen and is exercisable by the Governor-General as the Queen’s representative: Constitution, s 61. The GovernorGeneral has an Executive Council (comprising two or three government Ministers) to advise on matters concerning the government of the country: s 62. The Governor-General is also empowered to appoint Ministers to administer the Commonwealth departments of state. The Constitution further provides that no person can be a Minister of state unless he or she is a member of the Senate or House of Representatives: s 64. In other words, a government Minister must be a Member of Parliament. By convention, the Governor-General invites the leader of the political party having the majority of members in the House of Representatives to form a government. The leader (or in the case of the Labor Party, its Caucus) selects the members who are to be Ministers and they are then appointed by the Governor-General. The Prime Minister allocates portfolios to the Ministers so appointed, that is, each Minister becomes responsible for one or more government departments. An important constituent of modern parliamentary government is the Cabinet. The Cabinet comprises those members of the ministry responsible for determining the policy and objectives of the government. The government is made responsible to the electorate through Parliament in that: (a)

Ministers must be Members of Parliament and accordingly may be questioned in Parliament about their running of the country;

(b)

where the government loses the confidence of Parliament it must resign; and

(c)

an individual Minister who loses the confidence of Parliament must resign.

[1.90] As a matter of convention the Governor-General will almost invariably act as advised by the Prime Minister. However, there are certain situations where the Governor-General may exercise her or his powers, for example to dismiss a government, without or against the advice of Ministers, such as where the government of the day has lost the confidence of Parliament but refuses to resign, or to prevent an illegality occurring. It is constitutionally permissible for the Parliament to delegate part of its legislative power to the Executive: Attorney-General (Cth) v The Queen; Ex parte Boilermakers Society of Australia (1957) 95 CLR 529 at 83-84, 86, 101, 117. An example of such a law is where a statute confers upon the Governor-General the power to make regulations for specified purposes.

The legislature [1.100] Australia has a federal system of government with governmental power being divided between the Commonwealth government and the individual States. The Constitution enumerates those subject matters in respect of which the Commonwealth Parliament has power to legislate. The Commonwealth Parliament

chapter 1 The Australian Legal System

only has such power as the Constitution confers upon it and can only make laws on such matters as are expressly, or by necessary implication, mentioned in the Constitution as being within Commonwealth power. Power to make laws on all other matters resides exclusively in the State Parliaments. As a result, most matters of private law, such as the law of contracts and torts, and most criminal matters are governed by State law. The areas in which the Commonwealth Parliament has power to legislate are set out primarily in s 51 of the Constitution. The more important of these include the power to make laws with respect to the following matters: (a)

trade and commerce with other countries, and among the State (s 51(i));

(b)

taxation (s 51(ii));

(c)

postal, telegraphic, telephonic and other like services (including broadcasting and television) (s 51(v));

(d)

defence (s 51(vi));

(e)

currency, coinage and legal tender (s 51(xii));

(f)

banking and insurance (other than State banking or insurance not extending beyond the limits of the State concerned) (s 51(xiii), (xiv));

(g)

bills of exchange and promissory notes (s 51(xvi));

(h)

bankruptcy and insolvency (s 51(xvii));

(i)

copyright, patents, designs and trade marks (s 51(xviii));

(j)

foreign corporations and trading or financial corporations (s 51(xx));

(k)

external affairs (s 51(xxix)); and

(l)

conciliation and arbitration for the prevention and settlement of industrial disputes extending beyond the limits of any one State: s 51(xxxv).

Most of the legislative powers of the Commonwealth Parliament enumerated above are concurrent powers – they can be exercised by either the Commonwealth or the States. Thus, the fact that the Commonwealth has been given power to legislate with respect to such matters does not necessarily mean that the States cannot make laws on the same subject matter. However, if a State law is inconsistent with a law of the Commonwealth, the Commonwealth law prevails, and the State law, to the extent of the inconsistency, is invalid: s 109. In addition to its concurrent powers, the Commonwealth Parliament also has a limited number of exclusive powers (or matters upon which it alone can legislate to the exclusion of the State Parliaments). These exclusive powers include the power to impose customs and excise duties: s 90. The High Court gives a wide interpretation to the powers given to the Commonwealth Parliament under s 51 of the Constitution: Amalgamated Society of Engineers v Adelaide Steamship Co Ltd (1920) 28 CLR 129 at 151. Several of these powers are of particular relevance to business.

The corporations power [1.110] The corporations power (Constitution, s 51(xx)) provides that the Commonwealth Parliament has power to make laws with respect to “Foreign corporations, and trading or financial corporations formed within the limits of the Commonwealth”. This power extends to the regulation of monopolies and restrictive trade practices among corporate trading enterprises: Strickland v Rocla Concrete Pipes Ltd (1971) 124 CLR 468 at 489, 511-513. The great potential that this power offers for the regulation of the economy is apparent from the Work Choices Case (New South Wales v Commonwealth (2006) 229 CLR 1). That decision upheld the validity of

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legislation that shifted the primary constitutional basis for federal industrial relations law from the conciliation and arbitration power to the corporations power. The Court held that laws regulating the relationship between a corporation and its employees fell within the corporations power. The power was not to be given a restricted meaning to avoid circumvention of the limitations upon the scope of the conciliation and arbitration power. Furthermore, the corporations power supports laws that “single out constitutional corporations as the object of statutory command”: New South Wales v Commonwealth (2006) 229 CLR 1 at [198]. One limitation to the power is that it does not extend to the incorporation of corporations: New South Wales v Commonwealth (1990) 169 CLR 482 at 498.

Trade and commerce power [1.120] The trade and commerce power empowers the Commonwealth Parliament to make laws with respect to trade and commerce with other countries and among the States: Constitution, s 51(i). In general, this power extends to interstate trade, but not to wholly intrastate trade.

Taxation power [1.130] The Commonwealth has power to make laws with respect to taxation: Constitution, s 51(ii). A tax is a compulsory exaction of money, but not a payment for services rendered: Air Caledonie v Commonwealth (1988) 165 CLR 462 at 466-467. In making laws under this power, the Commonwealth Parliament may not discriminate between States or parts of States.

The external affairs power [1.140] Under the “external affairs” power (s 51(xxix)) the Commonwealth has power to make laws with respect to “external affairs”. This has been interpreted by the High Court as including power to make laws for carrying out international agreements, even though the topic would not otherwise come within federal power. Given the great variety of matters which are the subject of international agreement, there is considerable potential for federal legislation concerning areas over which the Commonwealth would not otherwise have power. In Commonwealth v Tasmania (1983) 158 CLR 1 (the Tasmanian Dam Case), the High Court upheld the validity of Commonwealth legislation which gave effect to the World Heritage Convention. The result was that by Commonwealth legislation the federal government was able to stop the Tasmanian Hydro-Electric Commission’s preparatory construction work for a dam on the Gordon-below-Franklin River, an area which had been entered onto the World Heritage List. Similarly, in Victoria v Commonwealth (1996) 187 CLR 416, the court upheld aspects of a federal law regulating industrial relations as an implementation of various treaties.

Reference power [1.150] Section 51(xxxvii) of the Constitution authorises the Commonwealth Parliament to make laws with respect to “[m]atters referred to the Parliament of the Commonwealth by the Parliament or Parliaments of any State or States, but so that the law shall extend only to States by whose Parliaments the matter is referred, or which afterwards adopt the law”. Following references of power relating to corporations by all State Parliaments, the Commonwealth Parliament relied upon this power in enacting the Corporations Act 2001 (Cth). Other recent references of power have concerned industrial relations, personal property securities, credit law and business names.

Freedom of interstate trade [1.160] The Commonwealth Parliament has power to make laws with respect to “trade and commerce with other countries, and among the States”: Constitution, s 51(i). However, the Constitution also restricts

chapter 1 The Australian Legal System

the scope of this (and other) federal and State legislative powers by providing that “trade, commerce and intercourse among the States … shall be absolutely free”: s 92. Until 1988, s 92 was a major limitation upon Commonwealth legislative power. The impact of this provision upon federal legislative power was reduced somewhat by the High Court’s interpretation of this provision in Cole v Whitfield (1988) 165 CLR 360. In that case, the court unanimously held that s 92 will only have the effect of invalidating “discriminatory burdens of a protectionist kind”: Cole v Whitfield (1988) 165 CLR 360 at 398. In Betfair Pty Ltd v Racing New South Wales (2012) 249 CLR 217 the court emphasised that the focus of s 92 is interstate trade, not individual traders: at [50], [60], [114].

Duties of excise or customs [1.170] Section 90 of the Constitution provides that the power to impose excise duties or customs duties is exclusive to the Commonwealth Parliament. The State Parliaments may not impose excise duties or customs duties. A majority of the High Court has taken the view that an excise duty is “an inland tax on a step in production, manufacture, sale or distribution of goods”: Ha v New South Wales (1997) 189 CLR 465 at 490. A customs duty is a tax imposed upon the import or export of goods to or from Australia.

The judiciary [1.180] The Commonwealth Constitution provided for the setting up of the High Court of Australia: Constitution, Ch III, ss 71 – 80. The principal functions of the High Court are to interpret the Constitution, act as an appellate court from other courts exercising federal jurisdiction, hear appeals from the Supreme Courts of the States, and in certain cases act as a court of original jurisdiction. The High Court occupies a unique position of considerable constitutional importance. As the court responsible for interpreting the Constitution, the High Court determines the constitutionality of legislation (that is, whether a particular Commonwealth or State statute was a valid exercise of legislative power). As a result, the court is particularly concerned to safeguard the separation of judicial and non-judicial power. Hence judicial power may not be conferred upon non-judicial bodies, nor may non-judicial power be conferred upon federal courts: Brandy v Human Rights and Equal Opportunity Commission (1995) 183 CLR 245 at 260, 269. The High Court is the highest court of appeal from decisions of the highest State and Territory courts and the Federal Court. The Court’s judgments are authoritative statements of law which constitute binding precedents for all other Australian courts. In Western Export Services Inc v Jireh International Pty Ltd (2011) 282 ALR 604 at [3], the High Court emphasised that until it “disapproves or revises” one of its previous decisions, that prior decision is binding upon intermediate appellate courts and judges at first instance. The binding nature of decisions of the High Court on all other Australian courts enables the maintenance of the unity of the common law across Australia. In other words, the High Court “has become the final court of appeal, not merely in matters of federal jurisdiction but as to the principles of the common law applicable throughout Australia”: Cullen v Trappell (1980) 146 CLR 1 at 6. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 563-564, the High Court unanimously held that there is one Australian common law rather than a common law particular to each State. 1

Implied freedom of communication on political matters [1.190] An example of what is sometimes referred to as “judicial activism” on the part of the High Court is the court’s recognition of an implied constitutional freedom of communication in relation to political 1

L Boyle, “An Australian August Corpus: Why there is Only One Common Law in Australia” (2016) 27 Bond Law Review 27.

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matters. In Australian Capital Television Pty Ltd v Commonwealth (1992) 177 CLR 106, it was held that legislation which prohibited political advertising on television and radio during an election period was invalid because it infringed this implied freedom. In Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 the High Court unanimously affirmed the existence of an implied freedom of communication under the Constitution in respect of governmental and political matters to enable people to exercise a free and informed choice as electors. This implied freedom arises from the system of representative government for which the Constitution provides: at 559. The right of those involved in government and politics to sue for defamatory statements had to be measured against the implied freedom. As a result, the common law of defamation was developed to accommodate constitutional requirements: at 570-571. In McCloy v New South Wales (2015) 89 ALJR 857 the court modified the test for infringement of the implied freedom by incorporating a three-stage proportionality test: at [2].

Sources of law [1.200] The basic sources of law in Australia are: (a)

statute law (Acts of Parliament); and

(b)

judge-made law (legal principles enunciated in judicial decisions).

Statute law [1.210] The primary responsibility for making changes in the law falls on Parliament which exercises this legislative function. Parliament passes Bills which, on receipt of the royal assent, are called “statutes”, or Acts of Parliament. These statutes become part of the body of law known as “statute law”. Statutes may: (a)

bring new laws into existence;

(b)

repeal old laws created either by earlier statutes, or by decisions of the courts, which have ceased to be appropriate to present social needs; or

(c)

codify the law, that is, include not only previous statutory provisions but also common law principles derived from decisions of the courts.

Two of the best known examples of codifying statutes are the United Kingdom Sale of Goods Act 1893 (UK) and the Bills of Exchange Act 1882 (UK) (both Acts being later adopted in Australia). These Acts gathered together in statutory form principles based originally on the customs of merchants as developed by numerous decisions of the common law courts. Mention should also be made of what is known as a “consolidating statute”, the object of which is to assemble and re-enact a number of previous statutory provisions. For example, the legislation on a particular subject may have been subject to numerous amendments and it becomes desirable to bring them together into one statute, or, a “consolidating Act”.

The making of statutes [1.220] Where it is intended to make a new law on a particular matter or amend an existing law, a Bill will be drafted, usually by parliamentary counsel. Bills may be introduced in either House but will normally be introduced into the particular House of Parliament in which the Minister in charge of the Bill sits. Most

chapter 1 The Australian Legal System

Bills tend to be introduced in the Lower House, that is, the House of Representatives of the Commonwealth Parliament, or the Legislative Assembly in the case of the State Parliaments. After introduction of a Bill to the House, it will have to pass what are called three readings. The first reading is generally a formality involving stating the name of the Bill and moving that it be read a first time. If this is agreed to, the Bill will be printed and distributed to members of the House. The second reading of the Bill involves the Minister moving that the Bill be read a second time and the members will then debate the broad principles of the Bill. On the passing of the motion for a second reading, the Bill then moves on to the next stage, known as the committee stage. The committee may be a select or standing committee of the House, or the whole House sitting as a committee. At this point each clause of the Bill may be debated and amendments made; in practice only the controversial parts of the Bill will be objected to and debated. Once all the clauses of the Bill have been considered the Bill, if approved, is reported to the House as having passed the committee stage. A motion is then proposed that the Bill be read a third time. The third reading simply involves the House voting on the Bill as it stands after the committee stage. Once passed, the Bill is then sent to the other House, usually the Upper House (that is, the Senate of the Commonwealth Parliament or the Legislative Council in the States other than Queensland), and the same process is repeated. If the Bill is passed by the Upper House unamended, it is sent to the Governor-General of the Commonwealth, or the Governor of the State, for assent. After assent the Bill becomes an Act of Parliament. An Act which is to be proclaimed to come into operation has no legal effect until such date has been proclaimed and has arrived. The Act will commence from the date specified for that purpose in it, or it may provide that it is to operate from a date to be proclaimed by the Governor-General or Governor and published in the Government Gazette. Where a Commonwealth Act is silent as to its commencement, it commences 28 days after the Governor-General’s assent was given. 2 Where a State or Territory Act does not make provision for its commencement, the various statutory interpretation laws make varying provision for the commencement date. It is the date of assent in Queensland, South Australia and the Northern Territory; 14 days after assent in Tasmania; 28 days after assent in New South Wales and Western Australia; and one year after assent in Victoria. 3 In the Australian Capital Territory, legislation commences on the day after its notification day, that is, the day the Act is notified in the Government Gazette or the electronic register of legislation. However, if the Act provides for a different commencement date, the law commences on that date. 4 Problems may arise where an Upper House refuses to pass a Bill which has been passed by a Lower House. With respect to the Commonwealth Parliament, this situation is provided for in s 57 of the Constitution, which sets down the following procedure for resolving such “deadlock”: (a)

If the Senate rejects a Bill, fails to pass it or passes it with amendments unacceptable to the House of Representatives, then after three months the Bill can be reintroduced in the House of Representatives.

(b)

If the House of Representatives again passes the Bill but the Senate still rejects it, etc, then the Governor-General may dissolve both Houses (known as a “double dissolution”) and call an election.

2 3

4

Acts Interpretation Act 1901 (Cth), s 3A(2). Interpretation Act 1987 (NSW), s 23(1); Interpretation of Legislation Act 1984 (Vic), s 10A(3); Acts Interpretation Act 1954 (Qld), s 15A; Acts Interpretation Act 1915 (SA), s 7; Interpretation Act 1984 (WA), s 20; Acts Interpretation Act 1931 (Tas), s 9(3); Interpretation Act 1978 (NT), s 6. Legislation Act 2001 (ACT), s 73(1).

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(c)

If, after the election, the House of Representatives passes the Bill and the Senate still rejects it, etc, the Governor-General may convene a joint sitting of both Houses and if there is a majority vote in favour of the Bill then it goes to the Governor-General for assent.

The State Constitutions in New South Wales, Victoria and South Australia also contain provisions for resolving such “deadlocks” between the two Houses. 5 In Western Australia and Tasmania there are no such provisions and the Bill simply does not become law. The Queensland Parliament consists of a single House. A statute remains in force until it is repealed. In the United Kingdom, some Acts have been in force since their enactment in the 13th century.

Parts of a statute [1.230] The various parts of a statute are illustrated here with reference to the Corporations Act 2001 (Cth).

Act number: [1.240] “Act No 50 of 2001” Each statute enacted in a year is assigned an Act Number. This Act was the 50th statute enacted by the Commonwealth Parliament in the year 2001.

Long title: [1.250] “An Act to make provision in relation to corporations and financial products and services, and for other purposes.” The long title is a broad statement of the subject matter of the Act. It is a part of the statute: Fearnley v Finlay [2014] 2 Qd R 392 at [47]-[48].

Short title: [1.260] s 1. “This Act may be cited as the Corporations Act 2001.” The short title provides a more concise statement of the subject of the Act than is provided by the long title. Acts are customarily cited by their short title.

Commencement date: [1.270] s 2. “This Act commences on a day to be fixed by Proclamation.” This provision states the date on which the Act enters into force. In this example, that date is to be fixed by Proclamation of the Governor-General, that is, on the advice of the executive government.

Object or purpose: [1.280] The Corporations Act 2001 (Cth) does not contain an objects clause. However, many modern statutes contain a statement of the objects which the Act seeks to achieve. For example, s 2 of the 5

See Constitution Act 1902 (NSW), s 5B; Constitution Act 1975 (Vic), ss 65A – 65G; Constitution Act 1934 (SA), s 41.

chapter 1 The Australian Legal System

Competition and Consumer Act 2010 (Cth) states: “The object of this Act is to enhance the welfare of Australians through the promotion of competition and fair trading and provision for consumer protection”.

Definitions: [1.290] 9 Dictionary Unless the contrary intention appears: “AASB” means the Australian Accounting Standards Board. … “accounting standard” means: (a) an instrument in force under section 334; or (b)

a provision of such an instrument as it so has effect.

The meaning of many words in a statute are not self-evident. Most statutes contain a provision defining certain words the meaning of which may be ambiguous or which will have a specialist or technical meaning when used in the Act. This provision may be entitled “definitions”, “interpretation” or “dictionary”. Sometimes a statute may have a number of definition sections, with particular definition provisions applying only to specific parts of the Act. In some statutes, definitions are included in a separate schedule to the Act.

Sections: [1.300] 57 Classes of shares or interests in managed investment schemes (1)

The shares in a body corporate, if not divided into 2 or more classes, constitute a class.

(2)

If the interests in a managed investment scheme to which an undertaking relates are not divided into 2 or more classes, they constitute a class.

Each statute is divided into consecutively numbered sections. A section number is abbreviated by the letter “s”, multiple section numbers are abbreviated by the letters “ss”. When new sections are inserted into an Act by an amending Act, the new sections are often placed between existing sections. The new sections are assigned section numbers that include one or more letters. Where many new sections have been inserted into an Act, the numbering of the Act can become complicated. For example, this Act contains section numbers such as ss 331AAA and 331AC. Individual sections of an Act are often further subdivided into subsections. In the example above, the section number is s 57. This section is subdivided into two subsections, abbreviated as s 57(1) and s 57(2). Within the section these subsections are identified by the numbers “(1)” and “(2)”.

Marginal notes: [1.310] 52 Doing acts A reference to doing an act or thing includes a reference to causing or authorising the act or thing to be done. The marginal notes are often, but not necessarily, placed in the margin of a statute. In the example given here the marginal note appears in bold type immediately before the text of the section: “Doing acts”. Marginal notes describe in general terms the particular subject dealt with by each section.

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Examples: [1.315] 768A What is a clearing and settlement facility? (1)

… a clearing and settlement facility is a facility that provides a regular mechanism for the parties to transactions relating to financial products to meet obligations to each other that: (a) arise from entering into the transactions; ... Example 1: A facility that provides a regular mechanism for stockbrokers to pay for the shares they buy and to be paid for the shares they sell … would be a clearing and settlement facility ...

Statutory provisions sometimes include examples of their operation. In many jurisdictions these examples form part of the Act. 6

Chapters, Parts or Divisions: [1.320] Chapter 2J–Transactions affecting share capital Part 2J.1–Share capital reductions and share buy-backs Division 1–Reductions in share capital not otherwise authorised by law Division 2–Share buy-backs Division 3–Other share capital reductions Part 2J.2–Self-acquisition and control of shares Part 2J.3–Financial assistance Part 2J.4–Interaction with general directors’ duties An Act with a large number of provisions is generally divided into Chapters, Parts and Divisions, each composed of a number of individual provisions. As can be seen in the example above, each Chapter, Part and Division has an individual heading which describes its subject matter. The division of the Act into Chapters, Parts or Divisions assists comprehension of the scheme of the Act.

Schedules: [1.330] “Schedule 4–Transfer of financial institutions and friendly societies” Matters of detail are often incorporated into one or more Schedules which appear at the end of the Act.

Interpretation of statutes [1.340] A statute has to be interpreted before it can be applied. That is to say, its meaning has to be ascertained by those who enforce it and by those who have to comply with it. Interpretation of an Act of Parliament is often no easy task. There are frequently conflicting views as to the precise meaning of a particular phrase or section of an Act which may ultimately have to be resolved by the courts. There are a number of aids to assist in interpreting a statute, the principal ones being the Commonwealth and State Acts Interpretation Acts, and certain rules and maxims of statutory interpretation developed by the courts. 6

See Acts Interpretation Act 1901 (Cth) s 15AD; Interpretation of Legislation Act 1984 (Vic), s 36(3A); Acts Interpretation Act 1954 (Qld) s 14D; Acts Interpretation Act 1915 (SA) s 19A; Interpretation Act 1978 (NT) s 62D; Director of Public Prosecutions v Walters [2015] VSCA 303 at [7].

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The Acts Interpretation Acts [1.350] The Commonwealth, State and Territory Parliaments have passed Acts Interpretation Acts 7 which set down some basic rules or presumptions of interpretation, define some common terms, and deal with a number of other matters relating to form, content and operation of statutes. For example, most of the Acts have provisions stating that the male gender includes the female gender, singular includes plural and vice versa, and defining commonly occurring terms such as “document”, “person”, “Minister”, “service by post” and so on.

A “purposive” construction [1.360] The Commonwealth Acts Interpretation Act 1901 (Cth) contains a provision which, in effect, directs a court to have regard to the objects and purposes of an Act in interpreting its provisions. Thus, s 15AA provides: “In interpreting a provision of an Act, the interpretation that would best achieve the purpose or object of the Act (whether or not that purpose or object is expressly stated in the Act) is to be preferred to each other interpretation.” There are purposive construction provisions in all of the State Acts Interpretation Acts. 8 It has been said that the corresponding provision in the New South Wales Interpretation Act 1987 (NSW), s 33 requires a “purposive” approach to statutory interpretation, that is, giving meaning to the words to effect their intended purpose, rather than a strict or literalist approach: National Employers Mutual General Insurance Association Ltd v Manufacturers Mutual Insurance Ltd (1989) 17 NSWLR 223 at 225 per Kirby P. In applying a “purposive” construction: “[T]he grammatical meaning of a provision is not to be taken to represent Parliament’s intention as to its meaning when the context or the purpose of the provision raises a real doubt about the applicability of the grammatical meaning. If purpose or context does raise a real doubt as to whether Parliament intended the grammatical meaning to apply, a court is entitled to depart from that meaning. Moreover, if the grammatical meaning gives rise to injustice or anomaly, it may strengthen the conclusion that the Parliament did not intend the grammatical or literal meaning to apply”: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA. For example, the Queensland Court of Appeal invoked a common law maxim of interpretation in adopting an interpretation that limited the operation of the broad words of a statute. It was unlikely that Parliament intended that the provision should allow a person to take advantage of their own wrong. The provision was thus not to be interpreted to allow a purchaser who refuses to settle to escape the consequences of their breach of contract: Meridien AB Pty Ltd v Jackson [2014] 1 Qd R 142 at [31], [40]. Furthermore, to give effect to the purpose of the legislation, a court may read words into a legislative provision if by inadvertence Parliament has failed to deal with an eventuality required to be dealt with if the purpose of the Act is to be achieved, provided the following three conditions are fulfilled: “First, the court must know the mischief with which the Act was dealing. Secondly, the court must be satisfied that by inadvertence Parliament has overlooked an eventuality which must be dealt 7

8

Acts Interpretation Act 1901 (Cth); Interpretation Act 1987 (NSW); Interpretation of Legislation Act 1984 (Vic); Acts Interpretation Act 1954 (Qld); Acts Interpretation Act 1915 (SA); Interpretation Act 1984 (WA); Acts Interpretation Act 1931 (Tas); Legislation Act 2001 (ACT); Interpretation Act 1978 (NT). Interpretation Act 1987 (NSW), s 33; Interpretation of Legislation Act 1984 (Vic), s 35; Acts Interpretation Act 1954 (Qld), s 14A; Acts Interpretation Act 1915 (SA), s 22; Interpretation Act 1984 (WA), s 18; Acts Interpretation Act 1931 (Tas), s 8A; Legislation Act 2001 (ACT), s 139; Interpretation Act 1978 (NT), s 62A.

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with if the purpose of the Act is to be achieved. Thirdly, the court must be able to state with certainty what words Parliament would have used to overcome the omission if its attention had been drawn to the defect”: Bermingham v Corrective Services Commission of New South Wales (1988) 15 NSWLR 292 at 302 per McHugh JA; see also Special Projects (Qld) Pty Ltd v Simmons [2012] QCA 205 at [24]. However, where Parliament has failed to make provision for something because it has not considered the matter, the deficiency in the statute goes beyond reading in “some necessary words”. To remedy that deficiency will be impermissible as it crosses the boundary between interpreting and legislating: Sevmere Pty Ltd v Cairns Regional Council [2010] 2 Qd R 276 at [65], [71]. Other than in “extremely limited circumstances”, the judiciary may not “fill a gap” in legislation: Director of Public Prosecutions v Walters [2015] VSCA 303 at [4], [7], [57]. The High Court has indicated the broad limits of this approach: “The question whether the court is justified in reading a statutory provision as if it contained additional words or omitted words involves a judgment of matters of degree. That judgment is readily answered in favour of addition or omission in the case of simple, grammatical, drafting errors which if uncorrected would defeat the object of the provision. It is answered against a construction that fills ‘gaps disclosed in legislation’ or makes an insertion which is ‘too big, or too much at variance with the language in fact used by the legislature’”: Taylor v The Owners–Strata Plan No 11564 (2014) 253 CLR 531 at [38]. Where the words of a statute are clear, effect must be given to them notwithstanding that Parliament appeared to have legislated “in an exceedingly odd manner”, since: “When statutory words are clear, even if the purpose informing them is not immediately apparent, the courts are not at liberty to mangle them to the point where they no longer mean what they say”: Turner v Morlend Finance Corp (Vic) Pty Ltd [1990] ASC 56-006 at 59,128 per Meagher JA. The method of purposive construction does not permit a court to redraft legislation to give effect to a presumed legislative intent: Comcare v Thompson (2000) 100 FCR 375 at [40].

Extrinsic materials [1.370] The Commonwealth Acts Interpretation Act 1901 (Cth) (s 15AB) allows the court to take into consideration certain extrinsic material in interpreting, for example, an ambiguous or obscure provision in an Act. 9 Section 15AB(1) provides, in part, that: [I]n the interpretation of a provision of an Act, if any material not forming part of the Act is capable of assisting in the ascertainment of the meaning of the provision, consideration may be given to that material: (a) to confirm that the meaning of the provision is the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; or (b)

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to determine the meaning of the provision when – (i)

the provision is ambiguous or obscure; or

(ii)

the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act leads to a result that is manifestly absurd or is unreasonable.

See J Dharmananda, “Outside the Text: Inside the Use of Extrinsic Materials in Statutory Interpretation” (2014) 42 Federal Law Review 333.

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This provision allows “but does not require” a court to refer to extrinsic materials in interpreting a statute: Screen Australia v EME Productions No 1 Pty Ltd (2012) 200 FCR 282 at [48]. The material which may be referred to includes: relevant Law Reform Commission reports; relevant parliamentary committee reports; the explanatory memorandum for the Bill; the second reading speech of the Minister on the Bill; and relevant material in parliamentary debates: Acts Interpretation Act 1901 (Cth), s 15AB(2). Section 15AB(3) contains a proviso to the effect that in determining whether consideration should be given to such extrinsic material, or in considering the weight to be given to it, regard is to be had, inter alia, to: (a)

the desirability of persons being able to rely on the ordinary meaning conveyed by the text of the provision taking into account its context in the Act and the purpose or object underlying the Act; and

(b)

the need to avoid prolonging legal or other proceedings without compensating advantage.

The section is essentially an aid to interpretation of a statutory provision and the court will not give effect to the intention evinced in, for example, a Minister’s second reading speech on a Bill where it is satisfied that there is good reason not to do so. In Re Bolton; Ex parte Beane (1987) 162 CLR 514 at 518 Mason CJ, Wilson and Dawson JJ stated that “[t]he words of a Minister must not be substituted for the text of the law”. See similarly North Australian Aboriginal Justice Agency Ltd v Northern Territory (2015) 90 ALJR 38 at [229]; Director of Public Prosecutions v Walters [2015] VSCA 303 at [7]. The court has regard to the second reading speech in order to ascertain the purpose of the legislation. The court does not attribute significance to statements in the speech that refer to the intended meaning of a particular provision: Harrison v Melhem (2008) 72 NSWLR 380 at [12], [172], [191]-[192]. Furthermore, it has been stated in the High Court that: “It is only when the meaning of the text is doubtful … that consideration of extrinsic material might be of assistance. It follows that it would be erroneous to look to the extrinsic material before exhausting the application of the ordinary rules of statutory construction. If, when that is done, the meaning of the statutory text is not doubtful, there is no occasion to look to the extrinsic material”: Catlow v Accident Compensation Commission (1989) 167 CLR 543 at 550; see also Telstra Corporation Ltd v Hurstville City Council (2000) 105 FCR 322 at [142]. It is the words of the statute rather than the extrinsic materials that have primary importance for statutory interpretation: Nominal Defendant v GLG Australia Pty Ltd (2006) 228 CLR 529 at [22], [82]. Thus the words of the explanatory memorandum cannot replace the words of the statute, and where there is a clash between them, the words of the statute naturally take priority: Director of Public Prosecutions v Le (2007) 15 VR 352 at [59]-[60]. Similar provisions permitting recourse to extrinsic materials are included in most State and Territory interpretation statutes. 10 The Queensland Court of Appeal has held that the language of the statute may not be ignored in order to accord with statements in the Minister’s Second Reading speech: Witheyman v Simpson [2011] 1 Qd R 170 at [52], [82], [89]. There is no such provision in South Australia. In that State the common law applies, so the courts may have regard to extrinsic materials in determining the mischief to which a statute was directed: K-Generation Pty Ltd v Liquor Licensing Court (2009) 237 CLR 501 at [50]-[51]; Ireland v Wightman (2014) 119 SASR 266 at [44]. 10

Interpretation Act 1987 (NSW), s 34; Interpretation of Legislation Act 1984 (Vic), s 35; Acts Interpretation Act 1954 (Qld), s 14B; Interpretation Act 1984 (WA), s 19; Acts Interpretation Act 1931 (Tas), s 8B; Legislation Act 2001 (ACT), s 142; Interpretation Act 1978 (NT), s 62B.

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Common law rules of statutory interpretation [1.380] Over the years, the courts developed a number of rules to be applied in the interpretation of statutes. While described as “rules”, they are essentially guidelines for statutory interpretation. The more important of these rules are:

The literal rule [1.390] The courts are to interpret the words used in an Act of Parliament literally as far as they can, that is, they must give the words their natural, ordinary and grammatical meaning. This is based on the assumption that Parliament’s intention is expressed in the actual words used. Accordingly, if the words are clear, it is not necessary to look further for their meaning. However, the inconvenience of the result of a literal interpretation may assist the court in concluding that an alternative construction which is reasonably open is to be preferred to the literal meaning because the alternative construction more closely conforms to the legislative intent discernible from other provisions in the statute: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 320 per Mason and Wilson JJ. In that case, Gibbs CJ explained the general position as follows: “[I]f the language of a statutory provision is clear and unambiguous, and is consistent and harmonious with the other provisions of the enactment, and can be intelligibly applied to the subject matter with which it deals, it must be given its ordinary and grammatical meaning, even if it leads to a result that may seem inconvenient or unjust. To say this is not to insist on too literal an interpretation, or to deny that the court should seek the real intention of the legislature. The danger that lies in departing from the ordinary meaning of unambiguous provisions is that … it may lead judges to put their own ideas of justice or social policy in place of the words of the statute. On the other hand, if two constructions are open, the courts will obviously prefer that which will avoid what it considers to be inconvenience or injustice. Since language, read in its context, very often proves to be ambiguous, this last mentioned rule is one that not infrequently falls to be applied”: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 305. Arguably, the Commonwealth Acts Interpretation Act 1901 (Cth) (s 15AA) may require a more “purposive” approach to statutory interpretation than that indicated in the Cooper Brookes case, although the views expressed in that case have been referred to with approval in decisions on the amended provisions: see, for example, Mills v Meeking (1990) 169 CLR 214 at 223, 242. McHugh J stated that today “[t]he literal meaning of the legislative text is the beginning, not the end, of the search for the intention of the legislature”: Kelly v The Queen (2004) 218 CLR 216 at [98].

The golden rule [1.400] Where a literal reading would give rise to an absurdity, the judge may have resort to what is known as the “golden rule”. It has been said in the High Court that the propriety of departing from a literal interpretation is not confined to situations where the operation of the statute on a literal interpretation would be “absurd”, “capricious” or “irrational” but “extends to any situation in which for good reason the operation of the statute on a literal reading does not conform to the legislative intent as ascertained from the provisions of the statute, including the policy which may be discerned from those provisions”: Cooper Brookes (Wollongong) Pty Ltd v Commissioner of Taxation (1981) 147 CLR 297 at 321 per Mason and Wilson JJ.

The mischief rule [1.410] This brings us to the “mischief rule”. By this rule, where a literal interpretation is not possible because, for example, the words are ambiguous, logically defective, inconsistent with each other or

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incomplete, then the court may have regard to the “mischief” which Parliament passed the Act to remedy. In such circumstances, the court is to interpret the statute according to the original purpose or policy underlying its enactment. The High Court has made reference to law reform commission reports and explanatory memoranda when ascertaining the mischief to which legislation was directed: CIC Insurance v Bankstown Football Club Ltd (1997) 187 CLR 384 at 408; Newcastle City Council v GIO General Ltd (1997) 191 CLR 85 at 99, 112; Federal Commissioner of Taxation v Unit Trend Services Pty Ltd (2013) 250 CLR 523 at [53]-[54]. The mischief rule required an ambiguity or inconsistency before a court could have regard to the purpose or object of a statute. The “purposive” provision of the Commonwealth Acts Interpretation Act 1901 (Cth) (s 15AA) and the corresponding provisions in the State legislation is not so confined: Mills v Meeking (1990) 169 CLR 214 at 235: see [1.360]. Furthermore, the range of extrinsic materials to which one may have regard is more extensive under the amended provisions: see [1.370]. Accordingly, much of the scope for the operation of the common law mischief rule would now appear to have been superseded by the statutory provisions.

Maxims of interpretation [1.420] The courts apply a number of principles or “maxims” of statutory interpretation. However, these principles are aids to construction, rather than inflexible rules. Under the “ejusdem generis” maxim, where particular words are followed by a general word, the general word may be interpreted as restricted to the same class as the particular words. For example, in the absence of some contrary intention, in the phrase “dogs, cats, guinea pigs and other animals”, the general words “other animals” would be construed as restricted to domestic animals, and would not be interpreted as including elephants or whales. Ejusdem generis is merely a “guide to interpretation” rather than a rule, and it “must be used cautiously”: Chief Executive Officer of Customs v Biocontrol Ltd (2006) 150 FCR 64 at [46]; see also Pepper v Attorney-General [2008] 2 Qd R 353 at [1], [23], [34]. This rule does not apply where the particular words do not constitute a class. In that case, the general word will not be subject to that restrictive interpretation: Cody v JH Nelson Pty Ltd (1947) 74 CLR 629 at 639–640, 648; R v Regos (1947) 74 CLR 613 at 623–624. According to the “expressio unius est exclusio alterius” maxim, express mention of one matter suggests that other matters are excluded. The maxim will not apply unless the provision concerned is intended as an exhaustive statement of some matter. The courts emphasise that this maxim is to be applied with care, for “whilst [it is] a valuable servant, it is apt to be a dangerous master”: Balog v Independent Commission Against Corruption (1990) 169 CLR 625 at 632. Under the maxim “generalia specialbus non derogant”, where there is a conflict between a specific provision and a general provision in a statute, the specific provision will usually be applied in preference to the general provision: Smith v The Queen (1994) 181 CLR 338 at 348. The courts also make certain presumptions in construing legislation. For example, “common law rights should be taken to have been cut down by statute only where there is a clear legislative expression of an unmistakable and unambiguous intention to do so”: Daly v Thiering (2013) 249 CLR 381 at [32].

Delegated legislation [1.430] Delegated legislation is legislation made under the authority of an Act of Parliament. It is also known as subordinate legislation. It is not uncommon for an Act of Parliament to set out the law on a particular matter in general terms and go on to delegate or empower some person or body to make the

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detailed rules or regulations necessary to give effect to the legislation. Examples of the persons and bodies to whom such power is commonly given include the Governor-General or Governor in Council, government Ministers and local authorities. The reasons for conferring power on others to make delegated legislation are that: (a)

Parliament does not have the time to deal in detail with the many matters that claim its attention; and

(b)

much of the legislation that is passed is of a highly technical, specialised or essentially local nature so that the details are better left to experts or local bodies.

The power given by the particular Act may be quite specific as to the regulations which may be made under it, or it may confer a broad power to make delegated legislation. An example of the latter is the power given to local governments by the Queensland Local Government Act 2009 (Qld), s 28(1): “A local government may make … any local law that is necessary or convenient for the good rule and local government of its local government area.” Parliament maintains some control over delegated legislation through the requirement that regulations be tabled or laid before the Parliament 11 and by retaining the option of disallowing such regulations within specified periods after their tabling. 12 In both the Commonwealth and State Parliaments, committees have been set up to examine delegated legislation tabled before the Parliament with a view to maintaining some general supervisory control over its content. It is important to bear in mind that delegated legislation is only valid if it comes within the power conferred by the Act of Parliament under which it is made. Accordingly, if in making the regulation the person or body has exceeded the power given by the particular Act, the regulation may be held to be ultra vires (beyond power) by the court and hence invalid.

Judge-made law [1.440] Another important source of law is judge-made law which comprises the principles of law propounded by judges in deciding particular cases. The term “common law” is in fact used in a number of different ways. It may refer to: (a)

the law as declared by judges as distinct from statutory law (the laws made by Parliament);

(b)

common law as distinct from equity; and

(c)

common law as distinct from civil law (to distinguish between a common law system of law as practised in the UK and those countries which inherited that system (for example, Australia), from a civil law system as practised in most European and Asian countries).

The term “common law” in the present work will generally be used to refer to the principles of law arising from the decisions of judges in deciding particular cases, as distinct from statutory law. Thus, the term “common law” will generally refer to the principles of both the common law and equity. However, in some cases it will be necessary to distinguish between common law and equity. An Act of Parliament may abrogate or modify the rules of the common law and equity. The judicial law-making function is thus subordinate to the legislative power of Parliament. To appreciate the essential nature of judge-made law, and particularly to understand the reasons for the distinction between common law and equitable principles, it is useful to have some familiarity with the historical development of judge-made law. In this context we distinguish between common law and equity. 11

Legislation Act 2003 (Cth), s 38.

12

Legislation Act 2003 (Cth), s 42.

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Development of the common law [1.450] In medieval England, the development of the Royal or Common Law Courts saw the gradual decline of local courts governed by archaic procedures. It was in these central courts that a law common to all of England gradually evolved. All actions in the Royal Courts had to be commenced by obtaining the appropriate writ from Chancery, the department responsible for issuing writs. By the 14th century, the Royal Courts had become firmly established. However, the legal system during this period suffered from a number of serious deficiencies. Only certain types of writ were available and if the wrong complained of could not be framed so as to fit within one of the existing writs, then the complainant had no cause of action and hence no remedy. Furthermore, the procedure involved in proving a case became increasingly complex and very strict. A case could be lost for non-compliance with the merest technicality. These deficiencies in the common law led to the rise of equity as a source of law.

The growth of equity [1.460] Equity developed as an amelioration of the harsh consequences of common law rules. Where persons were unable to obtain a remedy for their grievances in the Common Law Courts because of the deficiencies in the common law, they would petition the King for relief. The increase in the number of these petitions asking the King as a matter of conscience or justice to redress the petitioners’ grievances led to them being dealt with by the Chancellor, one of the King’s principal advisers. Eventually, aggrieved petitioners would send their petitions directly to the Chancellor. The Chancellor was also the head of the Chancery, the body responsible for issuing writs to those seeking a remedy in one of the Common Law Courts. The hearing of petitions by the Chancellor led to the emergence during the 15th century of the separate jurisdiction of the Chancery as a court of equity, later known as the Court of Chancery. The system of law administered by the court, which came to be known as equity, was not seen as a rival system to the common law but as supplementing the common law by providing remedies that the common law could not supply and by acknowledging rights not recognised by the Common Law Courts. For example, the recognition and enforcement of trusts was exclusively a development of equity since the common law made no provision for the legal owner of property holding it on behalf of another. Further, the remedy of the Common Law Courts was to award monetary compensation called “damages” to a person who had suffered injury, whereas the Court of Chancery could grant specific performance (that is, compel a person to do what he or she had promised) or an injunction (that is, order a person to abstain from doing something). Equitable remedies were (and remain today) discretionary. There gradually evolved two systems of law – common law and equity – which were administered in England in two separate systems of courts: the Common Law Courts and the Court of Chancery. A struggle over jurisdiction developed between the equity and common law courts. The dispute was finally settled by the passing of the Judicature Act 1873 in England in 1873. Under that Act, the separate courts were replaced by one Supreme Court of Judicature in which both the rules of equity and the rules of the common law were to be administered not only in the one court, but also in the one proceeding, with the rider that where there was any conflict between the two bodies of rules, the rules of equity would prevail. All the Australian States have followed the United Kingdom Judicature Act 1873 model, so that both common law and equitable principles are applied in the one proceeding. New South Wales was the last to adopt the “Judicature” system, which came into operation in that State following the Supreme Court Act 1970 (NSW).

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Reception of English law in Australia [1.470] The law in force in Australia today is largely based on the law of England. To appreciate the nature of that inheritance, it is necessary to have some understanding of the reception of English law in Australia. An Imperial Act, the Australian Courts Act 1828 (IMP), provided that all laws and statutes in force within the realm of England on 25 July 1828 should be applied in the administration of justice in the courts of New South Wales and Tasmania “so far as they could be applied within those colonies”. Accordingly, 25 July 1828 is the point of time at which the laws (both common law and statutory law) then existing in England apply in Australia. After 1828, changes in the laws of England did not generally apply to Australia. However, until 1942 the Commonwealth Parliament could not legislate contrary to the provisions of Imperial Acts applying to the Commonwealth. The Imperial Parliament enacted the Statute of Westminster 1931 (IMP), which was adopted by the Commonwealth Parliament in the Statute of Westminster Adoption Act 1942 (Cth). Under the Imperial Act the Imperial Parliament relinquished the power to legislate for the Commonwealth of Australia, except in the case where the Commonwealth Parliament expressly requested and consented to such enactment: Statute of Westminster 1931 (IMP), s 4. The Commonwealth was also given power to legislate contrary to Imperial Acts: Statute of Westminster Adoption Act 1942 (Cth), s 2. Since the Australia Act 1986 (Cth), the States can now legislate contrary to Imperial Acts. In other words, the Australia Act 1986 (Cth) did for the State Parliaments what the Statute of Westminster had earlier done for the Commonwealth Parliament. The law in force in each State of Australia today comprises an Imperial element, a federal element and a State element. The Imperial element includes, in addition to the law inherited from England at the time of settlement of the former colonies, statutes of the Imperial Parliament which applied to the Australian colonies, either expressly or by necessary implication, since the first introduction of English law.

Law reports [1.480] The common law comprises the decisions of judges in deciding particular cases. Those decisions are published in law reports. For the High Court the authorised law reports are the Commonwealth Law Reports (published since 1903) and for the Federal Court, the Federal Court Reports (since 1984). In the States and Territories the authorised law reports are the New South Wales Law Reports, Victorian Reports, Queensland Reports, South Australian State Reports, Western Australian Reports, Tasmanian Reports, Australian Capital Territory Law Reports and the Northern Territory Law Reports. The Australian Law Reports contain decisions of the High Court, Federal Court, Territory courts and other courts exercising federal jurisdiction and decisions of the Territory courts. The Federal Law Reports contain decisions of Commonwealth and State courts on matters of federal law. In addition, there are many specialist series of reports containing decisions on particular aspects of the law such as contract, intellectual property, trade practices, company law, torts, insurance, consumer credit, industrial law, bankruptcy, trusts and so on.

Form of a law report [1.490] Modern law reports present cases in a similar way. On turning to the report of a case, at the top of the page will usually be found the names of the parties followed by the name of the court (although in some reports this order is reversed). This will be followed by the name of the judge/s and the dates on which the

chapter 1 The Australian Legal System

case was heard. Immediately below are a number of words which very briefly indicate the subject matter of the case and relevant legislation: these words are called “catchwords”. Then will follow a fuller summary of the facts, the decision in the case and reference to cases that were applied, overruled, distinguished, discussed or referred to in the judgment: this part is called the “headnote”. The catchwords and the headnote do not form part of the judgment. Their object is to provide readers with a short summary of the case to decide whether it is relevant for their purposes. After the headnote there will be words indicating how the case came before the court, for example by statement of claim, summons, appeal, etc. This will be followed by the names of the legal representatives of the respective parties (usually barristers). In some law reports there will then be a brief summary of the arguments put to the court by counsel. Where the court does not give judgment immediately after hearing argument but gives it later, it is called a reserved judgment: this is indicated in the law report by the words “cur adv vult” (the short form of the Latin expression curia advisari vult – “the court wishes to be advised”). The law report will then set out, usually in full, the judgment/s given in the case. Judgments tend to follow a similar basic pattern, namely a statement of the material facts; identification of the issues involved; discussion of the relevant law and its application to the particular facts; the decision reached and a statement of the orders flowing from the decision. At the end of the report appear the names of the firms of solicitors representing the respective parties and the initials or name of the reporter who wrote the catchwords and headnote. The following example of a case reported in the Commonwealth Law Reports illustrates the various features of a law report:

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Pt 1 Introduction

Figure 1.1: Example of a Law Report

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Citation of cases [1.500] A case in support of a legal principle is cited by quoting the names of the parties and giving a reference to the law report where the case can be found. For example: Norwich Winterthur Insurance (Australia) Ltd v Con-Stan Industries of Australia Pty Ltd [1981] 2 NSWLR 879 This means that the case of Norwich Winterthur Insurance (Australia) Ltd (the plaintiff) against Con-Stan Industries of Australia Pty Ltd (the defendant), decided in the Supreme Court of New South Wales, is reported in the New South Wales Law Reports of 1981, volume two of that year, at page 879. In that case, the judge at first instance decided in favour of the defendant, Con-Stan Industries of Australia Pty Ltd. Accordingly, the plaintiff in the original action, Norwich Winterthur Insurance (Australia) Ltd, appealed to the New South Wales Court of Appeal. The Court of Appeal reversed the decision of the trial judge and held in favour of Norwich Winterthur Insurance (Australia) Ltd (now called “the appellant”) and against Con-Stan Industries of Australia Pty Ltd (now called “the respondent”). The report of the decision of the New South Wales Court of Appeal is cited as follows: Norwich Winterthur Insurance (Australia) Ltd v Con-Stan Industries of Australia Pty Ltd [1983] 1 NSWLR 461 As in the example above, this means that the report of the decision of the New South Wales Court of Appeal in the case can be found in the New South Wales Law Reports for the year 1983, in volume one of that year, at page 461. Subsequently, Con-Stan Industries of Australia Pty Ltd, the unsuccessful respondent in the New South Wales Court of Appeal, appealed against that court’s decision to the High Court. The decision of the High Court is cited as follows: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 The case citation given means that the decision of the High Court in the appeal of Con-Stan Industries of Australia Pty Ltd (now called the appellant) against Norwich Winterthur Insurance (Australia) Ltd (now called the respondent) is reported in the Commonwealth Law Reports, volume 160, at page 226, the judgment being delivered in the year 1986. The following points may be noted from the above explanation: 1.

In connection with the case at first instance (that is, at the original trial of the action), Norwich Winterthur Insurance (Australia) Ltd was the party who brought the action and is therefore called the plaintiff. The plaintiff’s name appears first in the citation of the case. The party against whom the action is brought, here Con-Stan Industries of Australia Pty Ltd, is called the defendant. Although the reference to the case is written Norwich etc v Con-Stan Industries etc it is referred to verbally as Norwich and Con-Stan Industries. The reason for this is that the full title of the action is “between N, plaintiff and C, defendant”.

2.

In the appeal to the New South Wales Court of Appeal, Norwich was the party who appealed and is therefore called the appellant. Con-Stan Industries, who responded to the appeal, is called the respondent.

3.

In the appeal to the High Court, Con-Stan Industries was the party who appealed and who now, therefore, is called the appellant. Norwich this time is the respondent, and in the citation the

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appellant’s name appears first. Accordingly, in this instance, the names of the parties are in reverse order in the citation of the appeal to the High Court to that in which they appeared in the citation to the report of the original action, and also in the report of the appeal to the New South Wales Court of Appeal. [1.510] Sometimes the parties are referred to by other names, for example applicant, petitioner, etc, depending on the particular court in which the case is to be heard and the nature of the proceedings. In criminal proceedings, the citation of a case dealing with the prosecution of a person for an indictable offence usually takes the following form: R v Dillon [1982] VR 434 The citation indicates that the case is reported in the Victorian Reports for the year 1982, at page 434. Here, R is an abbreviation for Regina or Reg (the Queen), or Rex (the King). Sometimes the words “the Queen” (or “the King”) are used instead of the abbreviation R. In the above citation the Crown is taking action against Dillon and the citation is expressed verbally as “the Queen against Dillon”. It will be observed that in the citations to the New South Wales Reports and the Victorian Reports above, the year is contained in square brackets. This indicates that the year was an integral part of the reference to the particular series of reports at that time. On the other hand, the Commonwealth Law Reports, the other series of law reports cited in the examples above, is cited by volume number (in the example given, volume 160) and the year in which the case was decided is not a necessary part of the citation. However, it is common practice to include in the citation in round brackets the year in which the case was decided. More recent volumes of the New South Wales Law Reports and Victorian Reports are now also cited by volume number. [1.520] With the ready availability of judgments in electronic form on the Internet, often long before their publication in the printed law reports, “medium-neutral” citations have now been adopted for the citation of judgments. Each case is given a citation which identifies the year the case was decided and the court which decided the case, together with a unique number for that case. For example, the following medium-neutral citation is that of the 16th High Court decision handed down in 2011: Insight Vacations Pty Ltd v Young [2011] HCA 16. Each judgment is divided into numbered paragraphs. These individual paragraphs are cited as follows: Insight Vacations Pty Ltd v Young [2011] HCA 16 at [20]. It is thus possible to cite to a particular point in an electronic version of a judgment with the same precision as a page number in a printed law report. Many decisions available in electronic format will be subsequently reported in the law reports. After the publication of a case in the law reports, it is customary to cite the case by its citation in the law reports rather than by its medium-neutral citation. Hence, the decision referred to above will now be cited as Insight Vacations Pty Ltd v Young (2011) 243 CLR 149. The main abbreviations for federal courts used in medium-neutral citations are HCA (High Court of Australia); FCAFC (Full Court of the Federal Court of Australia, from 2002); and FCA (single judge decision of the Federal Court). The abbreviations for State courts are generally a combination of the abbreviation for the State and the letters SC (Supreme Court) or CA (Court of Appeal). For example, the New South Wales Supreme Court is abbreviated NSWSC, while the New South Wales Court of Appeal is abbreviated NSWCA.

chapter 1 The Australian Legal System

Custom [1.530] Prior to the Norman Conquest (1066), and for a considerable period after it, much of the law of England was customary law administered in local feudal and communal courts. Gradually, customary law became incorporated as part of the common law and the significance of custom as a separate source of law steadily declined. It remains the law that where a custom is proved to be in common usage, certain and reasonable, it will be recognised and enforced by the courts: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236-237. However, in that case the High Court held that the alleged trade custom or usage had not been established: at 241.

The doctrine of precedent and the hierarchy of Australian courts The doctrine of precedent [1.540] The principles of the common law are to be found in the decisions of the various courts. Justice requires that like cases should be decided alike or, to put it another way, that the legal principles applied in similar situations should be consistent. The common law gives effect to this notion by what is called the doctrine of binding precedent (or stare decisis). In simple terms, the doctrine requires that the decision of a court in a decided case binds judges lower in the same court hierarchy in deciding cases of a similar nature. For example, a decision of the High Court of Australia on a particular issue is binding on State Supreme Courts and the Federal Court should they have to decide the same issue in a later case. The rationale for the doctrine was explained in the High Court in this way: “If an intermediate appellate court were free to disregard a fundamental doctrine settled by the final appellate court, an endemic uncertainty would infect the administration of justice … Courts are bound to apply the principles laid down by courts higher in the appellate hierarchy and observance of that rule avoids the futility of delivering judgments which will be reversed on appeal”: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 129-130 per Brennan J. Cases decided in one hierarchy are not strictly binding on the courts in another but will be of persuasive authority only. For example, decisions of the Supreme Court, the highest appellate body for the United Kingdom since 2009, will not be binding on Australian courts although they will generally be followed unless there is good reason not to do so. 13 The precedential value of the decisions of the appellate courts of other States is very strong. A unanimous bench of the High Court has stated: “Intermediate appellate courts and trial judges in Australia should not depart from decisions in intermediate appellate courts in another jurisdiction on the interpretation of Commonwealth legislation or uniform national legislation unless they are convinced that the interpretation is plainly wrong. Since there is a common law of Australia rather than of each Australian jurisdiction, the same principle applies in relation to non-statutory law”: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [135]. See also R v JS (2007) 230 FLR 276 at [87], [92], [167]; McKern v Minister Administering the Mining Act 1978 (2010) 28 VR 1 at [114], [141]; Dupas v R (2012) 40 VR 182 at [222]. 13

The House of Lords was the predecessor of the Supreme Court as the highest court of the United Kingdom. For an example of a case where the High Court refused to follow a previous decision of the House of Lords, see Australian Consolidated Press v Uren (1966) 117 CLR 185; [1969] 1 AC 590 at 193, 218 (CLR); 641 (AC); see also Parker v The Queen (1963) 111 CLR 610 at 632.

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There will be a conflict of authority where the court of another jurisdiction holds that a prior decision interpreting a uniform law was wrongly decided. The New South Wales Court of Criminal Appeal followed its own earlier decision on the interpretation of uniform legislation in preference to a subsequent Victorian Court of Appeal decision that had held that the prior New South Wales decision was plainly wrong. The New South Wales court determined for itself which of the conflicting decisions was correct: R v XY (2013) 84 NSWLR 363 at [65], [87], [159], [162]. The situation is different where a court interprets State or Territory legislation that is not part of a uniform national scheme. In such a case the court need not “slavishly follow judicial decisions of the courts of another jurisdiction in respect of similar or even identical legislation”: Walker Corporation Pty Ltd v Sydney Harbour Foreshore Authority (2008) 233 CLR 259 at [31]. A further question that arises is whether an appellate court in a particular hierarchy is bound by a previous decision of the same court. The High Court “has never regarded itself as bound by its own previous decisions, which is all the more appropriate now that it is a court of last resort for all purposes”: Nguyen v Nguyen (1990) 169 CLR 245 at 269. 14 In practice, the High Court will normally follow its own earlier decisions and will only depart from them where there is a strong reason for so doing. In this context the High Court has commented that: “The power to overrule a previous decision should be exercised with great caution. Continuity and coherence in the law demand that in this court the principle of stare decisis should ordinarily be applied”: Jones v Commonwealth (1987) 71 ALR 497 at 498; see also Lange v Australian Broadcasting Corporation (1997) 189 CLR 520 at 554. In a recent case in which the High Court did not follow its own previous decision, it was said that when a court of final appeal considers judge-made law, “[w]hile stare decisis is a sound policy because it promotes predictability of judicial decision and facilitates the giving of advice, it should not always trump the need for desirable change in the law especially, we would add, if the change is necessary to maintain a better connection with more fundamental doctrines and principles”: Imbree v McNeilly (2008) 236 CLR 510 at [45] per Gummow, Hayne and Kiefel JJ, with whom Gleeson CJ and Crennan J agreed: at [13], [193]. However, in declining to overturn a prior decision, the court emphasised that the decision whether to overrule one of its previous decisions “must be made in light of the ‘grave danger of a want of continuity in the interpretation of the law’”: Attwells v Jackson Lalic Lawyers Pty Ltd (2016) 90 ALJR 572 at [28] per French CJ, Kiefel, Bell, Gageler and Keane JJ, with whom Nettle and Gordon JJ agreed: at [64], [131]. The High Court alone decides whether one of its decisions should continue to be followed, not the lower courts: Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at [17]. The Full Court of the Federal Court will depart from its own previous decision if convinced that it is “clearly erroneous”: NAGV v Minister for Immigration and Multicultural and Indigenous Affairs (2003) 130 FCR 46 at [63], [74]; see also SZEEU v Minister for Immigration and Multicultural and Indigenous Affairs (2006) 150 FCR 214 at [146]-[148]. The Court has indicated that where there are two closely reasoned previous decisions of the Court on the same point and reaching the same conclusions, it would be “almost inconceivable as a matter of practice” that the Court would decline to follow them: Selim v Lele (2008) 167 FCR 61 at [55]. In Nguyen v Nguyen (1990) 169 CLR 245 it was also said that: “The extent to which the Full Court of the Supreme Court of a State regards itself as free to depart from its own previous decisions must be a matter of practice for the court to determine for itself”: at 268. The High Court pointed out that since appeals to the High Court are now by special leave only, the appeal courts of the Supreme Courts of the States and of the Federal Court are in many instances courts of last resort for all practical purposes. 14

See generally M Harding and I Malkin, “Overruling in the High Court of Australia in Common Law Cases” (2010) 34 Melbourne University Law Review 519.

chapter 1 The Australian Legal System

Accordingly, it seemed inappropriate that these courts should regard themselves as strictly bound by their own previous decisions, since in cases where an appeal is either not available or not taken to the High Court “rigid adherence to precedent is likely on occasions to perpetuate error without … significantly increasing the corresponding advantage of certainty”: at 270. However, a State or Territory court of appeal will normally follow its own previous decisions and the circumstances in which it determines not to do so will be comparatively rare. The Victorian Court of Appeal will only depart from its own previous decision where it is convinced that the decision is “clearly, or plainly, wrong”: RJE v Secretary to the Department of Justice (2008) 21 VR 526 at [48]; see similarly Commissioner of State Revenue v Challenger Listed Investments Ltd (2011) 34 VR 617 at [20]; special leave refused Commissioner of State Revenue v Challenger Listed Investments Ltd [2012] HCATrans 352. The Tasmanian Court of Criminal Appeal has also adopted the “plainly wrong” test: KMJ v Tasmania (2011) 20 Tas R 425 at [34]. The New South Wales Court of Appeal has adopted a similar test, but with the added qualification that this is “a necessary, but not sufficient condition”: Gett v Tabet (2009) 254 ALR 504 at [296]. Other considerations relevant to the decision whether to overrule include whether the decision was part of a line of authority, inconvenience caused by the decision, reliance upon the decision and whether the decision can be confined to its precise issue: at [297]-[299]. (On appeal the High Court upheld this decision without discussing this issue: Tabet v Gett (2010) 240 CLR 537). A Court of Appeal composed of five judges will follow the “plainly wrong” rule in relation to a prior Court of Appeal decision handed down by a three-judge bench: Chubb Insurance Co of Australia Ltd v Moore (2013) 302 ALR 101 at [101], [103] (NSWCA). A single judge of a lower court is not bound by an earlier decision of another judge of the same court, for example a single judge of a Supreme Court is not bound by an earlier decision of another single judge of the same Supreme Court. However, in practice, a judge of first instance will usually follow the decision of another judge of first instance unless convinced that the earlier judgment was wrong: La Macchia v Minister for Primary Industries and Energy (1992) 110 ALR 201 at 204.

The ratio decidendi of a case [1.550] Not all of the judgment of a higher court is necessarily binding on a lower court. Only the reason/s given for deciding the earlier case, called the “ratio decidendi” (often shortened to ratio), creates a binding precedent. In the High Court decision in O’Toole v Charles David Pty Ltd (1991) 171 CLR 232 at 267, Brennan J said: “… the law is changed by judicial decision, especially by decision of the higher appellate courts. Thereafter, the law is taken to be and to have been in accordance with the principle which informs the new decision: the ratio decidendi. The ratio, which is expressed in or necessarily implied by reasons for judgment to which a majority of the participating judges assent, is the law. It is not merely a judicial opinion as to what the law is; it is a source of law.” A statement of principle made in the earlier case that was not strictly necessary for the decision is not binding: such a statement is called an “obiter dictum” (singular) or “obiter dicta” (plural). However, the High Court has modified this traditional rule by stating that lower courts are bound by its “seriously considered dicta”: Farah Constructions Pty Ltd v Say-Dee Pty Ltd (2007) 230 CLR 89 at [134], [158]. 15 A lower court must determine precisely what was the ratio of the higher court which is binding, a task which is often more complex than might at first appear. Furthermore, it might be found that there is some 15

See M Harding and I Malkin, “The High Court of Australia’s Obiter Dicta and Decision-Making in the Lower Courts” (2012) 34 Sydney Law Review 239.

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differentiating feature between the fact situations in the two cases so that the earlier case can be distinguished from the later, in other words, held not to apply because of the differing circumstances of the later case.

Hierarchy of the Australian courts Federal courts [1.560] There are presently four federal courts: the High Court, Federal Court, Family Court and the Federal Circuit Court. The jurisdiction of the Family Court is outside the scope of a general work on commercial law. However, each of the other courts will be examined in turn.

High Court of Australia [1.570] The High Court of Australia is the highest court in Australia. The court has both an original and an appellate jurisdiction. Under the Constitution (s 75) the court has original jurisdiction in cases that affect certain matters of foreign affairs, constitutional questions and cases concerning the legislative powers of the Federal Parliament. Additional original jurisdiction is conferred on the court by the Judiciary Act 1903 (Cth) (pursuant to s 76 of the Constitution). One justice can hear cases before the court in its original jurisdiction. The High Court is the final appeal court in Australia. Its appellate jurisdiction stems from s 73 of the Constitution which provides that the court can hear and determine appeals from: (a)

any justice/s exercising the original jurisdiction of the court;

(b)

any federal court or court exercising federal jurisdiction; and

(c)

the Supreme Court of any State.

Litigants generally need to obtain special leave to appeal to the High Court: Judiciary Act 1903 (Cth), ss 35 – 35A; Federal Court of Australia Act 1976 (Cth), s 33. What this means is that the High Court will hear an application to appeal and decide whether or not to hear the appeal. Special leave to appeal will normally only be granted where the case involves some important question of law, or in a criminal case, a serious miscarriage of justice. The High Court’s reasons for refusing special leave applications do not constitute binding precedents: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [112], [119].

Federal Court of Australia [1.580] The Federal Court was established under the Federal Court of Australia Act 1976 (Cth). It comprises a Chief Judge and over 40 other judges. The court has both an original and appellate jurisdiction. The court enforces federal legislation such as the Competition and Consumer Act 2010 (Cth). It has concurrent jurisdiction over bankruptcy and intellectual property matters. In its appellate jurisdiction, where the court sits as a Full Court comprised of three judges, the Federal Court hears appeals from: (a)

a single judge of the court;

(b)

a single judge of a State Supreme Court which is exercising federal jurisdiction in regard to intellectual property matters (that is, patents, trade marks, copyright and designs).

Application for special leave to appeal may be made to the High Court from a decision of the Full Court of the Federal Court.

chapter 1 The Australian Legal System

Federal Circuit Court [1.590] This court was established by the Federal Circuit Court of Australia Act 1999 (Cth). Prior to 2012 the court was called the Federal Magistrates Court. It has a concurrent jurisdiction over minor cases concerning consumer protection under the Competition and Consumer Act 2010 (Cth) and bankruptcy. This court has reduced the workload of the Federal Court.

State courts [1.600] Each of the Australian States and Territories has its own separate hierarchy of courts. The basic structure in most of the States comprises: (a)

Supreme Court;

(b)

District or County Courts; and

(c)

Local or Magistrates Courts.

Supreme Court [1.610] The highest court in each State and Territory is the Supreme Court which exercises both civil and criminal jurisdiction. The Supreme Court has unlimited civil jurisdiction in all matters not expressly excluded by statute and vested in, for example, the Federal Court or the High Court. The original jurisdiction of the Supreme Court is exercised by a single judge. A decision of a single judge may be appealed to the Court of Appeal (in New South Wales, Victoria, Queensland, Western Australia, Australian Capital Territory and Northern Territory) or Full Court of the State (in South Australia and Tasmania). In New South Wales, appeals from single judges of the Supreme Court in civil matters are heard by a separate division of the court called the Court of Appeal in which sit specially appointed Judges of Appeal. Appeals in criminal cases in that State are heard by the Court of Criminal Appeal. In Victoria, the Court of Appeal comprises a President and a number of Judges of Appeal. The Chief Justice is also a member of the court. The Victorian Court of Appeal functions both as a civil and criminal court of appeal. In Queensland, the Supreme Court comprises two Divisions: the Court of Appeal (comprising the President and a number of Judges of Appeal) and the Trial Division. Proceedings in the Trial Division are heard by a single judge from whose decision an appeal lies to the Court of Appeal, which will normally comprise three Judges of Appeal. In Western Australia, the Supreme Court consists of a General Division and the Court of Appeal. The Court of Appeal comprises the Chief Justice, President and the other Judges of Appeal. In South Australia and Tasmania, there is a right of appeal from a single judge to a Full Court of the Supreme Court comprising a number of judges of the court (usually three) sitting together. Appeals from single judges of a Supreme Court exercising federal jurisdiction in certain matters lie to the Full Federal Court (see above). Special leave to appeal to the High Court may be sought from a decision of the Full Court or the Court of Appeal. In New South Wales, the Supreme Court has a somewhat more complex administrative structure than in the other States. In addition to the Chief Justice, the highest judicial position common to all of the States, there is also a President of the Court of Appeal, a Chief Judge of the Common Law Division and a Chief Judge of the Equity Division of the court. Proceedings in the Common Law Division include claims for

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damages in contract and tort, claims for the possession of land and the detention of goods, and certain proceedings under landlord and tenant legislation. The Equity Division of the court hears applications for injunctions, specific performance of contracts for the sale of land, the appointment of receivers and liquidators of companies, and certain proceedings under, for example, real property, family law, companies, securities industry, and intellectual property legislation. Judges in the Common Law Division of the court also hear proceedings from the Commercial Law, Admiralty, Administrative Law, and Criminal Law Divisions of the court, while judges in the Equity Division of the court also handle matters from the Probate and Protective Divisions of the court.

District or County Courts [1.620] Most States have established intermediate courts called District Courts (in New South Wales, Queensland, South Australia, and Western Australia) or County Courts (in Victoria) which have a statutory jurisdiction. This jurisdiction is limited with respect to subject matter and value of money or property in dispute. The maximum monetary limitations on the civil jurisdiction of these courts are: New South Wales ($750,000; and unlimited jurisdiction in respect of motor accident claims and work injury damages claims); Victoria (unlimited jurisdiction); Queensland ($750,000); and Western Australia ($750,000; and unlimited jurisdiction in personal injury cases). 16 Where higher amounts are involved proceedings must be taken in the Supreme Court. In South Australia there is no specified maximum monetary limitation and the District Court has the same jurisdiction as the Supreme Court in civil cases with the exception of probate and admiralty. 17 The majority of civil cases heard in the District or County Courts are common law disputes such as actions to recover money under a contract, personal actions in tort (that is, personal injury cases) and some actions for the possession of land. Tasmania, the Australian Capital Territory and the Northern Territory do not have the equivalent of these intermediate courts in the other States since their population is not considered sufficient to justify their establishment.

Local or Magistrates Courts [1.630] The lowest courts in the hierarchy of State courts are those presided over by magistrates (excepting the Northern Territory). These courts are variously known as Local Courts (in New South Wales; and also in South Australia, when exercising civil jurisdiction, and the Northern Territory); Magistrates Courts (in Victoria, Queensland, Western Australia, Tasmania and the Australian Capital Territory); Courts of Petty Sessions (when exercising criminal jurisdiction in Tasmania); and Courts of Summary Jurisdiction (when exercising criminal jurisdiction in South Australia). In civil cases the jurisdiction of the courts is generally limited to claims up to a certain monetary value. The maximum monetary limitations on the civil jurisdiction of these courts are: (a)

New South Wales ($100,000);

(b)

Victoria ($100,000);

(c)

Queensland ($150,000);

(d)

South Australia ($100,000);

(e)

Western Australia ($75,000);

(f)

Tasmania ($50,000);

16 17

District Court Act 1973 (NSW), ss 44, 4; County Court Act 1958 (Vic), s 37; District Court of Queensland Act 1967 (Qld), s 68(2); District Court of Western Australia Act 1969 (WA), ss 6(1), 50. District Court Act 1991 (SA), s 8.

chapter 1 The Australian Legal System

(g)

the Australian Capital Territory ($250,000); and

(h)

the Northern Territory ($250,000). 18

The Local Courts and Magistrates Courts in their civil jurisdiction deal primarily with debt claims, contractual disputes and minor accident claims.

Privy Council [1.640] Formerly, the Privy Council heard appeals from both the High Court and the State Supreme Courts. All such appeals are now abolished. Following the abolition of appeals from the High Court to the Privy Council, the High Court is no longer bound by earlier decisions of the Privy Council, which are therefore now of persuasive authority only: Barns v Barns (2003) 214 CLR 169 at [31], [99]-[101], [123]. 19

Other courts and tribunals [1.650] In addition to the principal courts discussed at [1.600], there are a number of other courts and tribunals in Australia both at a federal and State level.

Federal tribunals and commissions [1.660] A number of quasi-judicial bodies, tribunals and commissions have been established under federal legislation, the most significant of which for our purposes are: the Australian Competition and Consumer Commission and the Australian Competition Tribunal.

Australian Competition and Consumer Commission and Australian Competition Tribunal [1.670] The Australian Competition and Consumer Commission (ACCC) has general responsibility for initiating proceedings for contravention of the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly, the Trade Practices Act 1974 (Cth)) in restrictive trade practices cases and for instituting prosecutions for offences against the consumer protection provisions of the Act. The ACCC has the power to authorise on public benefit grounds some types of conduct in restrictive trade practices matters that might otherwise be prohibited. Decisions of the ACCC on authorisation and certain other matters are subject to review by the Australian Competition Tribunal. The Tribunal consists of a President, several Deputy Presidents (who must be judges of a Federal Court) and other Members appointed on the basis of knowledge of, or experience in: industry, commerce, economics, law or public administration.

Specialist State courts and tribunals [1.680] There are a considerable number of specialist State courts and tribunals. Some of the more important of these are outlined at [1.690].

Small Claims Tribunals [1.690] All States and Territories have instituted Small Claims Tribunals or procedures to provide a cheaper, speedier and more informal method of resolving disputes, particularly between consumers and 18

Local Court Act 2007 (NSW), s 29; Magistrates’ Court Act 1989 (Vic), ss 100, 3(1); Magistrates Courts Act 1921 (Qld), ss 2, 4; Magistrates Court Act 1991 (SA), s 8; Magistrates Court (Civil Proceedings) Act 2004 (WA), ss 4, 6(1); Magistrates Court (Civil Division) Act 1992 (Tas), ss 7, 3; Magistrates Court Act 1930 (ACT), s 257; Local Court Act 2015 (NT), s 12.

19

See M Gleeson, “The Influence of the Privy Council on Australia” (2007) 29 Australian Bar Review 123.

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Pt 1 Introduction

traders, involving comparatively small sums of money. 20 The parties normally present their own case and the dispute is heard before a referee, invariably a legal practitioner in New South Wales, Victoria, and Western Australia, and in Queensland, a stipendiary magistrate. South Australia, Tasmania, the Australian Capital Territory and the Northern Territory have provided for simplified small claims proceedings within their existing court structures. Jurisdiction is limited to hearing disputes where the claim does not exceed a prescribed amount. The monetary limits are: New South Wales $10,000 in small claims and $40,000 in consumer claims; Victoria $10,000; Queensland $25,000; Australian Capital Territory $10,000; Northern Territory $25,000; Western Australia $10,000; South Australia $12,000 and Tasmania $5,000.

Other specialist courts and tribunals [1.700] Many jurisdictions have a Civil and Administrative Tribunal. 21

Federal and State court jurisdiction [1.710] The general position is that federal courts may only exercise the jurisdiction that is conferred upon them by the Constitution or by Acts of the Commonwealth Parliament and do not have power to deal with matters falling within State jurisdiction. Similarly, State courts cannot exercise federal jurisdiction unless empowered to do so by a federal Act. State courts have been invested with federal jurisdiction from time to time (for example, under the Judiciary Act 1903 (Cth), s 39), although such jurisdiction has usually been limited to particular areas of Commonwealth legislation such as bankruptcy, taxation and intellectual property. The consequence has been that sometimes litigants have commenced an action in a particular court only to find that the court did not have jurisdiction to hear the matter. To remedy this situation, consultations took place between the Commonwealth and State governments which led to the passing of the Jurisdiction of Courts (Cross-Vesting) Act 1987 (Cth). The Act provides for the vesting of State and Territory Supreme Courts with federal civil jurisdiction except in certain industrial and trade practices matters. By corresponding legislation passed by all the State Parliaments, the Federal Court was vested with the jurisdiction of the State Supreme Courts. The basic purpose of the legislation was to prevent actions failing in the respective court systems for lack of jurisdiction with the resultant inconvenience and expense to litigants. However, in Re Wakim; Ex parte McNally (1999) 198 CLR 511 the High Court held that the purported vesting of State jurisdiction in the Federal Court under the cross-vesting scheme was constitutionally invalid: at [3], [26], [39].

Classification of law and legal proceedings Public law and private law [1.720] Law can be classified as either public law or private law. Public law is concerned with the organisation of government and with the relationship between the government and the people. It includes constitutional law, administrative law and criminal law. Constitutional law defines the structure of 20

Local Court Act 2007 (NSW), s 29 (in Local Court); Fair Trading Act 1987 (NSW), Pt 6A and s 79S(7) (in Civil and Administrative Tribunal); Australian Consumer Law and Fair Trading Act 2012 (Vic), ss 182 – 185; Queensland Civil and Administrative Tribunal Act 2009 (Qld), s 11, Sch 3; Magistrates Court Act 1991 (SA), ss 3, 38; Magistrates Court (Civil Proceedings) Act 2004 (WA), ss 3, 26; Magistrates Court (Civil Division) Act 1992 (Tas), ss 3, 7(2); ACT Civil and Administrative Tribunal Act 2008 (ACT), s 18; Small Claims Act 2016 (NT), s 5.

21

Civil and Administrative Tribunal Act 2013 (NSW); Victorian Civil and Administrative Tribunal Act 1998 (Vic); Queensland Civil and Administrative Tribunal Act 2009 (Qld); South Australian Civil and Administrative Tribunal Act 2013 (SA); ACT Civil and Administrative Tribunal Act 2008 (ACT); Northern Territory Civil and Administrative Tribunal Act 2014 (NT).

chapter 1 The Australian Legal System

government and the rights of individuals under that government. Administrative law regulates the exercise of powers and duties by administrative officers and authorities. Criminal law defines offences against the State and provides punishment for their commission. Whereas public law is concerned with matters affecting the State and its relationship with individuals, private law deals with the relationships between private persons or organisations. There are many branches of private law, some of the more important of which include the following: 1.

The law of contract which is concerned with the rights and duties arising out of those agreements between individuals the law regards as legally binding.

2.

The law of tort which requires a person who has committed a civil wrong, other than a breach of contract, to compensate the person against whom or whose property the wrong was committed.

3.

The law of property which deals with the ownership, possession, use, and disposition of both real property (for example, land) and personal property (for example, goods).

4.

Corporations law which regulates the incorporation, administration, winding up and dissolution of companies, and the responsibilities of directors and other officers of the company.

5.

The law of trusts which determines the circumstances in which and the conditions on which a person (called “the trustee”) holds property on behalf of another person (that is, “the beneficiary”).

Sometimes an area of law may have both private and public law aspects, so many areas of law cannot be regarded as exclusively one or the other.

Substantive law and procedural law [1.730] A distinction is made between substantive law and procedural law. Substantive law refers to actual rights and duties under the law. Procedural law refers to the formal steps to be followed in the enforcement of those rights and duties, in particular, the rules of procedure and evidence. Procedural law is also referred to as adjectival law because it is subsidiary to substantive law.

Civil law and criminal law [1.740] The civil law is that law under which a person (the plaintiff) may sue another (the defendant) to obtain redress for a wrong committed by the defendant. The usual purpose of a civil action is to obtain monetary compensation called damages for the loss suffered by the plaintiff as a result of the defendant’s wrongful act, for example, for a breach of contract or the commission of a tort. In some cases damages are an inadequate remedy and the plaintiff might seek specific performance of a contract or an injunction to restrain some unlawful act or threatened act. The criminal law defines offences against the State (that is, against the public) and provides punishment for their commission. Crimes are defined by statute, delegated legislation or the common law and are prosecuted in the name of the Crown on behalf of the State. Where a wrongful act is both a crime and a tort, the State may prosecute the offender who committed the crime, and the victim may bring a civil action against such person for the harm or loss suffered. The distinction between civil law and criminal law is important because different procedures, different standards of proof and different remedies apply.

Criminal proceedings [1.750] Criminal offences are of two types, namely summary offences and indictable offence. Summary offences are criminal offences triable summarily, that is, offences which are heard and determined by a magistrate without a jury; they usually comprise minor offences.

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Pt 1 Introduction

Indictable offences are criminal offences triable before a judge and jury; they are generally the more serious offences. In the case of indictable offences there is a preliminary or committal hearing before a magistrate who conducts an inquiry to see if there is sufficient evidence to put the defendant on trial. The magistrate must determine whether a prima facie case has been made out and, if he or she so decides, the defendant is committed for trial before a judge and jury. In criminal law the prosecution must prove their case beyond reasonable doubt. This is essentially another way of saying that a person is innocent until proven guilty (see Chapter 32).

Civil proceedings [1.760] Civil proceedings is the term used to describe all other proceedings that are not criminal proceedings. A person will commence civil proceedings in order to enforce some legal right which they believe they have against another, for example for breach of contract, or for the commission of a tort. The party commencing the action is called the plaintiff and the party against whom the action is brought, the defendant. The procedural steps for bringing a civil action vary according to the particular court. In the Supreme Courts a civil action is generally commenced by the issue of a document called a writ or, in New South Wales, a statement of claim. This is a formal document issued by an officer of the superior court and it contains a brief statement, prepared by the plaintiff or the plaintiff’s legal advisers, of the cause of action. The plaintiff has to cause the writ to be served on the defendant. The defendant then has a limited period within which to file a document with the court, known as a notice of “appearance”, indicating their intention to defend the action. A copy of the appearance is required to be served on the plaintiff’s solicitor. If the defendant fails to file an appearance, the plaintiff may bring the matter before the court for judgment in the absence of the defendant. The writ sets out briefly the nature of the plaintiff’s cause of action but a more detailed statement of facts is required before the matter can proceed to trial. Such statement is set out in a document called a statement of claim which may be delivered with the writ, or after the defendant has entered an appearance. The defendant, if he or she intends to defend the action, is required to respond to the plaintiff’s statement of claim by filing with the court, and serving on the plaintiff, a document known as a “defence”. The defendant must admit or deny in their defence each of the allegations in the plaintiff’s statement of claim. If the defendant relies on facts which do not appear in the statement of claim, these must be set out in their defence and the plaintiff will respond to these in a further document known as a reply. The aggregate of these documents are known as “pleadings” and it is by this system of pleading that the parties determine the matters of dispute between them.

Interrogatories [1.770] In pre-trial civil proceedings interrogatories may be delivered by one party to the other. Interrogatories are a set of questions about the facts of the case that the other party is obliged to answer on oath. These answers can be used as part of the evidence at the hearing of the case. Interrogatories are designed to obtain admissions of fact and narrow the issues in dispute.

Discovery [1.780] A further useful procedure available in civil proceedings is that of discovery. A party who is asked to give discovery must make a statement on oath as to all the relevant documents in their possession or control and can be required to allow the other party to inspect and take copies of these documents. In this way the parties can find out details of the other side’s case. Certain documents are excepted from the process of discovery, for example, the instructions given by a party to their legal adviser.

chapter 1 The Australian Legal System

The trial [1.790] If the parties are unable to reach a settlement, the dispute will eventually come on for trial before the court. Counsel for the plaintiff will open her or his case with an address setting out in broad terms what the case is about and outlining the evidence to be presented. The plaintiff’s witnesses are then called and examined in turn by the plaintiff’s counsel. This is known as evidence-in-chief. Each witness on completing their evidence may be cross-examined by counsel for the defendant. After cross-examination has been completed, the plaintiff’s counsel has the right to re-examine a witness in respect of matters arising out of the cross-examination. It is then for the defendant’s counsel to open their case and to call witnesses in support of the defence. The defendant’s witnesses are examined by the defendant’s counsel and may be cross-examined by the plaintiff’s counsel. If necessary, they may be re-examined by the defendant’s counsel. On the close of the defendant’s case, the plaintiff’s counsel may adduce evidence in reply to matters raised in the defence. On completion of the evidence on both sides, first the plaintiff’s counsel and then the defendant’s counsel will give their closing address. If it is a jury trial the judge will sum up, that is, identify the facts, survey the evidence and explain the relevant legal rules. When a decision is reached by the jury a verdict is entered. If the case is heard by a judge and jury, the decision on the facts is made by the jury and the decision on the law is made by the judge. Where the case is heard by a judge sitting alone, which is the more usual situation in civil cases, the judge will determine both questions of fact and law. After a decision has been reached, the court will make appropriate orders, for example, order the defendant to pay the damages assessed for the breach of contract or tort and make an order for costs. An appeal to a higher court will normally be available.

Standard of proof [1.800] In civil proceedings the plaintiff has a lesser standard of proof than in criminal proceedings and in order to succeed must prove their case on the balance of probabilities.

The legal profession [1.810] The legal profession is basically composed of solicitors and barristers.

Solicitors [1.820] A solicitor is a general practitioner of the law. Where a member of the public has a dispute which has legal implications, requires legal documents to be drawn up in respect of a particular transaction or matter, or needs advice on some aspect of the law then they will generally consult a solicitor. The work of a solicitor includes, for example, drawing up contracts regarding commercial dealings, following through the legal technicalities of forming a company and advising on taxation matters. In relation to litigation, that is, cases to be heard before the court, the solicitor’s function is to ascertain the facts and procure the necessary documents and other evidence required by the barrister who has been briefed to conduct the case. In New South Wales and Queensland there is a divided legal profession. In other words there is a clear distinction in those States between solicitors on the one hand and barristers on the other. Although the legal profession is not technically divided in this way in Victoria, and a person is admitted both as a solicitor and a barrister in that State, the distinction between these two branches of the profession is generally maintained in practice. In South Australia and Western Australia there is similarly what is known as a “fused” legal profession; that is to say, a person is admitted to practise as both a solicitor and barrister. Accordingly, in the latter States there are those who practise exclusively as solicitors, those who practise exclusively as barristers, and those who practise as both.

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Barristers [1.830] Barristers are generally responsible for actually conducting cases in court. They also provide solicitors with legal opinions on difficult points of law. Barristers tend to specialise in a particular branch of the law. Whereas a person can see a solicitor for the first time simply by going to the solicitor’s office, or phoning up to make an appointment, a barrister cannot usually deal directly with a client in this way but must first have been instructed in the matter by a solicitor. That is to say, the client will have gone to a solicitor with their problem and if the problem involves litigation the solicitor will usually “brief” or instruct a barrister in the matter. Alternatively, the issue in question may be one of some legal complexity requiring specialist advice and the solicitor may well seek an opinion from a barrister who is an expert in that particular area of law. The solicitor is paid by the client but the barrister is paid by the solicitor whose responsibility it is to collect the fees from the client. Leading barristers in each State may apply to “take silk”, that is, be appointed a Senior Counsel (or SC), with the exceptions of Queensland where the appointment is to Queen’s Counsel (or QC) and Victoria where counsel taking silk may choose which title they prefer to use. In practice, a solicitor will only brief a Senior Counsel or Queen’s Counsel if the case is of sufficient importance and difficulty to warrant the additional cost involved.

Alternative methods of dispute resolution [1.840] The delay and ever-increasing cost of litigation has led in recent years to a growing emphasis on alternative methods of settling disputes outside formal court proceedings. Federal legislation now allows the Federal Court and the Federal Circuit Court to impose a penalty in costs where a party does not take “genuine steps” to resolve a dispute before civil proceedings are brought. 22 It is proposed to outline the system of commercial arbitration and then to consider other alternative methods of dispute resolution.

Commercial arbitration [1.850] Arbitration is the reference of a dispute to an independent third party selected by the parties or by their nominee instead of litigating the matter in the courts. Parties to a commercial dispute may agree to submit it to arbitration either by an arbitration clause in an agreement or at the time the dispute arises. The advantages of arbitration are seen as avoidance of publicity (since the proceedings are in private); avoidance of delay in having the dispute settled; the procedure is simpler and less formal than that in a court of law; reduction of expense; and, should the matter be of a technical nature such as a building dispute or involve a complex accounting or commercial matter, a person having the required technical qualifications and expertise may be appointed arbitrator.

22

See Civil Dispute Resolution Act 2011 (Cth), s 12(1); Superior IP International Pty Ltd v Ahearn Fox Patent and Trade Mark Attorneys [2012] FCA 282 at [30]ff.

chapter 1 The Australian Legal System

All States and Territories except the Australian Capital Territory have introduced new uniform legislation regarding domestic commercial arbitrations. 23 As at 16 September 2016 no Bill for a new arbitration law had been introduced into the ACT Legislative Assembly. The former uniform Act remains in force in that jurisdiction. 24 The uniform arbitration legislation is based upon the UNCITRAL Model Law on International Commercial Arbitration 25 and generally adopts the same numbering as the Model Law. Under Australian law broadly the same regime applies to both international and domestic commercial arbitrations. The State and Territory Acts apply only to domestic commercial arbitrations: s 1(1). An arbitration is domestic if (a) the parties have their places of business in Australia when they conclude their arbitration agreement; and (b) the parties have agreed in writing that their disputes are to be settled by arbitration; and (c) if the Commonwealth Act regarding international arbitrations is not applicable: s 1(3). An arbitration agreement is defined as an agreement by which the parties agree that disputes within their legal relationship will be submitted to arbitration: s 7(1). The agreement may be a contractual provision or a separate agreement: s 7(2). An arbitration agreement must be in writing: s 7(3). However, the definition of writing is very broad: s 7(4) – (8). Courts may not intervene in the arbitral process except as provided by the Act: s 6. Several sections of the Act provide for court intervention in particular circumstances: ss 6 – 9 and 36. Where an action relating to the subject matter covered by the arbitration agreement is brought before a court, the court must refer the matter to arbitration if a party makes that request no later than when they make their first submission regarding the substance of the dispute: s 8(1). The parties may agree upon the number of arbitrators: s 10(1). If the parties do not agree, there shall be one arbitrator: s 10(2). The parties may agree upon the process of appointment of the arbitrators: s 11(2). If they do not reach agreement regarding the process, in the case of a three-arbitrator panel where there are two parties, each party shall appoint one, and the two arbitrators shall appoint the third: s 11(3)(a). The Supreme Court may appoint a sole arbitrator if the parties are unable to agree on the appointment: s 11(3)(b). The arbitral tribunal may grant interim measures of protection regarding the subject matter of the dispute: s 17(1) – (2). The tribunal may grant interim measures that “maintain or restore the status quo” pending its decision on the dispute: s 17(2)(a). A tribunal may make orders for the preservation of assets: s 17(2)(c). This is similar to a Mareva injunction. See Mareva Compania Naviera SA v International Bulkcarriers SA [1980] 1 All ER 213 at 215. A tribunal may also make orders for the preservation of evidence that may be destroyed: s 17(2)(d). This is similar to an Anton Piller order. See Anton Piller KG v Manufacturing Processes Ltd [1976] Ch 55 at 61-62. The uniform legislation allows for judicial enforcement of interim measures: s 17H. The tribunal may request the assistance of the Supreme Court in taking evidence: s 27(1). The court may assist as permitted by its jurisdiction and subject to its rules of court: s 27(2). The court may issue subpoenas requiring the attendance of witnesses or the production of documents before the tribunal: s 27A(1). 23

24 25

Commercial Arbitration Act 2010 (NSW); Commercial Arbitration Act 2011 (Vic); Commercial Arbitration Act 1990 (Qld); Commercial Arbitration Act 2011 (SA); Commercial Arbitration Act 2012 (WA); Commercial Arbitration Act 2011 (Tas); Commercial Arbitration (National Uniform Legislation) Act 2011 (NT). See generally GA Moens, J Trone and P Evans “Annotation of the Commercial Arbitration Act 2012 (WA)” in E Bergsten (ed), International Commercial Arbitration (Oceana, New York, 2014). Commercial Arbitration Act 1986 (ACT). UNCITRAL Model Law on International Commercial Arbitration adopted 21 June 1985 and as revised 7 July 2006, [2006] Uniform Law Review 866; A/61/17 p 56.

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The High Court has held that at common law arbitral proceedings are assumed to be private but not confidential: Esso Australia Resource Ltd v Plowman (1985) 183 CLR 10 at 30, 34, 39, 48. Under the new uniform legislation confidentiality is the default position unless otherwise agreed by the parties: s 27E(1). The tribunal’s award must be made in written form: s 31(1). It must be supported by written reasons, unless the parties have agreed otherwise or the award records a settlement: s 31(3). An arbitrator may order specific performance if the Supreme Court would have power to make such an order in relation to the particular contract. This is subject to any contrary agreement between the parties: s 33A. The only means of judicial recourse against an award are an application to set aside the award or an appeal against the award: s 34(1). The court may not set aside an award for an error of fact or law. The court may only set aside an award in seven circumstances: s 34(2). The first five circumstances are dependent upon proof by the applicant: s 34(2)(a). The last two are based upon a finding by the court: s 34(2)(b). First, the applicant may show that a party to the arbitration agreement was under an incapacity: s 34(2)(a)(i). Secondly, the arbitration agreement was invalid under the law that was chosen by the parties, or if no law was indicated in the contract, under the law of the State where the application was made: s 34(2)(a)(i). Thirdly, the applicant did not receive proper notice of the arbitral proceedings or of an arbitrator’s appointment, or the applicant was unable to present their case for some other reason: s 34(2)(a)(ii). Fourthly, the award deals with matters beyond the scope of the submission to arbitration: s 34(2)(a)(iii). If the matters beyond jurisdiction may be severed from the matters within jurisdiction, only part of the award will be invalid: s 34(2)(a)(iii). Fifthly, the composition of the tribunal or its procedure was not in accordance with the agreement between the parties, except where the agreement was contrary to a mandatory provision of the Act: s 34(2)(a)(iv). Alternatively, where there was no relevant agreement between the parties, the composition of the tribunal or its procedure was not in accordance with the Act: s 34(2)(a)(iv). Sixthly, if the court determines that under the law of this State the subject matter of the dispute cannot be settled by arbitration: s 34(2)(b)(i). Seventhly, the court may set aside the award if it finds that the award conflicts with the public policy of this State: s 34(2)(b)(ii). An application to set aside an award must be made within three months of the date when the applicant received the award: s 34(3). Appeals to the court against awards may only be made where before the end of the appeal period the parties agree to allow an appeal and where the court grants leave: s 34A(1). In practice appeal rights would only be effective if provided for in the arbitration agreement. It is improbable that a successful party would agree to an appeal of the award. With one exception, the grounds for refusing to recognise or enforce an award are the same as the grounds for setting aside an award: s 36(1). There is an additional ground for refusing recognition or enforcement: “the award has not yet become binding on the parties or has been set aside or suspended by a court of the State or Territory in which, or under the law of which, that award was made”: s 36(1)(a)(v). The expansion of international trade has led to an increase in international commercial arbitration. Part 2 of the International Arbitration Act 1974 (Cth) provides for the recognition and enforcement of foreign

chapter 1 The Australian Legal System

arbitral awards in State and Territory courts. Under Pt 3 of the Act the Model Law is applicable to all international commercial arbitrations conducted in Australia unless the parties have expressly contracted out of its provisions. 26

Alternative dispute resolution [1.870] The expression “alternative dispute resolution” (or ADR) refers to methods of dispute management that offer an alternative to litigation. Methods of alternative dispute resolution can be classified as facilitative, advisory, or determinative processes. Facilitative processes include negotiation, mediation and facilitation. Advisory processes include conciliation and independent expert appraisal. Determinative processes include arbitration and private judging. A range of ADR processes are described in the next section. The processes appear in order of the level of third party neutral intervention in the particular process.

Negotiation [1.880] Negotiation between the parties with a view to seeking a mutually acceptable outcome through discussion, either with or without the assistance of a third party, is the most commonly used method of resolving disputes. The majority of commercial disputes are resolved by negotiation between the parties.

Mediation [1.890] Where the parties are unable to negotiate a settlement between them they may seek mediation of the dispute. Mediation is a voluntary negotiation process in which a neutral third party, the mediator, assists disputing parties to find their own solution to their dispute by helping them to isolate the issues in dispute, to develop options for their resolution and to reach an agreement that accommodates the interests and needs of all the parties.

Conciliation [1.900] In conciliation, a neutral third person assists the parties to negotiate as in mediation but exercises greater influence over the outcome than is the case with mediation. The conciliator may suggest options and possible solutions and is generally much more directive than a mediator. In Australia conciliations often take place within a statutory framework, for example, complaints of discrimination under federal and State anti-discrimination legislation. 27

Independent expert appraisal [1.910] Expert appraisal is a process that provides for an independent expert appointed by the parties to give a determination on some disputed issue of fact or law. The independent expert acts in an investigatory, inquisitorial manner in obtaining the information necessary to arrive at a proper determination of the issue. The parties will decide whether the determination of the independent expert is to be final and binding upon them. If not, they may use the determination as a basis for negotiating a settlement, or at least as clarifying the issues between them. The issues to be determined by the independent expert may be factual, a trade or 26 27

See J Trone and GA Moens, “The International Arbitration Act 1974 (Cth) as a Foundation for International Commercial Arbitration in Australia” (2007) 4 Macquarie Journal of Business Law 293. Australian Human Rights Commission Act 1986 (Cth), ss 46P–46PN; Anti-Discrimination Act 1977 (NSW), s 91A; Equal Opportunity Act 2010 (Vic), s 112; Anti-Discrimination Act 1991 (Qld), ss 158–164AA; Equal Opportunity Act 1984 (SA), ss 27 and 95; Equal Opportunity Act 1984 (WA), ss 91–92; Anti-Discrimination Act 1998 (Tas), ss 75–77; Human Rights Commission Act 2005 (ACT), ss 54–67; Anti-Discrimination Act 1992 (NT), ss 78–81.

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industry practice or custom, or legal. Independent expert appraisal needs to be distinguished from arbitration since, in the case of an arbitration, the Commercial Arbitration Acts will apply: see [1.850]. The distinction can sometimes be a fine one: Capricorn Inks Pty Ltd v Lawter International (Australasia) Pty Ltd [1989] 1 Qd R 8 at 28, 33, 39.

Commercial dispute centres [1.950] The Australian private sector has played an active role in the development of mediation practice in Australia. Private sector organisations offer a variety of mediation services including mediations, lists or panels of mediators who are available to mediate disputes, mediation venues and standard mediation documentation. In addition, many industries have integrated mediation and other forms of ADR into their dispute management processes and grievance procedures without legislative compulsion. The Financial Ombudsman Service is an example of such a dispute management scheme. The conditions under which private mediators perform their mediation services varies according to whether or not they mediate under the umbrella of a particular private sector organisation and, if so, which one. For example, unless provided by the organisation for which they mediate or by specific legislation, mediators do not enjoy immunity from prosecution as do judges. 28

Further reading Australian Legal Development R Hinchy, The Australian Legal System: History, Institutions and Method (2nd ed, Thomson Reuters, Sydney, 2015). Australian Constitutional System G Williams, S Brennan and A Lynch, Blackshield and Williams Australian Constitutional Law and Theory: Commentary and Materials (6th ed, Federation Press, Sydney, 2014). GA Moens and J Trone, Lumb, Moens & Trone The Constitution of the Commonwealth of Australia Annotated (9th ed, LexisNexis Butterworths, Sydney, 2016). PA Gerangelos et al, Winterton’s Australian Federal Constitutional Law: Commentary and Materials (3rd ed, Thomson Reuters, Sydney, 2013). Sources of Law S Corcoran and S Bottomley (eds), Interpreting Statutes (Federation Press, Sydney, 2005). K Hall and C Macken, Legislation and Statutory Interpretation (4th ed, LexisNexis Butterworths, Sydney, 2015). P Herzfeld, T Prince and S Tully, Statutory Interpretation Principles (Thomson Reuters, Sydney, 2014). D Pearce and S Argument, Delegated Legislation in Australia (4th ed, LexisNexis Butterworths, Sydney, 2012). 28

For examples of the statutory grant of immunity to mediators, see Dispute Resolution Centres Act 1990 (Qld), s 35(1); Mediation Act 1997 (ACT), s 12 (repealed by Courts Legislation Amendment Act 2015 (ACT), s 4).

chapter 1 The Australian Legal System

D Pearce and RS Geddes, Statutory Interpretation in Australia (8th ed, LexisNexis Butterworths, Sydney, 2014). Legal Research and Writing B Bott and R Talbot-Stokes, Nemes and Coss' Effective Legal Research (6th ed, LexisNexis Butterworths, Sydney, 2015). C Cook et al, Laying Down the Law (9th ed, LexisNexis Butterworths, Sydney, 2015). R Finkelstein and D Hamer (eds), Lexis Nexis Concise Australian Legal Dictionary (5th ed, LexisNexis Butterworths, Sydney, 2015). T Hutchinson, Researching and Writing in Law (3rd ed, Lawbook Co., Sydney, 2010). L McNamara and A Lynch, Australian Legal Research: Exercises and Tasks (3rd ed, Butterworths, Sydney, 2004). T Mann (ed), Australian Law Dictionary (2nd ed, Oxford University Press, South Melbourne, 2013). J Sanderson and K Kelly, A Practical Guide to Legal Research (3rd ed, Lawbook Co, Sydney, 2014). R Watt and F Johns, Concise Legal Research (6th ed, Federation Press, Sydney, 2009). Doctrine of Precedent and Hierarchy of the Courts J Carvan, Understanding the Australian Legal System (7th ed, Thomson Reuters, Sydney, 2015). R Chisholm et al, Understanding Law (8th ed, LexisNexis Butterworths, Sydney, 2012). C Cook et al, Laying Down the Law (9th ed, LexisNexis, Sydney, 2015). J Crawford and B Opeskin, Australian Courts of Law (4th ed, Oxford University Press, Melbourne, 2004). Legal Profession A Lamb, J Littrich, K Murray, Lawyers in Australia (3rd ed, Federation Press, Sydney, 2015). Alternative Methods of Dispute Resolution L Boulle, Mediation: Principles, Process, Practice (3rd ed, LexisNexis Butterworths, Sydney, 2011). S Hardy and O Rundle, Mediation for Lawyers (CCH Australia, Sydney, 2010). D Jones, Commercial Arbitration in Australia (2nd ed, Thomson Reuters, Sydney, 2013). T Sourdin, Alternative Dispute Resolution (5th ed, Thomson Reuters, Sydney, 2016). D Spencer, Principles of Dispute Resolution (Thomson Reuters, Sydney, 2011). D Spencer and S Hardy, Dispute Resolution in Australia: Cases, Commentary and Materials (3rd ed, Thomson Reuters, Sydney, 2014).

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Internet sites Legislation and Case Law Australasian Legal Information Institute (AustLII) http://www.austlii.edu.au (decisions of federal, State and Territory courts and tribunals; Commonwealth, State and Territory consolidated statutes) Parliaments The various Parliamentary websites generally provide access to Hansard, Bills, explanatory memoranda and Committee Reports: (Commonwealth) Parliament of Australia http://www.aph.gov.au Legislative Assembly for the ACT http://www.parliament.act.gov.au Parliament of New South Wales http://www.parliament.nsw.gov.au Legislative Assembly of the Northern Territory http://www.nt.gov.au/lant Queensland Parliament http://www.parliament.qld.gov.au Parliament of South Australia http://www.parliament.sa.gov.au Parliament of Tasmania http://www.parliament.tas.gov.au Parliament of Victoria http://www.parliament.vic.gov.au Parliament of Western Australia http://www.parliament.wa.gov.au

Journals Australasian Dispute Resolution Journal Federal Law Review Public Law Review

PART PT 2 LAW OF CONTRACT

Chapter 2 Chapter 3 Chapter 4 Chapter 5 Chapter 6 Chapter 7 Chapter 8 Chapter 9 Chapter 10 Chapter 11 Chapter 12

Introduction to the Law of Contract Offer and Acceptance Intention to Create Legal Relations Consideration, Promissory Estoppel and Formalities Contractual Capacity Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts Legality of Object Contents and Interpretation of the Contract Operation of the Contract Termination of a Contract Remedies

chapter 2

Introduction to the Law of Contract [2.20] Definition of a contract ........................................................................................................................................ 50 [2.30] Essential elements of a contract ................................................................................................................... 50 [2.50] Classification of contracts ................................................................................................................................. 51 [2.110] Illustration of simple express written contract ................................................................................... 52

Introduction [2.10] The law of contract is the basis of commercial law. Much of the law governing the sale of goods, agency, negotiable instruments, insurance, partnerships and so on concerns the application of general contractual principles to specialised areas of commercial law. It is necessary to distinguish those agreements that are regarded by the law as valid and enforceable and those which are mere agreements and not enforceable. The terms “contract” and “agreement” are frequently used interchangeably. Every contract involves an element of agreement; however, not every agreement amounts, in law, to a contract. For this reason it is necessary to define what constitutes a “contract”.

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Definition of a contract [2.20] A contract is an agreement between two or more parties under which legal rights and obligations are created which will be enforced in the courts. More succinctly, a contract is a promise or a set of promises that the law will enforce. The law of contract is concerned with the principles applicable to the formation, performance, interpretation and breach of contracts.

Essential elements of a contract [2.30] For there to be a contract, certain essential elements must be present. In the absence of one or more of these elements, the agreement between the parties will not constitute a contract and will not be enforced by the courts. The essential elements of a contract are: (a)

an offer by one party and its acceptance by the other;

(b)

the intention of the parties to create legal relations;

(c)

valuable consideration (unless the promise is made by deed);

(d)

legal capacity of the parties to act;

(e)

a genuine consent by the parties; and

(f)

legality of the objects of the agreement.

The requirement that there be an offer by one party which is accepted by the other together form the agreement between the parties. The nucleus of all contracts is an agreement. However, not all agreements are enforceable at law. For example, a social agreement (say, where A agrees with B to play cards at B’s house on a certain night) does not give rise to contractual rights since the parties do not intend their agreement to be legally binding. Hence, the requirement that for a contract to come into existence, the parties must intend their agreement to create legal relations. [2.40] A further essential element in the formation of a contract is that some value must have been given in exchange for the other party’s promise, that is, in a simple contract the agreement must be supported by valuable consideration. This requirement means that the law will not enforce a gratuitous promise. For example, a promise by A to give something to B is not legally enforceable. An exception is where the promise is made under seal, that is, contained in a formal deed, in which case valuable consideration is not necessary for the promise to be enforceable. The parties to a contract must be legally capable of reaching a binding agreement, that is, have the legal capacity to enter into a contract. To be enforceable, the agreement must have been the product of a genuine consent by each of the parties. Factors affecting genuine consent such as mistake, misrepresentation, duress and undue influence may affect the enforceability of the agreement. The subject matter of the agreement must be legal. Each of these essential elements of a contract are discussed in further detail in the following chapters. If one of these essential elements is lacking then the courts will not enforce the agreement between the parties. Assuming that the court is satisfied that there is a valid contract, its next task in the event of dispute is to determine the nature and extent of what the parties have agreed by interpreting the terms of the contract. The court is then in a position to determine whether a party is in breach of their obligations under the contract and, if so, decide the appropriate remedy available to the other party.

chapter 2 Introduction to the Law of Contract

Classification of contracts [2.50] Some of the common types of contract and their basic characteristics are outlined at [2.60]–[2.100].

Simple contracts [2.60] All contracts (other than contracts under seal) are termed “simple contracts”. In general, a simple contract may be oral, wholly or partly in writing, or may even be implied by the conduct of the parties. However, some simple contracts are required by statutory provision to be in writing, and others are required to be evidenced in writing. Every simple contract, irrespective of how it is formed, must be supported by consideration: see Chapter 5.

Contracts under seal [2.70] A contract under seal (or formal contract) is referred to as a deed. It derives its validity from its particular form. A contract under seal must be in writing and signed, sealed and delivered. The basic distinction between a simple contract and a contract under seal is that the latter does not require consideration: see Chapter 5.

Express and implied contracts [2.80] Where the intentions of the parties are stated in explicit terms, either orally or in writing, they constitute an express contract. This is the usual type of contract. For example, an agreement is signed to buy a car and the price is to be paid by instalments over the next 12 months. All the terms of the contract are agreed upon and expressed in the written contract. An implied contract is one in which the terms of the contract are inferred from the conduct of the parties and the surrounding circumstances. An example of this type of contract is where you hail and enter a taxi. By this act the law implies that you promise to pay the fare to your destination and the taxi driver impliedly agrees to transport you.

Bilateral and unilateral contracts [2.90] Most contracts consist of the exchange of mutual promises, the actual performance of which is to occur at some future time. For example, where a steel manufacturer enters into a contract with a coal supplier in February for the delivery of coal during August at a specified price, each party has made a promise to the other to do something at a future date. Such a contract, consisting of a “promise for a promise” is a bilateral contract. A unilateral contract is one in which an offer is made inviting acceptance by actual performance rather than by a promise. For example, the offer of a reward for the return of a lost dog is accepted by the return of the dog. A unilateral contract “comes into existence when one party promises to do something in return for acts performed by the other party, with the intention of being contractually bound if those acts are performed, and the other party accepts that promise by performing his or her side of the bargain”: Gippsreal Ltd v Registrar of Titles (2007) 20 VR 157 at [42].

Valid, voidable, void and unenforceable contracts [2.100] A valid contract is one in which all the essential elements are present. As a result it is enforceable against both parties. The usual remedy for breach of the contract is a judgment for damages. Sometimes an equitable remedy such as specific performance may be available.

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A voidable contract is one which a party may avoid, that is, get out of, if that party wishes to do so. For example, a person who was induced to enter into a contract by the other party’s fraud may avoid the contract. A void contract is one which, as far as the law is concerned, never existed at all. It is of no legal effect between the parties and thus does not create legal rights or obligations. For example, where the purpose of the contract is totally illegal, such as a contract to commit a crime, the contract would be void. An unenforceable contract is one which is prima facie a valid contract but which by reason of some technical defect is not capable of being enforced by action by one or both of the parties, for example, a contract made verbally which is required by statute to be evidenced in writing and which has not been so evidenced.

Illustration of simple express written contract [2.110] EXAMPLE OF CONTRACT Date Parties

Agreement to sell Deposit Completion

Attestation Clause

THIS AGREEMENT made the fifth day of November 2017. BETWEEN WILLIAM JOHN AUSTIN of “Hilton Park” Tamworth in the State of New South Wales Grazier (hereinafter called the Vendor) of the one part and HAROLD ERIC GRAY of Tamworth aforesaid Butcher (hereinafter called the Purchaser) of the other part. 1. The Vendor agrees to sell and the Purchaser agrees to purchase 200 steers branded WA and depastured at “Hilton Park” aforesaid for the sum of $70,000. 2. Upon signing of this contract the Purchaser will pay to the Vendor a deposit of $10,000 and the balance of purchase money shall be paid on completion. 3. The Vendor shall deliver the said steers to Tamworth Sale Yard and completion of this contract shall take place on the sixteenth day of December 2017. AS WITNESS the hands of the parties hereto. SIGNED by the said WILLIAM JOHN AUSTIN in the presence of: SIGNED by the said HAROLD ERIC GRAY in the presence of:

Further reading for Chapters 2-12 JW Carter, Carter's Guide to Australian Contract Law (3rd ed, LexisNexis Butterworths, Sydney, 2015). JW Carter, Contract Law in Australia (6th ed, LexisNexis Butterworths, Sydney, 2013). JW Carter, Cases and Materials on Contract Law in Australia (6th ed, LexisNexis Butterworths, Sydney, 2012). MP Ellinghaus, Australian Cases on Contract (Code Press, Melbourne, 2009). J Gooley, P Radan and I Vickovich, Principles of Australian Contract Law (3rd ed, LexisNexis Butterworths, Sydney, 2014). S Graw, An Introduction to the Law of Contract (8th ed, Thomson Reuters, Sydney, 2015).

chapter 2 Introduction to the Law of Contract

D Khoury and YS Yamouni, Understanding Contract Law (8th ed, LexisNexis Butterworths, Sydney, 2010). J Paterson, R Robertson and A Duke, Principles of Contract Law (5th ed, Thomson Reuters, Sydney, 2016). J Paterson, R Robertson and A Duke, Contract: Cases and Materials (12th ed, Thomson Reuters, Sydney, 2012). NC Seddon, RA Bigwood and MP Ellinghaus, Cheshire and Fifoot Law of Contract (10th Aust ed, LexisNexis Butterworths, Sydney, 2012).

Journal Journal of Contract Law

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Offer and Acceptance [3.20] The offer ...................................................................................................................................................................... 56 [3.160] Acceptance............................................................................................................................................................. 59

Introduction [3.10] The first essential element in the formation of a contract is an offer by one party and the acceptance of that offer by another. In practice, an offer and acceptance may not be as clear as, for example, where A says to B, “I offer to sell you this” and B says, “I accept”. If a valid contract is alleged it must be shown on analysing all the negotiations that one person has made an offer and another person has accepted that offer expressly or impliedly on the terms in which it was made. An agreement, and thus a contract, implies three things: (a)

two parties at least;

(b)

an offer; and

(c)

an acceptance of that offer.

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The offer [3.20] An offer is a proposal by one party to enter into a legally binding contract with another. The offer may be made in writing, orally or implied by conduct. An offer can only exist if there is a firm promise to do or refrain from doing something. The person making the offer must intend that it can be converted into a binding obligation by acceptance.

Offers distinguished from invitations to treat [3.30] It is important to distinguish an offer which will give rise to binding obligations on acceptance from an “invitation to treat”; that is, an indication of willingness to deal or trade. An invitation to treat is essentially an initial approach to others inviting them to make an offer which may or may not be accepted. For example, if A said: “I want to sell my car but I will not let it go for less than $5,000”, that is an invitation to treat. Even if you desired to purchase A’s car for $5,000 he cannot be compelled to sell it to you for he has made no offer which you can accept. However, if A had said, “I will sell you my car for $5,000”, that would be an offer.

Shop displays, catalogues and advertisements [3.40] The display of an article in a shop window, even with a card indicating its price, is not generally an offer but merely an invitation for someone to make an offer of purchase. A prospective purchaser makes the offer to purchase which the shopkeeper may either accept or reject. Window displays, catalogues, price lists and advertisements are usually invitations to deal and not firm offers by the seller. It has been held that a bookseller who sends out a catalogue of books with prices indicated against them is not making an “offer” but merely issuing an invitation to transact business: Grainger v Gough [1896] AC 325 at 334. “… it would be wrong to say that the shopkeeper is making an offer to sell every article in the shop to any person who might come in and that that person can insist on buying any article by saying ‘I accept your offer’. I agree with the illustration put forward during the case of a person who might go into a shop where books are displayed. … There is no contract by the shopkeeper to sell until the customer has taken the book to the shopkeeper … and said ‘I want to buy this book’ and the shopkeeper says ‘Yes’. That would not prevent the shopkeeper, seeing the book picked up, saying: ‘I am sorry I cannot let you have that book: it is the only copy I have got and I have already promised it to another customer’”: Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1952] 2 QB 795 at 802 per Lord Goddard CJ; affirmed Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 at 406-408 (CA). In the latter case it was held that this principle extends to self-service stores. Thus, the taking of articles from the shelves by the customer would normally constitute an offer to buy and not the acceptance by her or him of an offer to sell.

Auction sales [3.50] In the case of an auction sale, the auctioneer’s call for bids is only an invitation to treat. Where a bid is made, such constitutes an offer from the bidder to buy at that price. The auctioneer may then either accept or reject the bid on behalf of the principal.

Tenders [3.60] A statement that goods are to be sold by tender is usually regarded as an invitation to treat. Accordingly, the person making the statement is not bound to sell to the highest tenderer, unless it was

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expressly stated in the original statement that he or she would do so: Spencer v Harding (1870) LR 5 CP 561 at 564. The offer is normally made by those submitting tenders and there is no contract until the person who called for tenders accepts one of them. However, although a party calling for tenders may do no more than issue an invitation to treat, the steps taken by it may result in the making of contractual commitments in relation to the whole or parts of the tendering process and, accordingly, each case turns on its own facts: Hughes Aircraft Systems International v Airservices Australia (1997) 76 FCR 151 at 184.

Persons to whom an offer may be made [3.70] An offer can be made to a specific person or persons, to a particular class of persons, or to the world at large. It may only be accepted by the person or persons for whom it was intended. However, if the offer is made to the world at large, for example by way of a general advertisement, then it may be accepted by anyone who reads the advertisement.

case [3.80] The defendants manufactured an influenza preparation called the carbolic smoke ball. They advertised their preparation by offering to pay £100 to any purchaser who used it in accordance with the printed directions and caught influenza. The advertisement stated that the defendants had deposited £1,000 with their bankers to show their sincerity. The plaintiff bought and used the smoke ball as directed but still caught influenza. She claimed the £100 and when her claim was rejected sued the defendants. The Court of Appeal rejected the defendants’ arguments that the advertisement was a mere puff and was too vague to constitute a definite offer. In the court’s view there was an offer made to all the world which was capable of acceptance by those members of the public who performed the conditions set out in the offer. Accordingly, it was held that the plaintiff was entitled to recover the £100: Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 261-262, 268, 273.

Communication of offer [3.90] The offer must be communicated, that is, brought to the notice of the person to whom it is made. Unless an offer is communicated there can be no acceptance and therefore no contract. The reason for the rule that an offer must be communicated is that the whole basis of the law of contract is that there has been an agreement between the parties. The word “agreement” presupposes that the parties were aware of the fact that what they were doing would lead to an agreement.

Revocation of offer [3.100] An offer is revoked when the offeror formally withdraws the offer. On revocation the offer comes to an end and cannot subsequently be accepted. The offeror can give notice of the revocation of the offer at any time before acceptance. An offer can be revoked notwithstanding that at the time of making the offer, the offeror has said that the offer will remain open for a specified time. There is an apparent, although not real, exception to this rule in the case of offers supported by consideration, or made by deed, which are stated to be capable of acceptance within a specified period of time. In these cases the true analysis is that the promise given for consideration or made by deed means that the offeror is bound by contract not to revoke the offer within

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the time specified. In the event of the offeror in such a case purporting to revoke the offer, the purported revocation is ineffective and the offer may be accepted within the time originally specified.

case [3.110] In Goldsbrough, Mort & Co Ltd v Quinn (1910) 10 CLR 674, the defendant by an agreement gave to the plaintiff in consideration of the sum of 5 shillings the right to purchase certain property within one week at a stated price. Before acceptance the defendant repudiated the offer. The company accepted the offer within the week and brought a suit for specific performance of the agreement. It was held that the option having been given for value was not revocable, and that the acceptance of the offer by the company constituted a binding contract which was enforceable by specific performance: at 678–679, 690–691. [3.120] To be effective the revocation of an offer, like the offer itself, must be communicated to the offeree. Until the time the offeree becomes aware of the revocation, he or she can accept the offer and create a contract.

case [3.130] For example, by letter of 1 October, Van Tienhoven wrote from Cardiff offering goods for sale to Byrne in New York. Byrne received the offer on 11 October and accepted it by telegram on the same day, and by letter on the 15th. Meanwhile, on 8 October, Van Tienhoven had posted a letter withdrawing the offer. The letter did not reach Byrne until 20 October. It was held that the withdrawal of the offer was ineffective. While an offer could be revoked at any time before its acceptance, a revocation was not effective until it had been communicated to the offeree: at 347. A contract binding both parties had been entered into on 11 October when Byrne accepted by telegram the offer of 1 October. At the time of their acceptance of the offer, they were not aware that it had been withdrawn: Byrne & Co v Leon Van Tienhoven & Co (1880) 5 CPD 344 at 348. [3.140] The law does not stipulate any particular way in which the revocation is communicated to the offeree. It simply requires the offeree to be made aware that the offer has been withdrawn. Accordingly, any method of communication is sufficient provided the fact of revocation actually comes to the offeree’s notice. Although as a general rule an offer may be revoked before acceptance, if it takes the form of an offer in exchange for the doing of an act, it may not be open to the person who makes the offer to revoke that offer after the offeree has partly performed the act.

Lapse of offer [3.150] An offer will lapse: (a)

if not accepted within the time stated;

(b)

if not accepted within a reasonable time, where no time for acceptance has been stated;

(c)

if a counter-offer is made, for example if a person offered to sell their car for $5,000 and the person to whom the offer was made replied that they would pay $3,500 for the car, this reply would constitute a counter-offer to buy and the original offer would lapse. The buyer could not then purport to contract by accepting the original offer of $5,000;

chapter 3 Offer and Acceptance

(d)

on the death of either party before acceptance; and

(e)

by loss of contractual capacity by either party, for example by insanity. 1

Acceptance [3.160] An acceptance occurs when the party to whom an offer is made agrees to the proposal of the offeror. Acceptance may be made by word of mouth, in writing, or by conduct and must be made in the manner indicated by the offeror. The offer can only be accepted by the person to whom it is made but there is nothing to prevent an offer being made to a number of persons generally, any of whom may accept. The manner in which the acceptance is to be signified depends upon the terms of the offer, and if no special manner is specified then the mode of acceptance would depend upon the circumstances. It may happen that a person carries out certain acts in ignorance of the fact that an offer exists which is capable of acceptance by so performing those acts. In such a case, where the person carrying out those acts does not do so on the faith of the offer, there is not an acceptance capable of resulting in a binding contract.

case [3.170] A proclamation offered a reward of £1,000 for information that would lead to the arrest and conviction of the person who had murdered two policemen. A and B were arrested and charged with the murder of one of the policemen. B gave evidence which led to the conviction of A and C for the murder of that policeman. B was subsequently released from custody and claimed the reward of £1,000. It was revealed in evidence that B volunteered the information in order to clear himself of a false charge of murder. It was held that as B did not act in reliance upon the offer, there was no acceptance of the offer, and therefore no contract between the parties: R v Clarke (1927) 40 CLR 227 at 231–232, 241, 245.

Communication of acceptance [3.180] The general principle is that acceptance of an offer must be communicated to the offeror for there to be a binding contract between the parties. However, this is subject to the following exceptions, namely: (a)

where the offeror has dispensed with notification of acceptance, that is, where it has been made clear that notification of acceptance is unnecessary;

(b)

where acceptance is to take the form of performance of an act (as in Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256, see [3.80]);

(c)

where the postal acceptance rule applies (as to which, see [3.300]).

In accordance with the general principle stated above, where two people make a contract by word of mouth the acceptance must be actually communicated to the person making the offer.

1

See also D McLauchlan and R Bigwood, “Lapse of Offers Due to Changed Circumstances: A Contract Conversation” (2011) 27 Journal of Contract Law 222

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Further, where the means of communication between the offeror and the offeree is instantaneous, such as the case of the telephone or fax machine, the formation of a contract between the parties is governed by the general rule that a contract is concluded at the time when, and the place where, the acceptance is received.

case [3.190] Where an offer to sell fruit was made by vendors in California to buyers in Sydney, and the latter accepted the offer by telex, it was held that the contract was made in California at the time of the vendor’s receipt there of the buyers’ telex: Mendelson-Zeller Co Inc v T & C Providores Pty Ltd [1981] 1 NSWLR 366 at 369; see similarly Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 14 BCL 91 at 95, 108 (NSWCA). [3.200] A contract whose acceptance is communicated by electronic mail (email) is made in the place where acceptance is received: Olivaylle Pty Ltd v Flottweg AG (No 4) (2009) 255 ALR 632 at [25], affd Olivaylle Pty Ltd v Flottweg AG [2010] FCAFC 62. [3.210] The acceptance must be within the time prescribed or, if no time has been prescribed, then within a reasonable time: Ramsgate Victoria Hotel Co v Montefiore (1866) LR 1 Ex 109 at 111.

Rule as to acceptance [3.220] The following points illustrate the primary basis for the rule as to acceptance. 1.

Acceptance which is to take the form of a promise and not the performance of an act must be communicated to the offeror. Acceptance may be by word of mouth, writing or conduct: P’Auer AG v Polybuild Technologies International Pty Ltd [2015] VSCA 42 at [9], [105], [107].

case [3.230] A local council authorised a waste disposal contractor to charge and retain the proceeds of a fee for the deposit of waste. The council offered to increase the fee which might be charged. By a letter in reply the contractor asked that a higher fee be set. However, the contractor went on to charge and retain the fee set by the council’s offer, which constituted an acceptance by conduct. The contractor’s letter in reply was not a rejection of the offer, but merely a negotiating tactic: Brambles Holdings Ltd v Bathurst City Council (2001) 53 NSWLR 153 at [156]. [3.240] However, silence generally cannot constitute acceptance, “as some external manifestation of assent to the offer [is] required”: Weemah Park Pty Ltd v Glenlaton Investments Pty Ltd [2011] 2 Qd R 582 at [46]; see also Hopcroft v Edmunds (2013) 116 SASR 191 at [75], [91].

case [3.250] A offered to buy B’s horse for a stated price, adding that, “If I hear no more about him I consider the horse is mine at £30 15s”. B made no reply to this offer although it appeared from subsequent dealings that he had made up his mind to accept it. It was held that there was no contract: Felthouse v Bindley (1862) 11 CB (NS) 869; 142 ER 1037 at 875–876 (CB (NS)); 1040 (ER).

chapter 3 Offer and Acceptance

[3.260] Where an offeree takes the benefit of an offer with knowledge of its terms and knowledge of the offeror’s reliance on payment being made in return for his work, the offeree may be taken by the court as having accepted the offer according to its terms and conditions: Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd (1988) 14 NSWLR 523 at 531, 535. 2.

Acceptance which is to take the form of an act does not require communication to the offeror unless the terms of the offer require it. An example of this type of acceptance is Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256, see [3.80].

3.

Acceptance must be unconditional – a qualified acceptance would amount to a counter-offer. In Commonwealth Bank of Australia v Carotino (2011) 111 SASR 573 a party signed a letter undertaking to execute a guarantee after a standard form of guarantee was provided by a bank. No guarantee was provided or executed: at [5]. It was held that the party had not undertaken to act as guarantor: at [64]. Any obligation to execute a guarantee was conditional upon the bank’s provision of the standard form, which never occurred: at [65]. Where the acceptance is made “subject to contract” or “subject to a formal contract to be drawn up by our solicitors”, as often happens in negotiations for the purchase of land, then in the absence of cogent evidence of a contrary intention, there will be no binding agreement between the parties until a formal document has been drafted and signed: Masters v Cameron (1954) 91 CLR 353 at 362-363; Bridle Estates Pty Ltd v Myer Realty Pty Ltd (1977) 51 ALJR 743 at 744, 747, 749; Pavlovic v Universal Music Australia Pty Ltd (2015) 90 NSWLR 605 at [1], [64]-[72], [162]. 2 On the other hand, where parties have reached agreement on the terms of a particular transaction and it is apparent that they intend to be immediately bound by those terms but at the same time intend to have them embodied in a formal document, then there will be a binding contract from the date of their initial agreement: Godecke v Kirwan (1973) 129 CLR 629 at 639-640, 644-645, 648.

4.

Acceptance must follow the conditions, if any, stated in the offer.

case [3.270] A lease contained an option to renew subject to the giving of three months’ previous notice in writing, the punctual payment of rent and the due performance of covenants by the tenant. During the currency of the lease the rent was, without objection by the landlord, paid at irregular intervals and rarely on the due date. The tenant sought to renew the lease but the landlord claimed that the option was not validly exercised. It was held that the punctual payment of rent was a condition which had to be fulfilled before the tenant could validly exercise the option: Gilbert J McCaul (Aust) Pty Ltd v Pitt Club Ltd (1957) 59 SR (NSW) 122 at 123-124. 5.

Acceptance can be made only by the party to whom the offer was made.

6.

Acceptance can be revoked provided the revocation is communicated to the offeror before the acceptance is received.

7.

Acceptance must be made within the time prescribed or, if no time has been prescribed, within a reasonable time.

8.

The existence of the offer must be known to the person accepting it.

2

See JW Carter, E Peden and GJ Tolhurst, “When Three Just Isn’t Enough: the Fourth Category of the “Subject” to Contract’ Cases” (2004) 20 JCL 156; JW Carter, E Peden and GJ Tolhurst “Masters v Cameron — Again!” (2011) 42 Victoria University of Wellington Law Review 49.

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9.

Communication of acceptance must be made in a regular and authorised manner.

case [3.290] P applied for the position of headmaster of a school. The school board passed a resolution appointing him. The resolution was not communicated to P officially. One of the board privately informed him of it. Subsequently the resolution was rescinded. It was held that P’s offer had not been accepted as the resolution was never communicated to him: Powell v Lee (1908) 99 LT 284 at 286.

Postal acceptance rule [3.300] The general principle is that an acceptance must be communicated to the offeror. However, there is an important exception to this principle: the postal acceptance rule. 3 According to this rule, where acceptance by post is contemplated by the parties, acceptance is complete as soon as the letter of acceptance is posted: Henthorn v Fraser [1892] 2 Ch 27 at 33, 36. The acceptance is not affected by delay or loss of the letter in the course of post, provided that the parties contemplated the post as a means of entering into contractual obligations: Household Fire & Carriage Accident Insurance Co Ltd v Grant (1879) 4 Ex D 216 at 219, 223, 227. An offeror can stipulate the required method of acceptance of their offer. Accordingly, the postal acceptance rule is excluded where the offeror requires actual communication of the acceptance. This may arise, for example, where there is an express stipulation in the offer requiring receipt by the offeror of the offeree’s acceptance for it to be effective. In such a case, the mere posting of the acceptance would not create a binding contract: Nunin Holdings Pty Ltd v Tullamarine Estates Pty Ltd [1994] 1 VR 74 at 83-84. Further, the postal acceptance rule may be impliedly excluded where it is apparent that an uncommunicated acceptance was not intended.

case [3.310] C sent a letter by ordinary post to E giving notice within the specified time that it wished to exercise an option to renew its sub-lease. E claimed that it never received the letter. A clause in the sub-lease provided that a notice mailed by registered or certified letter was deemed to be served on E on the third business day following that on which it was posted. The court held the postal acceptance rule could not be relied upon as its operation was impliedly excluded by the clause regarding notification by certified mail. In the circumstances, the ordinary rule applied. Since C’s notice had not been actually communicated to E, C had not effectively exercised its option to renew: Elizabeth City Centre Pty Ltd v Corralyn Pty Ltd (1995) 63 SASR 235 at 238, 242. [3.320] Where the postal acceptance rule applies, a person who makes an offer cannot revoke the offer once a letter of acceptance has been posted by the offeree, even though the acceptance has not yet reached the offeror. This is because the letter of acceptance creates a binding contract at the time of its posting. In other words, if acceptance may be made by post, the revocation of an offer must reach the offeree before the latter actually posts their acceptance, otherwise the revocation will be of no effect. Where the postal 3

See generally D McLauchlan, “The Uncertain Basis of the Postal Acceptance Rule” (2013) 30 JCL 33; E Macdonald, “Dispatching the Dispatch Rule? The Postal Rule, E-mail, Revocation and Implied Terms” (2013) 19, 2 Web Journal of Current Legal Issues, http://webjcli.org (accessed 17 September 2016).

chapter 3 Offer and Acceptance

acceptance rule does not apply, the general principle is that an acceptance can be revoked provided the fact of revocation is communicated to the offeror before the acceptance is received. The New South Wales Court of Appeal declined to extend this rule beyond the context of contractual acceptance. In particular, the Court held that no similar rule applies to loan repayments sent by post: Wardle v Agricultural and Rural Finance Pty Ltd [2012] NSWCA 107 at [210]–[212], [370], [376].

Joint promises [3.330] A promisor or the promisee, or both, may consist of more than one person. Thus A, B and C as promisors may promise X as promisee that they will pay $1,000 on 1 July. This is a joint promise on the part of A, B and C. There are two important divisions of joint promises. The first is those which are purely joint; the second, those which are joint and several. In effect, with joint promises, the promisors all promise to do the thing agreed upon. With promises which are joint and several, all promise to do the thing and each one of them, for herself or himself, and as a separate promise, promises to do the thing agreed upon. The most important distinctions flowing from this difference are: 1.

In the case of a joint promise any one of the joint contractors can insist that any action be taken against all of such contractors and not merely one or some of them.

2.

If the promise is joint and several the promisee is at liberty to take action against all or one or some of the promisors.

3.

If a contract is joint a judgment on the contract obtained against one of the joint promisors bars further action against the others.

4.

If a contract is joint and several, a judgment obtained against one only of the co-promisors does not discharge the others.

5.

If a contract is joint a release of one of the joint contractors from their obligations under the contract operates for the benefit of all, so that they are all released from their obligations.

6.

If a contract is joint and several, a release of one of the contractors from their obligations does not operate to release the other contractors from their obligations.

When is a promise joint? [3.340] A promise is a joint one when it is made by two or more persons without words indicating that each is bound individually as well as jointly. Express words are generally necessary to make a contract joint and several. Examples of joint contracts are: contracts made by partners and a promissory note signed by two or more persons; a bill of exchange accepted by two or more persons.

Further reading See contract texts listed at the end of Chapter 2.

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Intention to Create Legal Relations [4.30] Intention and social and domestic agreements..................................................................................... 66 [4.140] Intention and commercial agreements................................................................................................... 68

Introduction [4.10] An agreement will not give rise to legally enforceable rights and obligations unless the second essential element to the formation of a contract is present, namely, an intention to create legal relations. That is, there must be an intention that the agreement was to be enforceable in the courts, if necessary, in the event of dispute. The test for determining an intention to create legal relations is an objective test, and is not concerned with the subjective intentions of the parties. “[T]he court does not try to discover the intention by looking into the minds of the parties. It looks at the situation in which they were placed and asks itself: Would reasonable people regard the agreement as intended to be binding?”: Merritt v Merritt [1970] 1 WLR 1211 at 1213 per Lord Denning MR. The courts consider what “would objectively be conveyed by what was said or done, having regard to the circumstances in which those statements and actions happened. It is not a search for the uncommunicated subjective motives or intentions of the parties”: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [25]. The intention to create legal relations will be considered in relation to: (a)

social and domestic agreements; and

(b)

commercial agreements.

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Intention and social and domestic agreements Agreements between a husband and wife [4.30] In normal circumstances the courts will regard domestic arrangements between a husband and wife as not intended to give rise to legally enforceable obligations. 1 An example is provided by Balfour v Balfour [1919] 2 KB 571.

case [4.40] The defendant was a civil servant stationed in Sri Lanka. His wife alleged that when it had become clear that she could not again accompany him to Sri Lanka because of her ill health, he had promised to pay her £30 a month as maintenance during the time that they were forced to live apart. She sued for breach of this agreement. Her action failed since it was held that the agreement was an ordinary domestic arrangement which was not intended to give rise to a legally binding contract: Balfour v Balfour [1919] 2 KB 571 at 574, 577, 579. [4.50] The same principle applies to continuing de facto relationships. The principle does not apply to agreements made after the de facto relationship has ended: Shortall v White [2007] NSWCA 372 at [18]. However, where the agreement between a husband and wife falls outside normal domestic arrangements and concerns some essentially commercial matter, such as their relationship under a partnership, then it will be enforceable: Milliner v Milliner (1908) 8 SR (NSW) 471 at 473, 476. Similarly, agreements as to the disposition of property where the marital relationship has broken down will be enforceable.

case [4.60] A husband left his wife to live with another woman. It was arranged that the husband would pay the wife a monthly allowance out of which she was to pay the outstanding balance on the mortgage of the matrimonial home which was in their joint names. The husband signed a document stating that, in consideration of her paying all charges in connection with the home until the mortgage repayments had been completed, he agreed to transfer the house into her sole ownership. The wife paid off the remainder of the mortgage but the husband refused to transfer the house to her. It was held that since the parties had separated, the agreement regarding the ownership of the matrimonial home was one which was intended to create legal relations and was binding on them: Merritt v Merritt [1970] 1 WLR 1211 at 1213-1214.

Other family agreements [4.70] Similarly, while other kinds of family arrangements are not generally regarded as intended to give rise to enforceable rights and obligations, the circumstances may indicate that the parties intended to be legally bound: Smilevska v Smilevska (No 2) [2016] NSWSC 397 at [143], [151], [155]-[156]. The High Court has made clear that there is no presumption that family arrangements are not intended to be legally binding: Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 at [26]-[27]; Ashton v 1

For a criticism of this approach, see M Keyes and K Burns, “Contract and the Family: Whither Intention?” (2002) 26 Melbourne University Law Review 577.

chapter 4 Intention to Create Legal Relations

Pratt (2015) 88 NSWLR 281 at [73], [222]-[223]. In Evans v Secretary, Department of Families, Housing, Community Services and Indigenous Affairs (2012) 289 ALR 237 the Full Federal Court cautioned that the “courts must be careful not to convert informal situations that frequently arise in circumstances that involve love, friendship and concomitant human emotional feelings of duty or responsibility, into the stuff of daily community life”: at [16]. The courts are more inclined to find an intention to create legal relations where one of the parties has significantly changed their position in reliance on the agreement.

case [4.80] An 88-year-old widow persuaded her 64-year-old son and his family to migrate to Australia with her from the UK on the promise of buying a house here in the son’s name if they would take care of her during her lifetime. The son and his family gave up their rent-free council house in the UK and sold their possessions at a considerable loss. On arrival in Australia, the widow bought a house in her own name and ordered her son and his family to leave the house after only seven days following an argument. It was held that the agreement between the parties went beyond a mere family arrangement and was intended to have legal effect. It was further held that in the circumstances the widow was trustee of the house for the benefit of her son and was ordered to transfer it to him subject to her right to live in a “granny flat” attached to the house during her lifetime: Riches v Hogben [1986] 1 Qd R 315 at 317, 326, 329–330.

Agreements to participate in competitions and lotteries [4.90] While most social arrangements are regarded as too insubstantial to be intended to give rise to legal rights and obligations, agreements to participate in a competition or lottery have been held to be enforceable.

case [4.100] Where a lotto entry coupon lodged by one person on behalf of a three-member syndicate won a first prize of $218,000, the High Court held that in the circumstances there was an enforceable contract to share the winnings in the same proportion as the proportion of costs of the winning entry paid by each party. Hence, as the appellant had contributed 50 cents of the $2 winning entry, she was entitled to receive 25 per cent of the total prize-money: Trevey v Grubb (1982) 44 ALR 20 at 25.

Charitable activities [4.110] Participation in the activities of a charitable or other voluntary organisation will not normally give rise to contractual rights and obligations.

case [4.120] The respondent was injured while working as a volunteer at a camp for teenagers run by a non-profit Christian organisation. It was held that no contract of service existed between the respondent and the organisation since there was no indication that legal relations were contemplated

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by the parties. Accordingly, the respondent was not entitled to workers’ compensation: Teen Ranch Pty Ltd v Brown (1995) 87 IR 308 at 310-311. [4.130] On the other hand, in Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95, the High Court held that there was no presumption that an agreement as to remuneration between a person appointed an Archbishop of the Greek Orthodox Church in Australia and a cultural and ethnic community organisation was not intended to create legal relations. The majority doubted “the utility of using the language of presumptions in this context”: at [26]. The issue was to establish the existence of a legally binding contract between the parties, the onus of proving which was on the Archbishop: at [26]. It was held that the parties did intend to create legal relations. 2

Intention and commercial agreements [4.140] Where an agreement is reached in the course of business dealings, the courts will enforce the agreement unless it is apparent that the parties did not intend that their agreement should be legally binding. In Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 at 523 it was said that: The whole thrust of the law today is to attempt to give proper effect to commercial transactions. … If the statements are appropriately promissory in character, courts should enforce them when they are uttered in the course of business and there is no clear indication that they are not intended to be legally enforceable. See also Brice v Chambers [2014] QCA 310 at [140]. On the other hand: “A loosely formed shared idea, based wholly or partly on common expectations, mutual optimism and misplaced enthusiasm, to which greed and the hope of financial gain may be added in varying degrees, is not a contract”: Conway v Critchley [2012] NSWSC 1405 at [6].

case [4.145] A tour boat operator agreed to take the plaintiff to an island without charge if she took part in a television programme as an extra. She was seriously injured during filming. It was held that the agreement was not legally binding as it was a social agreement, “though there is an air of commerciality about it”: Price v Southern Cross Television (TNT9) Pty Ltd [2015] Aust Torts Reports 82-208; [2014] TASSC 70 at [62].

case [4.150] The plaintiff was injured at the defendant’s go-kart track. The defendants sought to rely upon an exemption clause contained in a form signed by the plaintiff. The plaintiff had not read the form. He thought that the form was for marketing purposes. The form was not signed by any representative of the defendant. On the night in question the track had been booked for a corporate promotion, which the plaintiff attended: at 662-663. The court held that the signature by one party only of a document presented by another party did not necessarily create a contract. To determine whether a contract had been created it was necessary to examine the circumstances in which the 2

See also, Courmadias N, “Intention to create legal relations: the end of presumptions?” (2006) 34 ABLR 175.

chapter 4 Intention to Create Legal Relations

document was given to that party: at 666. The plaintiff’s attendance at the track was not in pursuance of any obvious commercial relationship with the defendant: at 667. No indication was given to the plaintiff that he was signing a contract. The Court held that the form did not constitute a contract: Le Mans Grand Prix Circuits Pty Ltd v Iliadis [1998] 4 VR 661 at 668.

case [4.155] Following a mediation the parties entered into Heads of Agreement. The Agreement provided that “[w]ithout affecting the binding nature of these Heads of Agreement the parties within 7 days [are] to execute a formal document or documents as agreed between their respective solicitors to carry out and express in more formal terms and additional terms as these Heads of Agreement”: at [10]. The New South Wales Court of Appeal held that the Agreement was binding. The words “without affecting the binding nature” of the Agreement were “decisive” in establishing the intention to be bound: Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 at [23].

case [4.157] Under a contract for the supply of sugar cane the mill was not to be bound until it had reached agreements with a certain number of growers and had signed the agreement. A grower signed the execution page of the contract. It was held that the grower’s signature indicated an intention to be bound. Both parties were bound when the mill signed the agreement: Mackay Sugar Ltd v Quadrio [2015] QCA 41 at [20]-[21]. [4.160] Ordinarily, where a business or land is sold, a contract will not be created until a formal contract has been signed. However, in such a situation a contract can arise even without the signing of a formal contract if the parties intended to be immediately bound.

case [4.170] Following several months of negotiations, the parties signed a document regarding the sale of a hotel. This document set out the price, the contracting parties and the property to be sold. The vendor asked its solicitors to draft a formal contract. After another buyer made a better offer, the vendor argued that it was not bound by the document. It was held that the document constituted a binding contract. The document was expressed in formal and legalistic language and was not expressed to be subject to contract: at [21], [23]. The parties had intended that the document would conclude the negotiations between them: at [24]. The document included all essential terms, including “the parties, the property, the price and the promises”: Souter v Shyamba Pty Ltd (2002) 11 BPR 20,369 at [26].

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Express exclusion of intention [4.180] Where the agreement includes an express stipulation that it is not intended to give rise to legally enforceable obligations, the courts will give effect to such provision. Accordingly, such an agreement will not be enforceable at law.

case [4.190] An agreement contained a clause which stated: “This arrangement is not entered into … as a formal or legal agreement, and shall not be subject to legal jurisdiction in the Law Courts …, but it is only a definite expression and record of the purpose and intention of the three parties concerned, to which they each honourably pledge themselves, with the fullest confidence – based on past business with each other – that it will be carried through by each of the three parties with mutual loyalty and friendly co-operation”. It was held that the agreement was not a legally binding contract. It was clear from the clause that the agreement was intended to be binding in honour only and not intended to create legal obligations: Rose & Frank Co v JR Crompton & Bros Ltd [1925] AC 445 at 454. [4.200] It is common to insert in competition, lottery and pools forms a stipulation to the effect that entry into the competition is not intended to give rise to legally enforceable obligations. A provision of this kind was considered in Jones v Vernon’s Pools Ltd [1938] 2 All ER 626.

case [4.210] The plaintiff alleged that he had sent in a completed football coupon to the defendant pools company. It would have been a winning coupon but could not be traced by the defendant. When sued by the plaintiff, the defendant relied on the following clause included on its coupons: It is a basic condition of the sending in and acceptance of this coupon that it is intended and agreed that the conduct of the pools and everything done in connection therewith … shall not be attended by or give rise to any legal relationship, rights, duties or consequences whatsoever or be legally enforceable or the subject of litigation, but all such arrangements, agreements and transactions are binding in honour only. It was held that in view of this clause the agreement was not intended to give rise to a legally binding contract. Accordingly, the plaintiff had no enforceable claim against the defendant pools company: Jones v Vernon’s Pools Ltd [1938] 2 All ER 626 at 629-630.

Letters of comfort [4.220] A letter of comfort is usually written by a parent company to a lender giving “comfort” to the lender about a loan to be made by the lender to a subsidiary of the parent company. 3 Such a letter may be given in circumstances where, for example, the parent company is unwilling to accept the legal commitments of a guarantor to the lender for the loan to its subsidiary. A letter of comfort tends to be phrased in general terms and will typically include: 3

See generally M Seddon, “Banking and finance: Letters of Comfort” (1998) 26 Australian Business Law Review 309; J Lipton, “Good Faith and Letters of Comfort” (1999) 28 University of Western Australia Law Review 138; C Schultz, “Letters of Comfort: Gate Gourmet – Feast or Famine” [2004] Australian Mining and Petroleum Law Association Yearbook 546; L Thai, “Comfort letters – a fresh look?” (2006) 17 Journal of Banking and Finance Law and Practice 15.

chapter 4 Intention to Create Legal Relations

(a)

an acknowledgment that the parent company is aware of the proposed loan and approves of it;

(b)

a commitment to maintain its shareholding in the borrowing company so long as the loan is outstanding; and

(c)

some statement of support to the lender, couched in terms such as: “It is our policy to ensure that the business of [the borrowing company] is at all times in a position to meet its liabilities to you”.

Letters of comfort tend to be construed by the courts as merely statements of commercial intent and not legally enforceable contracts of security: Australian European Finance Corp Ltd v Sheahan (1993) 60 SASR 187 at 206; ATCO Controls Pty Ltd (In liq) v Newtronics Pty Ltd (In liq) (2009) 25 VR 411 at [54]; contrast Banque Brussels Lambert SA v Australian National Industries Ltd (1989) 21 NSWLR 502 at 525-526. In Norman v FEA Plantation Ltd (2011) 195 FCR 97, FEA wrote a “letter of commitment” which stated that it would provide FEAP with sufficient cash to meet its ongoing obligations: at [6]. As a holder of a financial services licence FEAP was subject to a “cash needs requirement”: at [14]. The Full Federal Court held that the letter bound FEA in view of its terms and the circumstances in which it was given: at [91]. The word “commitment” connoted obligation, especially when read in the regulatory context of the cash needs requirement: at [98].

Further reading See contract texts listed at the end of Chapter 2.

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Consideration, Promissory Estoppel and Formalities [5.20] Consideration ........................................................................................................................................................... 74 [5.230] Promissory or equitable estoppel .............................................................................................................. 79 [5.290] Formalities.............................................................................................................................................................. 82

Introduction [5.10] This chapter discusses three issues. First, the third essential element in the formation of a simple contract is that consideration (that is, some value or benefit) must be given or promised by one party in return for the other party's promise. The requirement for consideration does not apply where the contract is made under seal (that is, a deed). Secondly, some relief may be obtained from the strict rule that a promise is not enforceable unless some consideration has been given for it by the doctrine of promissory or equitable estoppel. Thirdly, some contracts will only be enforceable if certain formalities are complied with, such as statutory requirements that the contract be in writing.

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Consideration [5.20] The vast majority of contracts are simple contracts, that is, they are not made under seal: see [5.180]. These contracts are also referred to as “parol” or “informal” contracts. Simple contracts may be formed by verbal agreement, or may be implied from the conduct of the parties, or may be in writing or evidenced by some written memorandum. The important essential in all simple contracts is that valuable consideration must be present for their validity.

Meaning of consideration [5.30] Broadly speaking, the requirement of consideration means that a promise can only be legally enforced by the promisee (the person to whom the promise is made) if the promisee can show that they have given or promised to give something in return for the promise. Accordingly, a gratuitous promise, for example a promise to make a gift, is not enforceable because nothing of value has been given in return for it (although such a promise would be enforceable if made under seal, that is, by deed). In Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd [1915] AC 847 at 855, Lord Dunedin adopted the following definition of consideration: “An act or forbearance of one party, or the promise thereof, is the price for which the promise of the other is bought, and the promise thus given for value is enforceable.” In essence, consideration is the price paid by one party in exchange for the other party’s promise. It was described in the New South Wales Court of Appeal as follows: “By our law, consideration is an essential requirement for an enforceable contract. Without consideration, a promise is unenforceable at law. The modern theory of consideration has arisen from the notion that a contract is a bargain struck between the parties by an exchange. By that modern theory, consideration must be satisfied in the form of a price in return for the promisor’s promise or quid pro quo. The price can be in the form of an act, forbearance or promise”: Beaton v McDevitt (1987) 13 NSWLR 162 at 168 per Kirby P.

Essential rules regarding consideration [5.40] 1. Consideration is essential in every simple contract.

case [5.50] The government undertook to print and publish a book for the plaintiff, the plaintiff agreeing to pay all the costs but no advantage resulted to the government. It was held that it was a gratuitous undertaking on the part of the government, and hence unenforceable: Heaton v Richards (1881) 2 LR (NSW) 73 at 77. [5.60] 2. So long as consideration exists, the court is not concerned as to its adequacy, provided that it is of some value.

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case [5.70] To promote sales of their chocolate bars, the respondents offered to sell a record for 1s 6d plus three chocolate bar wrappers. The House of Lords held that the wrappers formed part of the consideration: the respondents’ offer was to supply a record, not just for the money, but for the wrappers as well. “It is said that when received the wrappers are of no value to [the respondents]. This I would have thought irrelevant. A contracting party can stipulate for what consideration he chooses. A peppercorn does not cease to be good consideration if it is established that the promisee does not like pepper and will throw away the corn”: Chappell & Co Ltd v Nestle Co Ltd [1960] AC 87 at 114 per Lord Somervell. [5.80] 3. The consideration must not be illegal or unlawful and must not involve a breach of the law or public policy. 4. The nature of the consideration must be definite. If the consideration is vague it will not be sufficient.

case [5.90] An agreement by a married woman, whereby she promised to attend upon her aged father and mother as long as they lived, and provide them with necessary services, and in consideration of which the father should transfer to her some of his land, was void for uncertainty since no particular land was indicated: Shiels v Drysdale (1880) 6 VLR 126 at 130. [5.100] 5. It should be executed or executory consideration and not past consideration. (Certain exceptions exist to the rule that past consideration will not support a simple contract: see [5.170].) 6. The consideration must be capable of performance. If the promise of one of the parties to the contract was an absolute physical impossibility, for example, to walk from Sydney to Perth in one day, there would not be a real consideration. 7. It must move from the promisee, that is to say, the party who wishes to enforce a contract must be able to show that they have furnished the consideration. “Consideration must move from the promisee …; it need not move to the promisor”: Pico Holdings Inc v Wave Vistas Pty Ltd (2005) 214 ALR 392 at [66]. 8. There is no consideration if all that the promisor does or promises to do amounts to no more than that which they are already obliged to do or refrain from doing: (a)

by law; or

(b)

under an existing contract with the promisee. In such a case the “new promise, indistinguishable from the old, is an illusory consideration”: Wigan v Edwards (1973) 47 ALJR 586 at 594.

case [5.110] An example of the first class of case arose in Collins v Godefroy (1831) 1 B & Ad 950; 109 ER 1040. A attended on subpoena to give evidence on B’s behalf in a case in which B was a litigant. A sued B to recover moneys which he alleged B had agreed to pay him in consideration of his giving evidence. It was held that as A was under a legal duty to give evidence because he had been subpoenaed, the giving of evidence was not consideration: at 956-957 (B & Ad); 1042 (ER).

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case [5.120] An example of the second class of case arose in Foakes v Beer (1884) 9 App Cas 605. The plaintiff had recovered a judgment against the defendant and the defendant asked for time to pay. It was then agreed that if the defendant would pay a certain sum at once and the balance by instalments the plaintiff would not take any proceedings on the judgment. The agreement was not entered into under seal: at 610-611. The defendant ultimately paid the whole amount of the judgment debt but the plaintiff sought to issue execution for the interest which a statute provided should accrue on the debt. It was held that the agreement to pay by instalments was not supported by consideration as the defendant had agreed only to do what he was already obliged to do (pay the judgment debt). The agreement was unenforceable and did not relieve the defendant from the obligation of paying interest: at 611, 623, 630. 1 [5.130] Where, however, the promisor agrees to do something more, albeit only a little more, or something different from what they are already obliged to do and the promisee agrees to accept that in discharge of the existing obligation, then there is sufficient consideration even though the substituted performance may not be as valuable as the original obligation. 9. Consideration may consist of a promise to refrain from taking legal action, provided that the person threatening such action has a bona fide belief in the claim and their prospects of success, and that the claim itself is a reasonable one. 10. Consideration may also consist of the bona fide compromise of a dispute arising from a claim honestly believed to be well founded: Wigan v Edwards (1973) 47 ALJR 586 at 594-595.

Executed, executory and past consideration [5.140] Consideration is said to be executed where one party performs an act in exchange for the other party’s promise. For example, A offers a $100 reward for the return of his lost wallet. B, on finding and returning the wallet, has performed her part of the bargain. It remains for A to fulfil his obligation by paying the reward. Consideration is said to be executory where one party has given a promise to do, or refrain from doing, something in exchange for the other party’s promise. For example, A agrees to sell B 1 tonne of coal on the basis that B is to pay for it on delivery. In this case both promises remain to be performed in the future and each provides consideration for the other.

Past consideration [5.150] Since “consideration” is defined as the price paid in exchange for a promise, past acts can never in law amount to consideration sufficient to support a subsequent contract. “Past consideration” is no more than the motive for a person making a present promise.

1

See D Thampapillai, “Practical benefits and promises to pay lesser sums: reconsidering the relationship between the rule in ‘Foakes v Beer’ and the rule in ‘Williams v Roffey’” (2015) 34 University of Queensland Law Journal 301.

chapter 5 Consideration, Promissory Estoppel and Formalities

case [5.160] G promised to give his overseer increased wages, not only for the future, but for a past period during which his wages had been at a previously agreed lower rate. It was held that the contract was unenforceable as to the past period for want of consideration. The promise to pay increased wages for past services was based on a past consideration: Anderson v Glass (1868) 5 WW & A’B (L) 152 at 153.

Exceptions [5.170] There are certain apparent exceptions to the rule that past consideration will not support a simple contract: 1.

Where the consideration amounts to some past act or forbearance that was done at the request of the person making the present promise. “An act done before the giving of a promise to make a payment or to confer some other benefit can sometimes be consideration for the promise. The act must have been done at the promisor’s request: the parties must have understood that the act was to be remunerated either by a payment or the conferment of some other benefit: and payment, or the conferment of a benefit, must have been legally enforceable had it been promised in advance”: Pao On v Lau Yiu Long [1980] AC 614 at 629 (PC). If B requested E to paint his house and after the painting B said: “As you have made a very good job of it I will pay you $750 for your trouble”, a valid contract would exist, as the subsequent promise of payment can be linked to the original request to do the work. B’s request is virtually an offer of a promise to pay a proper price for the job, and his subsequent promise would be evidence as to the value of the services rendered by E.

2.

The Bills of Exchange Act 1909 (Cth) provides that the consideration for a bill of exchange may be based on an antecedent debt or liability: s 32(1)(b).

3.

A subsequent promise to pay a past debt on which action is barred by the State Limitation Acts which limit the periods during which legal proceedings may be taken to enforce a right under a contract: see [12.410]-[12.420].

Contracts under seal [5.180] A contract under seal must be in writing and signed, sealed and delivered. 2 Contracts under seal obtain their binding force from their form alone. Every deed must now be signed 3 and attested by at least one witness who is not a party to the deed. The deed may be signed by an agent on behalf of party to the deed, though the agent’s authority to do so must derive from a deed: Lift Capital Partners Pty Ltd v Merrill Lynch International (2009) 73 NSWLR 404 at [37], [70]. It is not always essential that a seal be actually affixed, it being sufficient if the contract is expressed to be a deed: First National Securities Ltd v Jones [1978] Ch 109 at 118-119, 121. In Queensland and the Northern Territory delivery is defined as “the intention to be legally bound either immediately or subject to the fulfilment of a condition”. 4 Where an instrument was executed in the form of a deed, but the parties intended that it would not take effect until all parties were bound, there was no 2 3

4

See generally N Seddon, Seddon on Deeds (Federation Press, Sydney, 2015). Conveyancing Act 1919 (NSW), s 38(1); Property Law Act 1958 (Vic), s 73(1); Property Law Act 1974 (Qld), s 45(1); Property Law Act 1969 (WA), s 9(1); Conveyancing and Law of Property Act 1884 (Tas), s 63(1); Law of Property Act 1936 (SA), s 41(1); Civil Law (Property) Act 2006 (ACT), s 219(1); Law of Property Act 2000 (NT), s 47(1). Property Law Act 1974 (Qld), s 47(3); Law of Property Act 2000 (NT), s 49(3).

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intention to be bound immediately so the instrument had not been delivered: 400 George Street (Qld) Pty Ltd v BG International Ltd [2012] 2 Qd R 302 at [57], [68]–[69]. 5 The fact that a deed is undated does not affect its validity: Juric-Kacunic v Vaupotic (2013) 18 BPR 35131; [2013] NSWSC 41 at [49]–[51]. At common law a deed could only be discharged by another deed. However, a release by simple contract is enforceable in equity if it is supported by consideration: Energy Brix Australia Corporation Pty Ltd v National Logistics Coordinators (Morwell) Pty Ltd (2002) 5 VR 353 at [33].

Differences between contracts under seal and simple contracts [5.190] The basic differences between contracts under seal and simple contracts are: 1.

A gratuitous promise is binding if under seal but is not binding in the case of a simple contract.

2.

A party to a contract under seal is “estopped” (prevented from denying) the facts expressed in it.

3.

The period during which a right of action arising out of a contract under seal can be enforced is 15 years in Victoria and South Australia; and 12 years in New South Wales, Queensland, Tasmania, Western Australia and the Northern Territory. In the case of a simple contract the period is, in general, six years.

4.

The terms of a simple contract will merge in a deed, that is, if a simple contract is entered into and a deed is executed in substitution for it, then the simple contract comes to an end; however, this is so only where the parties are the same and the deed is in respect of the same matters as the simple contract.

Escrow [5.200] An escrow is a deed delivered subject to a condition and does not come into operation until the fulfilment of the condition. The deed may be retained by the person executing it or delivered to a solicitor to hold until the condition is fulfilled. For example, a vendor of land executes the conveyance to the purchaser and leaves it with his solicitor to be handed to the purchaser in return for the purchase money. Whilst held by the solicitor the deed is an escrow.

Indenture [5.210] An indenture is a deed to which there are two or more parties with different interests. The undertakings may be enforced only by the parties to the deed: Accordent Pty Ltd v Bresimark Nominees Pty Ltd (2008) 101 SASR 286 at [66]-[67].

Deed poll [5.220] A deed poll is a deed to which there are one or more parties with the same interests, a common use being to change a person’s name. The undertakings may be enforced by non-parties to the deed: Accordent Pty Ltd v Bresimark Nominees Pty Ltd (2008) 101 SASR 286 at [66]-[67].

5

See Allen R, “Deed I do … If Signed and Delivered: 400 George Street (Qld) Pty Limited v BG International Limited” (2013) 25 Bond Law Review 144.

chapter 5 Consideration, Promissory Estoppel and Formalities

Promissory or equitable estoppel The general nature of promissory estoppel [5.230] Some relief from the rule that a promise is not enforceable unless some consideration is given for it by the promisee (the person to whom the promise is made) may be obtained in limited circumstances by the doctrine of promissory or equitable estoppel. 6 The primary application of this doctrine has been where one party to a contract promises, or by words or conduct leads the other party to believe, that the promisor will not enforce their strict legal rights under the contract, and the other party acts on that representation and alters their position accordingly. The Privy Council described this doctrine in the following terms: “[W]hen one party to a contract in the absence of fresh consideration agrees not to enforce his rights an equity will be raised in favour of the other party. This equity is, however, subject to the qualification (a) that the other party has altered his position; (b) that the promisor can resile from his promise on giving reasonable notice, which need not be a formal notice, giving the promisee a reasonable opportunity of resuming his position; (c) the promise only becomes final and irrevocable if the promisee cannot resume his position”: Ajayi v Briscoe [1964] 1 WLR 1326 at 1330. It will be seen from the above passage that the doctrine of “promissory estoppel” does not necessarily prevent the promisor from reverting back to the strict legal position. Thus, where the contract is of a continuing nature, the promisor by giving due notice can resume the right which they have suspended and revert, for the future, to the original contract: Tool Metal Manufacturing Co Ltd v Tungsten Electric Co Ltd [1955] 1 WLR 761 at 764-765, 785, 799.

case [5.240] The defendant tenant leased a shop in the plaintiff landlord’s shopping centre. On the expiry of the first three-year lease for the shop in 1976 the tenant signed a new lease at a substantially increased rental. Some months later, the landlord orally agreed to a reduction of rent for an indefinite period. The tenant continued to pay the reduced rental for the next 18 months. The landlord then found that the tenant was about to vacate the premises and demanded the accumulated “arrears” of rent, that is, the difference between the rental stipulated in the lease and the amount the tenant had actually been paying in consequence of the landlord’s oral agreement to a rent reduction. The landlord brought an action to recover the alleged “arrears” of rent: at 107, 109. It was held by a majority of the court that the tenant had so altered his position, that is, had suffered a detriment, by continuing in possession at the reduced rental on the basis that the landlord’s promise would not be resiled from, that it would be inequitable to allow the landlord to go back on his promise. Accordingly, the landlord was estopped in the circumstances from claiming the alleged “arrears” of rent: Je Maintiendrai Pty Ltd v Quaglia (1980) 26 SASR 101 at 107, 115-116. [5.250] For the promisee to successfully rely on promissory or equitable estoppel, the promisee must be able to show that they have suffered some material detriment, that is, that they have altered their position in reliance on the statement or representation, and in consequence it would be unjust to permit the promisor to resile from the statement or representation: Chin v Miller (1981) 37 ALR 171 at 172, 181, 188. Thus, in a case where the lessor of land had accepted rent without question for 12 months at a lower rate 6

See J Goldberger, “Estoppel and contract” (2015) 29(3) Commercial Law Quarterly 16.

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than that strictly payable, but then demanded that the arrears as well as future rent be paid in accordance with the strict terms of the agreement, the lessee’s argument against such payment based on promissory estoppel was rejected on the ground that there had been no alteration in the lessee’s position and that there was no injustice merely in the lessee being required to pay the rental arrears: Gollin & Co Ltd v Consolidated Fertilizer Sales Pty Ltd [1982] Qd R 435 at 451-452. It has been held that an interest in land may arise by an equitable estoppel where a party has acted to their detriment in consequence of an expectation created or encouraged by another that the interest in the land will be granted: Riches v Hogben [1986] 1 Qd R 315 at 342.

The High Court's decision in Waltons Stores [5.260] The effect of the High Court’s decision in Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 is that the doctrine of promissory or equitable estoppel enables a promisee, in appropriate circumstances, to enforce a promise or representation on which the promisee had relied to their detriment, even where such promise or representation relates to a non-contractual right, that is, notwithstanding the absence of a pre-existing contractual relationship between the parties.

case [5.270] Waltons Stores negotiated with Maher for the lease of commercial premises. Under the proposal, Maher was to demolish an existing structure on the site and erect a new building to be leased by Waltons. After discussions between the solicitors for both parties, the necessary documents were drawn up. Certain amendments were proposed by Maher’s solicitors. Waltons’ solicitors said they believed approval for the amendments would be forthcoming from their client, adding: “We shall let you know tomorrow if any amendments are not agreed to”. Some days later Maher’s solicitors, having heard nothing about the amendments, submitted “by way of exchange” documents executed by their client for signature by Waltons. Receipt of these documents was not acknowledged for nearly two months as Waltons were privately reconsidering their position in view of impending policy changes to their future trading operations. Meanwhile, Maher sought finance for redevelopment of the site, and proceeded to demolish the existing building which Waltons became aware of shortly afterwards. Erection of the new building was begun to ensure completion by the required date. When the building was 40 per cent completed, Maher was advised that Waltons did not intend to proceed with the transaction. No binding contract to lease the premises had been concluded between the parties as there had been no exchange of documents: at 393-395. The High Court held that Maher had assumed that exchange of contracts would take place as a mere formality: at 395. The inaction of Waltons in retaining the executed documents and doing nothing constituted clear encouragement or inducement to Maher to continue to act on the assumption that the lease was proceeding. It was unconscionable for Waltons, knowing that Maher was exposing himself to detriment by acting on the basis of a false assumption, to adopt such a course of inaction that had encouraged Maher to proceed: at 407-408. “To express the point in the language of promissory estoppel, [Waltons] is estopped in all the circumstances from retreating from its implied promise to complete the contract”: Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387 at 408 per Mason CJ and Wilson J. [5.280] Following the Waltons Stores (Interstate) Ltd v Maher (1988) 164 CLR 387, the basis for the application of promissory or equitable estoppel would appear to be the prevention of unconscionable (that

chapter 5 Consideration, Promissory Estoppel and Formalities

is, unfair or unjust) conduct on the part of the person making the promise so as to avoid the loss or detriment that would otherwise be suffered by the person to whom the promise is made. A bare promise followed by reliance on such promise to their detriment by the promisee will not be sufficient to result in the promise being enforceable in the absence of consideration. There must be something more, namely, the creation or encouragement by the promisor of an assumption by the promisee that a contract would come into existence or a promise would be performed. See further, Commonwealth v Verwayen (1990) 170 CLR 394 at 413, 444, 500; Giumelli v Giumelli (1999) 196 CLR 101 at [6]. “It is not the breach of promise, but the promisor’s responsibility for the detrimental reliance by the promisee, which makes it unconscionable for the promisor to resile from his or her promise”: Sidhu v Van Dyke (2014) 251 CLR 505 at [58] per French CJ, Kiefel, Bell and Keane JJ.

case [5.285] Crown leased space in its casino to two restaurants. The parties negotiated a new lease. The term was five years. The lease required the tenants to undertake major refurbishments of the restaurants. The tenants were concerned that they might not recoup the cost of the refurbishments within five years. They sought the inclusion of a right to renew the lease for a further five years. Crown was unwilling to agree to such term. During the negotiations, a representative of Crown assured the tenants that they would be “looked after at renewal time”. The tenants entered into the lease and undertook the major refurbishments. Towards the end of the term of the new lease Crown refused to renew the lease: at [4]–[9], [13]. The court held that Crown was not estopped from refusing to renew the lease. French CJ, Kiefel and Bell JJ pointed out that a representation must be clear to be able to found a promissory estoppel. The representation must be able to be understood by a reasonable person in the way in which the party claims that they were misled. Here the representation by Crown would not have been understood by a reasonable person to mean that Crown would offer to renew the lease: at [35]. Furthermore, it had not been shown that the tenants had relied upon the representation to their detriment: at [39]. At first instance it had been found that the representation led the tenants to expect that they would be offered a new lease on terms to be determined by Crown. By contrast, the tenants had argued that they had been led to expect that there would be a renewal of the lease on the same terms as the previous lease. The tenants thus had not relied upon the representation made by Crown: at [40]. Keane J held that a representation must be “clear” and “unambiguous” in order to found an promissory estoppel: at [142]. A representation founding a promissory estoppel must be sufficiently certain to have supported a contractual variation: at [147]. Crown could set any terms of its choice in offering a new lease: at [155]. While the tenants had argued that the terms were to be the same as the previous lease, it was clear that Crown had refused to agree to such a commitment: at [156]. Nettle J considered that a representation which would support a promissory estoppel did not need to reach the level of certainty required to support a contract: at [211]. However, the tenants had not argued that they had acted in accordance with a “more limited” assumption and had not sought an alternative form of relief: at [226]–[227]. Gageler and Gordon JJ found it unnecessary to consider the question of estoppel: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 at [46], [271].

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Formalities [5.290] Many contracts, particularly those of a minor nature, are made by word of mouth and do not need to be in writing. Where the contract is of importance it is generally considered prudent to reduce its terms to writing. This provides valuable evidence of the terms of the agreement in the event of dispute. Accordingly, in practice many oral contracts are confirmed in writing as soon as possible after they are made. The common law does not require a simple contract to be in writing nor that written evidence of the details of the contract exist in order for the contract to be enforceable. However, in some cases various statutes require that in order for a contract to be enforceable it must be in writing. In other cases, there are statutory provisions to the effect that in order for a contract to be enforceable some written evidence of it must exist, that is, it must be evidenced in writing.

Contracts required to be in writing [5.300] Certain kinds of simple contracts are required by various statutes to be entirely in writing, otherwise they will be void or unenforceable. Examples are as follows: 1.

Bills of exchange and promissory notes: Bills of Exchange Act 1909 (Cth), ss 8(1), 89(1).

2.

Cheques: Cheques Act 1986 (Cth), s 10.

3.

Assignments of copyright: Copyright Act 1968 (Cth), s 196(3).

4.

Contracts of marine insurance: Marine Insurance Act 1909 (Cth), s 28.

5.

Assignments of life insurance policies: Life Insurance Act 1995 (Cth), s 200(2)(a).

6.

An acknowledgment of a debt barred by the State Limitation Acts: see Chapter 12.

7.

Most forms of consumer credit contract: see Chapter 19.

Contracts to be evidenced in writing [5.310] The principal legislative provisions requiring contracts to be evidenced in writing are contained in the Statute of Frauds 1677 (IMP) or the local re-enactment of some of its provisions.

The Statute of Frauds 1677 [5.320] The Statute of Frauds 1677 (IMP), a United Kingdom statute, was received in Australia on settlement. Section 4 of the Statute provides that no action shall be brought in certain cases unless the agreement or some memorandum of it is in writing signed by the party to be charged or by some person authorised by that party to contract on their behalf. The Statute has been repealed in its application to most Australian States and Territories but a number of its provisions have been re-enacted by State legislation in similar terms. 7 The main types of contract required to be evidenced by a written memorandum by s 4 of the Statute or local re-enactment of its provisions are: (a) contracts dealing with an interest in land; and (b) contracts of guarantee. 7

The Statute no longer applies in the following States and Territories: Imperial Acts Application Act 1969 (NSW), s 8(1); Statute of Frauds 1972 (Qld), s 3(1); Statutes Amendment (Enforcement of Contracts) Act 1982 (SA), s 3; Imperial Acts (Substituted Provisions) Act 1986 (ACT), s 3(1), relocated by Law Reform (Miscellaneous Provisions) Act 1999 (ACT), Sch 3 and relocation repealed by Civil Law (Property) Act 2006 (ACT), s 507; Law of Property Act 2000 (NT), s 221 & Sch 4. In Victoria the Statute of Frauds 1677 (IMP), s 4 was replaced by local enactment in the same terms by the Instruments Act 1958 (Vic), s 126, but the latter section only applies, in effect, to guarantees and contracts for the sale of land since the commencement of the Sale of Goods (Vienna Convention) Act 1987 (Vic), s 8. In Tasmania, the Statute of Frauds 1677 (IMP), s 4 has been replaced by a local enactment in the same terms: Mercantile Law Act 1935 (Tas), s 6. The

chapter 5 Consideration, Promissory Estoppel and Formalities

(a) Contracts dealing with an interest in land [5.330] A contract for the sale or other disposition of land or any interest in land is required to be evidenced in writing. This part of s 4 of the Statute of Frauds 1677 (IMP) has been replaced in most States and Territories by local enactments in substantially similar terms. 8 Agreements to buy, sell or lease land fall within the provision, and a contract to assign a lease has been held to be an interest in land and therefore required to be evidenced in writing. Case law provides examples of what constitutes a sale or other disposition of land or any interest in land. The New South Wales Court of Appeal held that a contract for the declaration of a trust over land was a disposition of an interest in land: Khoury v Khouri (2006) 66 NSWLR 241 at [3], [15], [47]. An option for the sale of land also falls within the provision: Todrell Pty Ltd v Finch (No 1) [2008] 1 Qd R 540 at [86]. A profit à prendre gives a right to remove something from the land of another person. In Duff v Blinco (No 2) [2007] 1 Qd R 407, the profit à prendre gave a right to take timber from the plaintiff’s land. The Queensland Court of Appeal held that a profit à prendre was not a contract for the sale or other disposition of land, so it did not fall under the writing requirement of this section of the Statute: at [32], [34].

(b) Contracts of guarantee [5.340] A further important category of contract covered by the Statute of Frauds 1677 (IMP) was a “promise to answer for the debt, default or miscarriage of another person”. This expression has been held to cover a contract of guarantee or suretyship: Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 at [61]-[63]. It does not apply to a contract of indemnity. The provision does not apply in New South Wales, South Australia, or the Australian Capital Territory. 9 It is important to notice the difference between a guarantee and an indemnity. A guarantee may be defined as a promise made by one person (the guarantor or surety) to another (the creditor) that should a third person (the principal debtor) fail to carry out an engagement made with the creditor, the guarantor will be answerable for the carrying out of such engagement. An indemnity is a contract for the purpose of insuring the party indemnified against loss. A guarantee must be evidenced in writing, whereas an indemnity need not: see Chapter 20. 10

8

9

10

Statute of Frauds 1677 (IMP), s 4 still applies in Western Australia but is limited, in effect, to guarantees and contracts for the sale of land: Law Reform (Statute of Frauds) Act 1962 (WA), s 2. See W Wen, “Contractual Damages and Post-Sidhu Proprietary Estoppel: A Further Blow to the Statute of Frauds?” (2015) 5 Property Law Review 32. Conveyancing Act 1919 (NSW), s 54A(1); Instruments Act 1958 (Vic), s 126(1); Property Law Act 1974 (Qld), s 59; Law of Property Act 1936 (SA), s 26(1); Mercantile Law Act 1935 (Tas), s 6 and Conveyancing and Law of Property Act 1884 (Tas), s 36(1); Law of Property Act 2000 (NT), s 62; Civil Law (Property) Act 2006 (ACT), s 204(1). In Western Australia the Statute of Frauds 1677 (IMP), s 4 still applies but is limited, in effect, to guarantees and contracts for the sale of land (Law Reform (Statute of Frauds) Act 1962 (WA), s 2). The Property Law Act 1969 (WA), s 34(1) also contains a provision to similar effect. Imperial Acts Application Act 1969 (NSW), s 8(1); Statutes Amendment (Enforcement of Contracts) Act 1982 (SA), s 3; Imperial Acts (Substituted Provisions) Act 1986 (ACT), s 3(1), relocated by Law Reform (Miscellaneous Provisions) Act 1999 (ACT), Sch 3 and relocation repealed by Civil Law (Property) Act 2006 (ACT), s 507 and Sch 3. In Queensland and the Northern Territory guarantees must be evidenced in writing: Property Law Act 1974 (Qld), s 56; Law of Property Act 2000 (NT), s 58. The Statute of Frauds 1677 (IMP) also applied to: agreements made in consideration of marriage; agreements not to be performed within one year from their making; and agreements involving a special promise by an executor or administrator to satisfy the liability of a deceased person out of their own money. However, such categories of contract are now only affected in Tasmania (Mercantile Law Act 1935 (Tas), s 6). The Statute also applied to contracts for the sale of goods valued at $20 or more: this now only affects contracts in Western Australia (Sale of Goods Act 1895 (WA), s 4(1) and Tasmania (Sale of Goods Act 1896 (Tas), s 9(1)).

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The memorandum required [5.350] Attention must be paid to the following matters that must be covered by the memorandum: 1.

The names of the parties must be specified.

2.

The subject matter must be stated.

3.

The consideration must be apparent (except in guarantees).

4.

The memorandum must be signed by the party to be charged or by some person authorised by them to contract on their behalf.

The memorandum is not the agreement; it is merely evidence of the agreement. To be efficacious the memorandum must contain all the express terms of the agreement.

Effect of non-compliance: the doctrine of part performance [5.360] A contract that is not evidenced in writing as required by the Statute of Frauds 1677 (IMP) is unenforceable at common law. However, equity will enforce such a contract provided that the claimant for relief has partly performed the contract. The basis of the equitable doctrine is that it would be unconscionable to allow a defendant to set up the Statute to deny relief to a claimant who has performed either the whole or part of her or his obligations by reliance on the contract. The application of the doctrine of part performance has, in practice, generally been confined to contracts for the sale or other disposition of an interest in land.

case [5.370] The deceased had orally agreed with the defendant that he would build a house for her and her family if she would take care of him as part of her family for the rest of his life. After the house was built the defendant and her family moved in with the deceased who was looked after by the defendant for some 23 years before he died. The deceased’s administrator brought an action to recover possession of the house from the defendant for the benefit of the deceased’s estate. It was held that the contract indicated by the defendant’s acts of performance was one in which, in consideration of her making her home with the deceased and caring for him for the remainder of his life, the deceased had agreed to transfer the title of the property to her: at 200. Accordingly, the court granted a decree of specific performance of the agreement and a declaration that the defendant was the beneficial owner of the property: Riley v Osborne [1986] VR 193 at 201; see similarly, Butler v Craine [1986] VR 274 at 281-283.

case [5.380] In a further example, the plaintiffs went into possession of a dwelling-house paying rent and effecting substantial repairs to the house on the oral promise (corroborated by the owner’s will) that they could live in the house for the rest of their lives: at 360. An oral grant of a tenancy for life could not take effect at common law because of the absence of writing: at 361. However, it was held that the promise should be construed in equity as an agreement for a lease and there were sufficient acts of part performance unequivocally referable to that agreement. Accordingly, the court ordered specific performance of the agreement for the lease of the house for the joint lives of the plaintiffs: Watson v Delaney (1991) 22 NSWLR 358 at 363, 366.

chapter 5 Consideration, Promissory Estoppel and Formalities

[5.390] A claimant must establish that the acts of part performance relied on are referable to the contract in the sense that the parties’ conduct must be inexplicable except on the assumption that some such contract as that alleged has been made: Regent v Millett (1976) 133 CLR 679 at 683. In that case Gibbs J said (at 684): “It is clear that if a vendor permits a purchaser to take possession to which a contract of sale entitles him, the giving and taking of that possession will amount to part performance notwithstanding that under the contract the purchaser was entitled rather than bound to take possession.” The payment of money on its own will not usually be regarded as a sufficiently unequivocal act since it may also be consistent with either no, or some other kind of, agreement between the parties.

Further reading See contract texts listed at the end of Chapter 2.

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chapter 6

Contractual Capacity [6.20] Minors .......................................................................................................................................................................... 88 [6.150] Contractual capacity of minors in New South Wales..................................................................... 91 [6.160] Special provisions as to minors in South Australia.......................................................................... 92 [6.170] Corporations .......................................................................................................................................................... 93 [6.180] Mentally incapacitated and intoxicated persons ............................................................................... 93 [6.190] Married women.................................................................................................................................................... 94 [6.200] Bankrupts................................................................................................................................................................ 94

Introduction [6.10] Not all persons can enter into a valid contract. Certain classes of persons are regarded by law as incapable, either wholly or partly, of entering into contractual obligations. 1 The capacity of the following persons to enter into valid contracts will be discussed:

1

1.

Minors.

2.

Corporations.

3.

Mentally incapacitated and intoxicated persons.

4.

Married women.

5.

Bankrupts.

See generally E Bant, “Incapacity, Non Est Factum and Unjust Enrichment” (2009) 33 Melbourne University Law Review 368.

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Minors [6.20] Formerly, a minor 2 was a person who had not reached the age of 21 years. However, in all States and Territories the age of majority has been reduced to 18 years. 3 In New South Wales and South Australia the legal position of minors differs markedly from that in the other States. The position in these States will be considered separately at the end of this section. With the exception of New South Wales, contracts with minors may be considered under three headings depending on their legal effect. Such contracts may be: (a)

valid;

(b)

voidable; or

(c)

void.

Valid contracts [6.30] Two classes of contracts with minors are binding, namely: (a)

a contract for the supply of “necessaries”; and

(b)

a beneficial contract of service, such as a contract of apprenticeship.

A minor is liable under a contract for “necessaries” [6.40] The word “necessaries” is not confined to articles necessary for the maintenance of life but includes goods and services fit to maintain the person in question at the standard of living and in the position in life which he or she enjoys. So far as goods are concerned, necessaries have been defined as “goods suitable to the condition in life of such minor and … to his actual requirements at the time of the sale and delivery”. 4 In any given case there are two questions involved: (a)

are the goods or services within the classes of goods which can be classed as “necessaries” for a person in the circumstances of the minor in question?; and

(b)

were the goods or services in fact necessary to the minor at the time?

It follows that no hard and fast rules can be laid down as to what a minor will be made liable to pay for, as the position must vary in every case. Thus, in Scarborough v Sturzaker (1905) 1 Tas LR 117, it was held that a minor who was accustomed to cycle a distance of some 12 miles to his daily employment was liable to pay for a new bicycle: at 117–118. By contrast, in Bojczuk v Gregorcewicz [1961] SASR 128, a minor who lived in Poland and had a permanent job there, but who wished to emigrate to Australia, was held not to be liable to repay to a relative, who had paid for her passage to Australia, the cost of the passage: at 132–134. 2 3

4

The earlier cases and legislation used the expression “infant” when referring to a person below the age of majority. However, the modern legislative trend is to use the more appropriate term “minor”. Minors (Property and Contracts) Act 1970 (NSW), s 6(1); Age of Majority Act 1977 (Vic), s 3(1); Law Reform Act 1995 (Qld), s 17; Age of Majority (Reduction) Act 1971 (SA), s 3(1); Age of Majority Act 1972 (WA), s 5(1); Age of Majority Act 1973 (Tas), s 3(1); Age of Majority Act 1974 (ACT), s 5; Age of Majority Act 1974 (NT), s 4. Goods Act 1958 (Vic), s 7; Sale of Goods Act 1896 (Qld), s 5(3); Sale of Goods Act 1895 (SA), s 2(2); Sale of Goods Act 1895 (WA), s 2(2); Sale of Goods Act 1896 (Tas), s 7(2); Sale of Goods Act 1954 (ACT), s 7(3); Sale of Goods Act 1972 (NT), s 7(3). In New South Wales the position is now governed by the Minors (Property and Contracts) Act 1970 (NSW) which is discussed separately at the end of this section.

chapter 6 Contractual Capacity

If the court finds that the goods or services are not within the classes of necessaries, or were not in fact necessary, then the minor is not liable to pay nor, unless he or she obtained them by fraud, to return the goods. Even where the goods are found to be necessaries, the minor is not bound to pay the contract price but only a reasonable price.

A minor is liable under a beneficial contract of service [6.50] This particularly applies to agreements relating to services to provide the minor with a means of livelihood, apprenticeship contracts or contracts relating to education. In deciding whether the contract is for the minor’s benefit, the agreement must be taken as a whole and any restrictions placed on the minor at the present time and in the future closely considered.

case [6.60] While still a minor, the defendant had entered into articles of clerkship with the plaintiff. The articles contained a covenant by the defendant that he would not practise as a solicitor within 50 miles of Toowoomba where the plaintiff carried on his practice. Within a year of qualifying, the defendant started to practise in Toowoomba. The plaintiff sued for an injunction to restrain the defendant from so practising. The defendant pleaded his infancy at the time of entering into the articles as a defence. The High Court unanimously held that the covenant was enforceable against the defendant. Although the contract contained clauses that were prejudicial to him, the contract as a whole was beneficial and therefore enforceable: Hamilton v Lethbridge (1912) 14 CLR 236 at 255, 266. [6.70] In contrast, if the contract is substantially detrimental to the interests of the minor, it will not be enforced against her or him.

case [6.80] A girl aged 14 years entered into a seven-year apprenticeship with the plaintiff to be taught stage dancing. She agreed that she would not marry during the apprenticeship and would not accept professional engagements without the plaintiff’s permission. The plaintiff did not bind himself to provide her with engagements nor was he obliged to maintain her while she was not working. The pay he agreed to give in the event of her employment was less than generous. The plaintiff was entitled at his own discretion to terminate the contract if, after a fair trial, he decided that she was unfit for stage dancing: at 440-442. It was held that the terms of the apprenticeship deed were unreasonable and unenforceable: De Francesco v Barnum (1890) 45 Ch D 430 at 443. [6.90] The question of whether the contract is beneficial to the minor is the crucial issue in determining the validity of this type of contract. On the other hand, this does not mean that any contract which benefits the minor will be enforced against her or him. Thus, it is well-established that a trading contract is not binding on a minor, notwithstanding that it may be financially beneficial. For example, a minor who carried on business as a haulage contractor agreed to purchase a lorry under a hire-purchase agreement. When he was sued for arrears under the agreement, it was held that the contract was a trading contract by which the minor could not be bound: Mercantile Union Guarantee Corp Ltd v Ball [1937] 2 KB 498 at 502-503; see similarly, Cowern v Nield [1912] 2 KB 419 at 424.

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Voidable contracts [6.100] The contracts voidable by a minor are either:

Those binding unless repudiated by the minor during their minority or within a reasonable time after attaining their majority [6.110] This applies to contracts which are of a permanent nature – those which involve a continuing obligation, for example: (a)

shares in a company;

(b)

leases;

(c)

partnerships; or

(d)

marriage settlements.

A minor is bound by such contracts unless he or she takes steps to repudiate them within a reasonable time after attaining majority. If the minor has received no benefit under the contract he or she may repudiate it and also secure a return of any money paid on the contract. If, however, the minor had the benefit or the use of goods, he or she, while able to renounce the contract, cannot obtain a refund of the money paid for them: Pearce v Brain [1929] 2 KB 310 at 314-315. In other words, rescission avoids future liability only.

Those not binding unless ratified within a reasonable time after attaining the age of majority [6.120] These are contracts which are not of a continuing nature, for example the purchase of goods which are not necessaries. These contracts require the express ratification of the minor after coming of age to make them binding. In Victoria these contracts, that is those not binding unless ratified within a reasonable time after attaining the age of majority, are not effective, as in that State legislation makes such contracts absolutely void and incapable of ratification by the minor after attaining majority. 5

Void contracts [6.130] In Victoria all contracts whether simple or made under a deed are void: (a)

for the repayment of money lent or to be lent;

(b)

for the payment of goods supplied or to be supplied (other than contracts for necessaries); or

(c)

all accounts stated (that is, an account acknowledged by the parties to be correct): Supreme Court Act 1986 (Vic), s 49.

In all States a minor is not liable on a bill of exchange (or cheque) even if given for the price of necessaries: Re Soltykoff; Ex parte Margrett [1891] 1 QB 413 at 415-416. A minor cannot give a valid security to repay advances even if made to enable her or him to purchase necessaries: Martin v Gale (1876) 4 Ch D 428 at 431. In Victoria a contract made by a minor, after he or she comes of age, to repay a loan contracted during minority is void. 6 5

Supreme Court Act 1986 (Vic), s 49.

6

Supreme Court Act 1986 (Vic), s 51.

chapter 6 Contractual Capacity

Misrepresentation by minors [6.140] Minors are not liable for a tort 7 directly connected with any contract upon which no action will lie against them. It is impossible indirectly to enforce such a contract by changing the form of action to one in tort. Thus an action for deceit does not lie against minors who, by falsely representing themselves to be of full age, have fraudulently induced another to contract with them, since to enable a plaintiff to convert a breach of contract into a tort would destroy the protection that the law affords to minors: R Leslie Ltd v Sheill [1914] 3 KB 607 at 611-612, 620, 625. 8

Contractual capacity of minors in New South Wales [6.150] The New South Wales Minors (Property and Contracts) Act 1970 (NSW) contains extensive provision regulating the contractual capacity of minors, that is, those under 18 years of age. The liability of minors is based on their participation in a civil act: s 16. The legislation defines civil act as including a contract; an election to rescind or determine a contract for fraud, mistake or breach; a disposition of property; an assent to or waiver of any matter affecting their rights or obligations under a contract or relating to property; and any other act relating to contractual or proprietary rights or obligations: s 6(1). The Act provides that, where a minor participates in a civil act and that participation is for their benefit, the civil act is “presumptively binding” on the minor: s 19. The expression “presumptively binding” means that the civil act is as binding on the minor as if he or she was not a minor at the time of their participation: s 6(3). The Act also makes certain transactions presumptively binding on a minor even though they may not necessarily be for her or his benefit. For example, where a minor makes a disposition of property for a consideration which is not manifestly inadequate and he or she received the whole or any part of the consideration, the disposition is presumptively binding on the minor: s 20(1). Similarly, the disposition of property by the minor either wholly or partly as a gift where the disposition was reasonable at the time it was made is another example of a civil act made presumptively binding on a minor: s 21. However, a minor will not be presumptively bound by a civil act where he or she lacks, by reason of youth, the understanding necessary for participation in such act: s 18. On application by a minor the Supreme Court may make an order granting the minor capacity to participate in any civil act where the court considers this would be for the minor’s benefit: s 26(1), (3). Where the minor participates in a civil act authorised by such order it will become presumptively binding on the minor: s 26(4). Should a contract or disposition of property proposed to be made by a minor involve less than $10,000, the Local Court may approve such contract where the court considers this would be for the minor’s benefit: s 27(2), (5). The contract would then be presumptively binding on the minor: s 27(1). Furthermore, a contract involving, for example, a disposition of property by a minor, will be presumptively binding on her or him, without recourse to the courts, provided that a solicitor (who must be instructed and employed independently of any other party to the disposition) or the NSW Trustee or Guardian issues a certificate not more than seven days before the making of the disposition, stating that he or she is satisfied that the minor understands the true purport and effect of the disposition, makes the 7 8

A tort is a civil wrong, committed by one person against another, consisting in the infringement of a right created independent of contract, giving the injured party a right to claim damages or compensation: see Chapter 28. This is no longer the position in New South Wales: see Minors (Property and Contracts) Act 1970 (NSW), s 48.

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disposition freely and voluntarily, and that an independent valuer or financial adviser has given written advice that the consideration is not manifestly inadequate: s 28. Where a civil act, for example a contract entered into by a minor, is not presumptively binding on the minor, it may be affirmed on their behalf by a court whilst the minor remains a minor: s 30(1). Application for affirmation by the court may be made not only by the minor but by any person interested in the contract although the court must not affirm a civil act unless it considers that the affirmation would be for the minor’s benefit: s 30(2) – (3). A minor may personally affirm a civil act, not otherwise presumptively binding, after he or she attains the age of 18 years: s 30(1)(b). The effect of affirmation is to make the civil act presumptively binding on the minor: s 30(4). A civil act may be repudiated by a minor at any time during minority or before he or she attains the age of 19 years: s 31(1). To be effective the repudiation must be in writing, signed by the person making it or their agent, and served on the person affected by the repudiation: s 33(2). The court also has power to repudiate a civil act on behalf of a minor at any time during minority: s 34(1). However, in all cases a purported repudiation is of no effect if it appears that at the time of repudiation the civil act is for the benefit of the minor: ss 31(2), 34(2). Furthermore, repudiation is, in essence, only effective in the case of contracts not presumptively binding on the minor. Where a contract or other civil act is not repudiated in accordance with the provisions just outlined, it is presumptively binding on the minor. On repudiation of a contract or other civil act in accordance with the provisions of the Act, the court is given very wide powers on the application of any person interested in the contract to make orders either confirming the contract wholly or in part or anything done under it, or for the adjustment of rights arising out of the contract or its repudiation or anything done under it: s 37(1). The court may also confirm any contract and anything done under it where the contract or other civil act has been induced by a fraudulent misrepresentation by the minor as to her or his age or other matter affecting their capacity to contract: s 37(2). The Act expressly abolishes the common law rule that a minor cannot be made liable in tort where the tort arises out of a contractual duty: s 48. The guarantor of an obligation of a minor is bound by the guarantee to the extent to which the guarantor would be bound had the minor been an adult at the time he or she entered into the transaction being guaranteed: s 47; 9 see Chapter 20.

Special provisions as to minors in South Australia [6.160] In South Australia the Minors Contracts (Miscellaneous Provisions) Act 1979 (SA) provides that where a contract is unenforceable against a person because he or she was a minor at the time of entering into it, such contract remains unenforceable against the minor unless he or she ratifies it in writing on or after the day on which he or she attains majority: s 4. The effect of the provision is to abrogate the distinction between those contracts binding on a minor unless repudiated within a reasonable time after majority and those not binding unless ratified within a reasonable time after majority: see [6.110] and [6.120]. Ratification after majority is now required in both cases for the contract to be enforceable. The provision does not affect those contracts already binding on a minor, that is, contracts for the supply of “necessaries”, and beneficial contracts of service: see [6.40]. The guarantor of a minor’s contractual obligations is bound by the guarantee to the same extent to which the guarantor would be bound had the minor been of full age at the time of entering into the contract 9

In Tasmania, the Minors Contracts Act 1988 (Tas), s 4 makes similar provision for the liability of a guarantor of a minor’s contract.

chapter 6 Contractual Capacity

being guaranteed: s 5. Provision is also made for the terms of a proposed contract to be approved by the court and where such approval is given, the contract is to have the same effect as if the minor had attained majority before entering into it: s 6. Application to the court for the requisite approval may be made by the minor, her or his parent or guardian, or any other party to the proposed contract. The court is also empowered to appoint a person to transact any specified business or to execute any documents on behalf of a minor on application being made to the court by the minor or her or his parent or guardian. Liabilities incurred by the agent so appointed are enforceable against the minor: s 8. Where a person has avoided a contract on the ground of their minority and before avoidance property passed to another contracting party, a court may order restitution of the property to the minor, notwithstanding that the minor received some benefit under the contract or another party has partly performed their obligations under the contract: s 7. This provision modifies the common law principle whereby a minor who avoids a contract on the ground of their minority cannot recover any money or other property the minor previously transferred where they received some benefit under the contract.

Corporations [6.170] A corporation must contract by means of an agent. Their powers to contract are either limited by reason of the instrument creating them or limited by the very nature of their artificial existence (for example, a corporation could not make a contract to sing at a concert). The Corporations Act 2001 (Cth) provides that, where a company exercises a power contrary to an express restriction or prohibition in its constitution, or does an act which is not within the objects of the company as set out in its constitution, the exercise of such a power or doing of such an act is not invalid: s 125. In general a company has the legal capacity of a natural person: s 124. A company’s power to make, vary, ratify or discharge a contract may be exercised by an individual acting with the company’s express or implied authority and on behalf of the company. The power may be exercised without using the company seal: s 126.

Mentally incapacitated and intoxicated persons [6.180] Mentally incapacitated and intoxicated persons may be made liable under contracts for the provision of necessaries. However, all other contracts entered into by them will be voidable provided: (a)

they were incapable of understanding the nature of what they were agreeing to at the time they contracted; and

(b)

the other party was aware, or should have been aware, of their incapacity.

Accordingly, a person of unsound mind will not be able to avoid a contract where the other party was unaware of their mental incapacity: Hart v O’Connor [1985] AC 1000 at 1027-1028. The onus of proving the existence of both incapacity and the knowledge of the other party of that incapacity rests with the mentally incapacitated or intoxicated person. The effect of mental incapacity or intoxication is to make the contract voidable at the option of the person suffering the disability and does not entitle the other party to set aside the contract: Gibbons v Wright (1954) 91 CLR 423 at 439. A voidable contract can be ratified on the intoxicated person regaining sobriety, or the mentally incapacitated person recovering their sanity, and the ratified contract will then become binding: McLaughlin v City Bank of Sydney (1912) 14 CLR 684 at 690.

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Both mentally incapacitated and intoxicated persons are bound to pay a reasonable price for necessaries obtained while incapable of knowing what they were doing. 10

Married women [6.190] Formerly, married women were under disabilities which did not attach to other persons; however, their position is now much the same as that of a single woman or a man. 11

Bankrupts [6.200] A bankrupt is not deprived of their general capacity to contract. However, there are certain provisions of the Bankruptcy Act 1966 (Cth) which relate to dealings by bankrupts. If an undischarged bankrupt, or a debtor who is party to a debt agreement, obtains credit or enters into a contract for goods and services involving an obligation to pay $3,000 or more (indexed in accordance with the Consumer Price Index) without disclosing they are an undischarged bankrupt, they are liable to imprisonment for up to three years: s 269. An undischarged bankrupt is liable to the same penalty if they carry on business under an assumed or firm name without disclosing the bankrupt’s true identity and the fact that they are an undischarged bankrupt. Certain transactions by a bankrupt in relation to property acquired after the date of the sequestration order are valid against their trustee provided they are completed before any intervention by the trustee: s 126; and see Chapter 31.

Further reading See contract texts listed at the end of Chapter 2.

10

11

Sale of Goods Act 1923 (NSW), s 7; Goods Act 1958 (Vic), s 7; Sale of Goods Act 1896 (Qld), s 5(2); Sale of Goods Act 1895 (SA), s 2(1); Sale of Goods Act 1895 (WA), s 2(1); Sale of Goods Act 1896 (Tas), s 7(1); Sale of Goods Act 1954 (ACT), s 7(2); Sale of Goods Act 1972 (NT), s 7(2). Married Persons (Equality of Status) Act 1996 (NSW), s 4; Marriage Act 1958 (Vic), ss 156 – 161; Law Reform Act 1995 (Qld), s 18; Law of Property Act 1936 (SA), ss 92 – 111; Law Reform (Miscellaneous Provisions) Act 1941 (WA), ss 2 – 3; Married Women’s Property Act 1935 (Tas), ss 3, 7, 11; Married Persons Property Act 1986 (ACT), s 3; Married Persons (Equality of Status) Act 1989 (NT), s 3.

chapter 7

Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts [7.20] Mistake ........................................................................................................................................................................ 97 [7.480] Misrepresentation........................................................................................................................................... 108 [7.570] Innocent misrepresentation ...................................................................................................................... 111 [7.690] Negligent misrepresentation .................................................................................................................... 116 [7.740] Duress ................................................................................................................................................................... 118 [7.800] Undue influence................................................................................................................................................ 120 [7.870] Unconscionable contracts .......................................................................................................................... 122

Introduction [7.10] The consent of the parties to a contract must be a genuine one otherwise the contract may be avoided. A consent which has been induced by means of fraud, or misrepresentation, or obtained through a mistake of fact is considered in law not to be genuine although, it by no means follows that all mistakes or misrepresentations enable avoidance of a contract. To summarise, the effect of the following will be considered: 1.

Mistake.

2.

Misrepresentation, which comprises: (a)

fraudulent misrepresentation;

(b)

innocent misrepresentation; and

(c)

negligent misrepresentation.

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3.

Duress.

4.

Undue influence.

5.

Unconscionable contracts.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

Mistake [7.20] As a general rule a person is bound by an agreement in which there exists an element of mistake unless he or she can show that the mistake is one of the classes mentioned at [7.30] and [7.390]. The following discussion concerns the situations in which a mistake of fact may vitiate, in certain circumstances, the apparent contract between the parties. The effect of a mistake of law is considered separately at [7.390]. Mere errors of judgment are not sufficient to have a contract set aside. If A purchases a picture assuming it is worth $1,000 when it is only worth $50, then A is bound by the contract and must bear the loss. Mistake as to the qualities possessed by a thing does not ordinarily render the contract void. The position is different if: (a)

the seller specifically contracts that he or she is selling a thing with certain qualities; or

(b)

the seller goes out of their way to make statements ascribing qualities to the thing.

These two situations are dealt with at [7.480]–[7.560].

Mistakes of fact [7.30] The general position is that a legally operative mistake of fact renders the contract void, that is, there is no contract. However, the High Court has held that a unilateral mistake as to the terms of a written contract renders the contract voidable rather than void: see [7.190]. It is difficult to appreciate the nature of the legal principles without distinguishing between the various types of mistake:

Common mistake [7.40] That is, where parties make the same mistake. Only some types of common mistake invalidate a contract; such cases are usually restricted to the existence or non-existence of the subject matter of the contract, or of a fact which goes to the root of a contract. Example A and B agree for the sale of a car which they erroneously assume to be in existence whereas it has been destroyed by fire. This contract is void. A sells to B a bull, both mistakenly believing it has won several prizes of a specific nature in the past. This contract is valid.

Mutual mistake [7.50] That is, where the parties are both mistaken but their mistakes are not the same. They are at cross-purposes. This type of mistake does not necessarily invalidate. Example A makes a clear offer to sell china to B. B makes an unqualified acceptance of the offer. B thinks that A is offering Dresden china. A is not aware of the state of B’s mind and thinks that B is merely concluding a contract to buy china. Here both parties make different kinds of mistake as to the contractual intention of the other. The contract is valid.

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However, this type of mistake may invalidate the contract in certain circumstances: see [7.130].

Unilateral mistake [7.60] That is, where one party is mistaken as to the terms of the contract or the identity of the other party and that mistake is known to the other party. In the example in [7.50], if A knows that B erroneously thinks that he is being offered Dresden china the error is B’s alone. The contract is void (or possibly voidable – see [7.190]). The effect of each of the above categories of mistake will now be considered in more detail.

Common mistake as to the existence of a fundamental fact [7.70] Here the parties have made the contract on the basis of a common assumption of fact which both intend to be a condition precedent to the existence of a binding contract. If the fact does not exist, then the condition precedent for the existence of a binding contract has not been fulfilled. The most common instance is where the subject matter of the contract has ceased to exist before the date of the contract.

case [7.80] A contract for the assignment of a life insurance policy was made upon the basis of a belief common to both parties that the assured was alive. In fact, he had died before the contract of assignment was made. It was held that there was a common mistake, and therefore the contract was one that could not be enforced: Scott v Coulson [1903] 2 Ch 249 at 252-253. In this type of case the parties have both believed wrongly that the subject matter of the contract was in existence. That belief was wrong and consequently the basic assumption on which the contract was made has never been fulfilled. [7.90] The principle is given statutory confirmation in the provision of the Sale of Goods Acts 1 that “where there is a contract for the sale of specific goods, and the goods, without the knowledge of the seller, have perished at the time when the contract was made, the contract is void”. This principle of avoidance on the ground of common mistake is, however, limited to mistake as to the existence of the subject matter or, in one special situation, mistake as to substantial identity. It does not apply to the case of a mistake made by both parties merely as to qualities or attributes possessed by the subject matter. This point is illustrated by Leaf v International Galleries [1950] 2 KB 86:

case [7.100] The plaintiff purchased a painting of Salisbury Cathedral from the defendants which both parties mistakenly believed had been painted by John Constable. When the plaintiff attempted to resell the painting, he discovered that it was not a Constable. The plaintiff sought rescission of the contract for the defendant’s innocent misrepresentation that the painting was a Constable: at 86-87.

1

Sale of Goods Act 1923 (NSW), s 11; Goods Act 1958 (Vic), s 11; Sale of Goods Act 1896 (Qld), s 9; Sale of Goods Act 1895 (SA), s 6; Sale of Goods Act 1895 (WA), s 6; Sale of Goods Act 1896 (Tas), s 11; Sale of Goods Act 1954 (ACT), s 11; Sale of Goods Act 1972 (NT), s 11.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

In the Court of Appeal Denning LJ stated: “There was a mistake about the quality of the subject-matter, because both parties believed the picture to be a Constable; and that mistake was in one sense essential or fundamental. But such a mistake does not avoid the contract: there was no mistake at all about the subject-matter of the sale. It was a specific picture, ‘Salisbury Cathedral’. The parties were agreed in the same terms on the same subject-matter, and that is sufficient to make a contract”: Leaf v International Galleries [1950] 2 KB 86 at 89. [7.110] It may be that there was no common intention that the existence of the subject matter should be a condition precedent to the existence of the contract. It may be that the seller of goods undertakes that the goods are in existence. If so there is no condition precedent, there is a valid contract and if the goods fail to materialise the seller is liable for breach of contract. This was the position in McRae v Commonwealth Disposals Commission (1951) 84 CLR 377:

case [7.120] The Disposals Commission advertised for tenders for the purchase of a wrecked tanker on a reef. The plaintiff was the successful tenderer. In reality, there had never been a wreck on the reef specified. The High Court held that there was a valid contract. The Disposals Commission was liable for its breach because it had promised that the goods were in existence. There was no “common mistake”. There was in fact a promise that the subject matter of the contract existed. The court said that in such a case “the common law … has always regarded the fundamental question as being: ‘What did the promisor really promise?’ Did [they] promise to perform [their] part at all events, or only subject to the mutually contemplated original or continued existence of a particular subject matter?” Where such questions arise, they “must be determined in the light of the words used by the parties and … the surrounding circumstances”: McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 at 407-408.

Mutual mistake [7.130] In mutual mistake, although there is to all outward appearances an existing contract, nonetheless because the parties are at cross-purposes there is in fact no correspondence of offer and acceptance. In such cases the court seeks to determine whether a “reasonable person” would infer a contract. If it decides in the affirmative, then the parties are bound by the contract a reasonable person would infer; if it decides in the negative then there is no contract.

case [7.140] Where A had sold to B by sample 100 chests of tea then lying in bond “ex the ship Star of the East” but later discovered that they had submitted a sample of a totally different tea lower in quality than that contained in the chests, it was held that A was obliged to deliver the tea: Scott v Littledale (1858) 8 El & Bl 815; 120 ER 304 at 821 (El & Bl); 307 (ER).

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Unilateral mistake As to the promise of one party [7.150] Here only one of the parties makes the mistake. This mistake must be as to the terms on which the contract is offered and must be known to the other party to have a vitiating effect on the contract.

case [7.160] In Smith v Hughes (1871) LR 6 QB 597, A had some new oats to sell and interviewed B, a racehorse trainer. B believed that A was offering to sell old oats and entered into a contract, but on finding out his error B tried to cancel his obligation. It was held that in order to release B from the contract it was necessary to prove that A knew of B’s mistake in believing that the offer was for the sale of old oats: at 608, 610. [7.170] Thus, in order that B may avoid the contract he must prove: (a)

that he intended to buy old oats;

(b)

that he thought A intended to sell old oats; and

(c)

that A knew: (i)

that B wanted to buy old oats; and

(ii)

that B thought A’s offer was to sell old oats.

The effect of a unilateral mistake as to a fundamental term of a written contract was considered by the High Court in Taylor v Johnson (1983) 151 CLR 422:

case [7.180] The vendor granted to a purchaser an option to purchase two adjoining blocks of land. The option was exercised and the parties entered into a written contract of sale for the land. In both the option and the sale agreements the purchase price stipulated was $15,000. The vendor later refused to complete the purchase on the ground that she had mistakenly believed that the option and sale agreements provided for a price of $15,000 per acre which would have amounted to a total purchase price of $150,000, the two blocks comprising 10 acres: at 425. The High Court considered that the evidence led to the inference that the purchaser believed that the vendor was acting under a serious mistake or misapprehension about either the terms (the price) or the subject matter (its value) of the transaction and deliberately set out to ensure that she was not disabused of the mistake or misapprehension: at 427. It was held that the contract of sale should be set aside. The High Court said that the particular proposition of law applicable to the case could be narrowly stated as follows: “It is that a party who has entered into a written contract under a serious mistake about its contents in relation to a fundamental term will be entitled in equity to an order rescinding the contract if the other party is aware that circumstances exist which indicate that the first party is entering the contract under some serious mistake or misapprehension about either the content or subject matter of that term and deliberately sets out to ensure that the first party does not become aware of the existence of his mistake or misapprehension”: Taylor v Johnson (1983) 151 CLR 422 at 432.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

[7.190] The High Court made it clear in Taylor v Johnson (1983) 151 CLR 422 that where the unilateral mistake relates to the actual terms of a written contract, the mistaken party cannot rely on their own mistake to say that the contract was a nullity from the beginning, that is, void ab initio. The contract in such circumstances is voidable only, that is, binding on the parties unless and until it is set aside in accordance with equitable principles, for example for fraud, misrepresentation or, as in that case, unconscionable dealing: at 429.

As to the identity of the person with whom the contract is made [7.200] This follows the same principles as those stated in the previous section. If B intends to contract with C and, wrongly thinking that A is C, goes through the motions of contracting with A, then B is normally bound as A is entitled to assume that B is assenting to the position as it actually appears. However, if A knows of the position, the contract is void.

case [7.210] In Cundy v Lindsay (1878) 3 App Cas 459, a certain person, Alfred Blenkarn, wrote to a well-known manufacturer (Lindsay) offering to purchase a considerable quantity of goods. He signed the letter in such a way as to make it appear that the signature was that of W Blenkiron & Co, a well-known and respectable firm. Lindsay wrote to “W Blenkiron & Co” at the address given by the impostor and later forwarded goods which were of course received by the impostor. The latter disposed of the goods to the defendant Cundy: at 459-460. It was held that the contract whereby Lindsay purported to sell was absolutely void: at 465, 467. Cundy derived no title to the goods, even though he was entirely ignorant of the fraud: at 466, 469. [7.220] The mistake as to identity need not, however, be caused fraudulently.

case [7.230] In Boulton v Jones (1857) 2 H & N 564; 157 ER 232, Jones was previously accustomed to deal with one Brocklehurst whose business, unknown to Jones, had been taken over by Boulton. Boulton, who knew that Jones intended to deal with Brocklehurst, supplied the goods without communicating the fact that the business had changed hands. It was held that there was no contract. Jones had no intention of contracting with Boulton and Boulton knew of it but thought that it did not matter: at 565-566 (H & N); 233 (ER). [7.240] However, in order to invalidate the contract, it is necessary to show that the party mistaken had a definite intention not to contract with the other party. In most situations of the general type of Boulton v Jones (1857) 2 H & N 564; 157 ER 232, the contract would not be void because normally the personality of the supplier of the goods would not be important to the offeror. In Boulton v Jones it was important because Jones had a set-off against Brocklehurst which was not available against Boulton. This requirement that the mistaken party should have no intention to contract with the other party raises some difficulties in the case of a fraudulently induced mistake.

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case [7.250] In Phillips v Brooks Ltd [1919] 2 KB 243, a man named North called at the plaintiff’s shop and expressed a wish to buy some jewellery. He wrote out a cheque for £3,000 saying that he was Sir George Bullough and giving the latter’s address. On the faith of this statement the plaintiff allowed him to take away some jewellery which he pledged to the defendant who had no knowledge of the fraud: at 243. It was held that the plaintiff had contracted to sell to the person who in fact had entered the shop even though he believed he was Sir George Bullough. The contract was made with the person physically present but his personality was regarded as that of another: at 246. The contract was therefore voidable for fraudulent misrepresentation but not void for mistake; the result was that the defendant derived a good title to the jewellery: at 249.

case [7.260] In Lewis v Averay [1972] 1 QB 198, L advertised his car for sale. A rogue tested the vehicle and said he liked it. He said he was “Richard Green” and led L to believe he was the well-known film actor of that name. The rogue wrote out a cheque for the agreed price of the vehicle and signed it “RA Green”. He wanted to take the vehicle at once but L was hesitant and asked for proof of identity. The rogue produced a special pass of admission to Pinewood Studios with an official stamp on it. It bore the name “Richard A Green” and a photograph which was plainly that of the rogue. On seeing this L was satisfied and let the rogue have the car. A few days later the bank told L that the cheque was worthless. Meanwhile the rogue had sold the car to A who bought it in good faith and without knowledge of the fraud. L brought an action against A for conversion of the car: at 203-204. The court held that the contract between L and the rogue was not void for mistake and accordingly A acquired a good title to the car. Lord Denning MR said that when a seller deals with a person actually present before him the presumption is that he is contracting with that person, even though the latter fraudulently impersonates someone else. On the facts, L had contracted with the person present before him, that is, the rogue, and therefore although that contract was voidable because of the rogue’s fraudulent misrepresentation, it was not void. Title to the car passed to A on its subsequent sale to him by the rogue: at 207. [7.270] Lewis v Averay [1972] 1 QB 198 demonstrates that where there is a mistake as to the identity of a party, but that mistake was not essential to the other party’s decision to enter the contract, there will be a valid contract. However, the contract will be voidable, that is, liable to be set aside by the mistaken person for the rogue’s fraudulent misrepresentation so long as the mistaken party does so before a third party in good faith acquires rights under it, for example by purchasing the goods from the rogue.

case [7.280] In Papas v Bianca Investments Pty Ltd (2002) 82 SASR 581, the plaintiff sold a car to a rogue using a false identity and paying for the vehicle with a bank cheque which was subsequently dishonoured. The rogue then obtained a loan of money from the defendant using the car as security. The court held that the contract between the plaintiff and the rogue was valid since the plaintiff was prepared to sell to anyone who could pay, that is, the “identity of the purchaser was immaterial”: at [20]. Although the contract between the plaintiff and the rogue was liable to be rescinded for the rogue’s misrepresentation, the plaintiff’s action to recover the vehicle from the defendant failed since

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

the plaintiff did not rescind the contract before the defendant acquired its interest in the vehicle: at [29]. [7.290] The two cases discussed at [7.270]–[7.280] differ from the Cundy v Lindsay (1878) 3 App Cas 459 type of case where the mistaken party never addressed his offer to the impostor at all; he intended to make his offer to a third person. In such a situation as we have seen, the contract is void for mistake. The rogue therefore has no title at all to the goods he has received as a result of his fraud and therefore nothing which he can transfer to an innocent third party who will be liable to return the goods to the original seller of the goods to the rogue. The question really is whether there was an intention right through to deal only with a particular third party, in which case the contract will be void for mistake, or whether there was an intention to deal with the offering party though motivated by the belief that he or she was somebody else, in which case there is a valid contract, although voidable, that is liable to be set aside by the mistaken person provided he or she does so before a third party in good faith acquires rights under it.

Mistake as to the nature of the transaction [7.300] This applies only to written documents. If a person signs a written document which he or she mistakenly believes to relate to a transaction entirely different in character from that to which in fact it does relate he or she will not be bound. To an action on the contract such person has a defence which is called non est factum (“it is not his deed”). 2 The plea of non est factum was closely examined by the House of Lords in Saunders v Anglia Building Society [1971] AC 1004. This defence will only succeed where a person can establish that the document they signed was fundamentally different in character from that which they thought it to be: at 1017, 1022, 1026, 1039. Furthermore, if in the circumstances the signer was careless in failing to take reasonable precautions before signing the document, he or she will not be able to avoid liability on the document against an innocent third party. In particular, where a person of full age and understanding fails to read a document which they sign, either because they are too busy or too lazy, that person will not be entitled to raise the plea of non est factum: at 1016, 1019, 1021, 1023, 1026, 1036. The facts in the Saunders case were as follows:

case [7.310] The plaintiff, a widow of 78 years of age, gave the deeds of her home to her nephew to assist him in raising money on the security of the house. She knew that L, a friend and business associate of her nephew, would help him to arrange a loan. L consulted a firm of solicitors who drafted a deed of assignment of the house from the plaintiff to L. L asked the plaintiff to sign the document. The plaintiff had broken her spectacles and could not read the document so she asked L what it was. L told her that it was a deed of gift of the house to her nephew and she executed it in that belief. L mortgaged the house to a building society but used the money so raised to pay his own debts and defaulted on the mortgage instalments. The building society sought to obtain possession of the house. The plaintiff brought an action against L and the building society seeking a declaration that the 2

See generally E Bant, “Incapacity, Non Est Factum and Unjust Enrichment” (2009) 33 Melbourne University Law Review 368; CYC Chew, “The Application of the Defence of Non Est Factum: An Exploration of its Limits and Boundaries” (2009) 13 University of Western Sydney Law Review 83.

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assignment to L was void. She invoked the plea non est factum, claiming that what she had intended was a gift of the property to her nephew and not its assignment to L: at 1028-1029. The House of Lords, affirming the decision of the Court of Appeal, rejected the plaintiff’s claim on the ground that she had failed to establish that the assignment to L was fundamentally different in character and nature from what she had intended. From the evidence, it was apparent that the plaintiff had signed the document with the object of enabling L to raise a loan on the security of the house for the benefit of her nephew, an object which would in fact have been achieved had L acted honestly: Saunders v Anglia Building Society [1971] AC 1004 at 1018, 1020. [7.320] The same basic approach was adopted by the Australian High Court in Petelin v Cullen (1975) 132 CLR 355:

case [7.330] P owned land which R wished to buy and develop. Through his agent C, R obtained a six-month option to purchase the land from P in consideration of $50. Shortly after the expiry of the option a letter was written to P in which was enclosed a further cheque for $50. Subsequently C saw P and asked him whether he had received the cheque for $50. On P replying in the affirmative, C then asked him: “Have you got a paper like that?” and showed P a form of document proposing an extension of the option. P replied that he had and C said: “Sign it that you have received $50”. P signed the document but did not read it. P could not read English. He had signed the document in the belief that it was a receipt, when in fact it was an extension of the option. The reason for P accepting the second cheque for $50 was that C had said when the original cheque was handed over: “Here’s the $50 and after six months you will receive another $50”: at 357-358. R exercised the option within the period of the second six months but P refused to sell the land. When R brought an action for specific performance of the option, P relied on the defence of non est factum. The High Court said: “To make out the defence a defendant must show that he signed the document in the belief that it was radically different from what it was in fact and that, at least as against innocent persons, his failure to read and understand it was not due to carelessness on his part”: Petelin v Cullen (1975) 132 CLR 355 at 360. The court added that what was meant by carelessness in this context was a “failure to take reasonable precautions in ascertaining the character of a document before signing it”: at 360. The need to take such precautions is “of fundamental importance when the defence is asserted against an innocent person, … who relies on the document and the signature which it bears and who is unaware of the circumstances in which it came to be executed”: at 360. On the facts the question of carelessness was not relevant since P’s belief that the document was a receipt had been caused by C, for whose actions R was responsible. Consequently as against P, R was “not to be considered an innocent person without reason to doubt the validity” of P’s signature: at 360. In any event the facts disclosed that there had been no carelessness on P’s part. The High Court went on to hold that P had discharged the onus on him of showing that there was a radical difference between what he signed (that is, an extension of the option) and what he thought he was signing (that is, a receipt) and had therefore made out the defence of non est factum: at 361. [7.340] This doctrine was applied in Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42:

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

case [7.350] F borrowed $200,000 using his house as security. He had an intellectual disability and was illiterate. The loan was entered into at the behest of his son to finance the son’s business. F had no understanding of the loan: at [21]. He was manipulated by his son: at [16]. The business failed and F defaulted on the loan. F derived no benefit from the loan other than a sum of $24,000 deposited into his bank account: at [23]-[24]. The Court held that where a signer had no understanding at all of the transaction, “the mind does not go with the pen”: Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 at [77]. On the facts F did not know what he was signing, beyond knowing that it was a piece of paper: at [84]-[85]. The defence of non est factum was available. The loan and mortgage were void.

Effect of mistake of fact [7.360] The general position where a mistake of fact is legally operative is that it renders the contract void. However, the High Court in Taylor v Johnson (1983) 151 CLR 422 held that a unilateral mistake as to the actual terms of a written contract does not render the contract void but voidable, that is, binding unless and until set aside in equity, for example for fraud, misrepresentation, or unconscionable dealing: at 429. The High Court left open the question whether that is also the position in the case of a unilateral mistake in relation to an informal contract, or as to the identity of the other party. The view taken by the authors is that a unilateral mistake in both those situations renders the contract void unless and until the issue is determined otherwise in some future decision. In circumstances where the mistake renders the contract void, then where the contract is wholly or partly unperformed on both sides either party can repudiate and can successfully defend any action brought against them. One result of the contract being void (and not merely voidable) is that people who in ignorance purport to deal with one of the parties acquire no rights in the subject matter of the contract, as for instance in Cundy v Lindsay (1878) 3 App Cas 459: see [7.210]. If the contract is entirely performed on one side by the payment of money under a mistake of fact, then the person who has so paid can recover.

case [7.370] An insurance company paid B a sum of money by mistake under an insurance policy which had lapsed through non-payment of premiums. It was held that as the payment of money was made through a mistake of fact it could be recovered: Kelly v Solari (1841) 9 M & W 54; 152 ER 24 at 58 (M & W); 26 (ER). [7.380] The recovery of money paid under a mistake of fact by an action in restitution is discussed in Chapter 12.

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Mistake of law [7.390] In David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353, the High Court held that payments made under a mistake of law are prima facie recoverable in the same way as payments made under a mistake of fact. 3 However, the recipient of money paid under a mistake will not be liable to repay the money if they can point to circumstances which the law recognises would make an order for restitution unjust: at 379. Such “defences” to an action for recovery of money paid under a mistake include: (a)

that the payments were made for good consideration, for example if the money is paid to discharge, and does discharge, a debt owed to the recipient by the payer; and

(b)

that in reliance upon receipt of the payments the recipient, in good faith, changed its position to its detriment, 4 that is, can point to expenditure or financial commitment which can be ascribed to the mistaken payment: at 380.

Further, a “voluntary” payment made in satisfaction of an honest claim is not recoverable. The High Court described such “voluntary” payment as follows: “The payment is voluntary … if the plaintiff chooses to make the payment even though he or she believes a particular law or contractual provision requiring the payment is, or may be invalid, or is not concerned to query whether payment is legally required; he or she is prepared to assume the validity of the obligation, or is prepared to make the payment irrespective of the validity or invalidity of the obligation, rather than contest the claim for payment”: at 373-374.

case [7.400] In David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 the appellants entered into an agreement with the Commonwealth Bank for a foreign currency loan. The loan agreement required the appellants to pay the bank in respect of its withholding tax liability. Subsequently, the appellants suffered considerable financial losses owing to adverse fluctuations in exchange rates and claimed damages against the bank and the accountants who had advised them in relation to the loan. The bank cross-claimed for recovery of moneys due under the loan: at 360-361. The High Court held that money paid under a mistake of law is prima facie recoverable. However, the High Court remitted the case back to the trial judge to determine whether in the particular circumstances the appellants had paid the additional amounts under the contract because of their mistaken belief that their contractual arrangements with the bank required the payments, and whether the bank had changed its position on the faith of the receipt of the payments by the appellants: at 386.

Remedy of rectification [7.410] Where the parties are agreed and there has been no mistake as to what they have agreed upon, but the contract has been reduced to writing and by a common mistake such writing erroneously records the effect of what has been already agreed, equity will order the written contract to be rectified to accord with 3

4

In Western Australia, the Property Law Act 1969 (WA), s 124 contains a provision to similar effect. That section was considered in Inn Leisure Industries Pty Ltd (Provisional Liquidator Appointed) v DF McCloy Pty Ltd (1991) 28 FCR 151 at 169-170. In Western Australia the Property Law Act 1969 (WA), s 125 contains a provision to similar effect. See E Bant and P Creighton, “The Statutory Change of Position Defences in Western Australia” (2003) 31 University of Western Australia Law Review 47.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts 5

the parties’ intention. This is the remedy of rectification: Slee v Warke (1949) 86 CLR 271 at 280-281. The contract is actually rewritten to accord with the intention of the parties: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [30], [42], [446].

case [7.420] A term in a written contract for the sale of land provided that the purchaser should pay interest on the balance of the purchase price calculated from 1 May 1975. It was found on the facts that the common intention of the parties prior to the written contract was that interest was to be calculated from 1 May 1974, the date the purchaser was to enter into possession of the property, and that insertion of the date 1975 had been made by mistake: at 729. It was held that the written contract should be rectified by substituting “1974” for “1975”: Commerce Consolidated Pty Ltd v Johnstone [1976] VR 724 at 732. [7.430] In Ryledar Pty Ltd v Euphoric Pty Ltd (2007) 69 NSWLR 603 it was held that this remedy is concerned with the subjective rather than the objective common intentions of the parties, that is, it is concerned with their actual intentions: at [1], [182], [189], [267], [316]. Hence parol evidence of intention is admissible in a rectification case: at [1], [189], [269]. However, each party must know the intention of the other party in order for there to be a common intention: at [1], [189], [281]. Some decisions have held that rectification is not limited to a mistake in recording the common intention of the parties. These decisions take the view that the remedy is also available where there is a mistake as to the meaning or effect of the words that the parties have deliberately chosen to use in the contract: Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 at [282]-[283]. For rectification of a contract to be granted, convincing proof must be given that the written contract does not embody the final intention of the parties and the omitted ingredient must be capable of such proof in clear and convincing terms: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [30], [42], [451].

case [7.440] Land sold by a vendor to a purchaser was described in the contract of sale as including “Subdivision 1 of Portion 1154”. Both parties believed that an area containing a bore and some 27 acres of cultivated land lay within the portion sold but in fact it was within land retained by the vendor. This was only discovered after completion of the contract. The purchaser sought rectification of the contract to include the bore and cultivated land. The High Court held that rectification should not be granted. The purchaser had not advanced convincing proof that the written contract describing the specific parcel of land to be conveyed did not embody the final intention of the parties. The term proposed was clearly inconsistent with the description of the land in the contract and, further, the purchaser had failed to establish the precise terms of the new boundary line: Pukallus v Cameron (1982) 180 CLR 447 at 449, 453, 457. [7.450] In some cases where the mistake has been unilateral, for instance where one party has snapped up an offer which they knew was not intended, and the contract has then been reduced to writing, the court in

5

See generally D Mossop, “Rectification for Unilateral Mistake” (1996) 10 Journal of Contract Law 259; JW Carter, “The Remedy of Rectification” (2013) 27(2) Commercial Law Quarterly 10.

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its equitable jurisdiction has put the alternative to the defendant of either submitting to have the contract rectified or have it rescinded, that is cancelled and set aside by the court. Equity is able to take this kind of attitude because its remedies are discretionary. The Victorian Court of Appeal has stated the principles concerning rectification for unilateral mistake as follows: “If (1) one party, A, makes an agreement under a misapprehension that the agreement contains a particular provision which the agreement does not in fact contain; and (2) the other party, B, knows of the omission and that it is due to a mistake on A’s part; and (3) lets A remain under the misapprehension and concludes the agreement on the mistaken basis in circumstances where equity would require B to take some step or steps … to bring the mistake to A’s attention; then (4) B will be precluded from relying upon A’s execution of the agreement to resist A’s claim for rectification to give effect to A’s intention”: Leibler v Air New Zealand Ltd (No 2) [1999] 1 VR 1 at 14. Rectification may thus be granted for a unilateral mistake by one party where the conduct of the other party is unconscionable: Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd (2015) 47 WAR 547 at [174]. In that case the contract mistakenly provided for a licence fee of $375 per year rather than per month: at [135]. Rectification was granted where one party unconscionably sought to “take advantage” of the other party’s “obvious and significant mistake”: at [180].

case [7.460] In Tutt v Doyle (1997) 42 NSWLR 10, the vendor of a block of land had, to the purchaser’s knowledge, mistakenly indicated on a plan of subdivision a larger area to be transferred than had been agreed under the contract: at 11. The New South Wales Court of Appeal held that, in view of the vendor’s unilateral mistake, it would be unconscionable for the purchaser to retain the benefit thereby obtained. In the circumstances the Court ordered retransfer of the land rather than rescission: at 12-13, 20. [7.470] The remedy of rectification is available in relation to a deed poll, which may be a unilateral instrument: Tipperary Developments Pty Ltd v Western Australia (2009) 38 WAR 488 at [278]. In rectifying a contract, the court gives effect to the common intention of the parties. Where that common intention cannot be achieved, the court does not order what it considers to be the “nearest alternative”: Club Cape Schanck Resort Co Ltd v Cape Country Club Pty Ltd (2001) 3 VR 526 at [14]. The power to rectify a contract is limited to what is necessary to express the common intention of the parties and may not change the contract beyond that extent: Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [30], [42], [448]. In appropriate circumstances, the power to rectify a document extends to rectification by the substitution of one name for another: Elders Lensworth Finance Ltd v Australian Central Pacific Ltd [1986] 2 Qd R 364 at 367-368.

Misrepresentation [7.480] With a mistake that is regarded as invalidating a contract, the notion is that the parties have not really agreed. With misrepresentation, the parties have agreed but one of them has been motivated to agree by a statement as to some existing fact or past event that is not true. A representation is a statement of fact intended to induce a party to make a contract. If the representation is untrue, that is, where it constitutes a misrepresentation, the contract is not void. The remedies available to a party who is induced to enter into a

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

contract because of a misrepresentation of fact will vary according to the nature of the misrepresentation, that is, whether the misrepresentation was made innocently, fraudulently, or negligently. It is vital to distinguish simple representations from representations which are terms of the contract. Simple representations as to fact are not terms of the contract; they are merely inducing causes of it being made. However, if the party making a statement promises the truth of that statement in the sense of making it part of the contractual bargain, then it is a term of the contract, and non-fulfilment entitles the other party to take action for breach of contract. In such a case, the innocent party always has the right of suing for damages but if the term is a condition, that is, a term of such importance as to go to the basis of the contract, he or she can repudiate the contract and hold themselves discharged from further performance. If it is merely a warranty, 6 that is a term of lesser significance, the party is limited to suing for damages. If a term of the contract is involved, the remedies given are common law remedies and they are given whether the promise which forms the condition or warranty, as the case may be, is made fraudulently or innocently. The distinction between fraudulent and innocent misrepresentation is one concerning the case where the statements are representations only and not contractual promises. Each of the categories of fraudulent, innocent, and negligent misrepresentation will now be considered.

Fraudulent misrepresentation [7.490] Fraud exists “when it is shown that a false representation has been made (1) knowingly, or (2) without belief in its truth, or (3) recklessly, careless whether it be true or false”: Derry v Peek (1889) 14 App Cas 337 at 374. Fraud may also exist where there is a partial statement of fact in such a manner that the withholding of what is not stated “makes that which is stated absolutely false”: Peek v Gurney (1873) LR 6 HL 377 at 403. For an action for fraud to succeed, or for the other party to have the remedies given to a person induced to enter into a contract by means of fraudulent misrepresentation, the following six elements must be established: 1.

The representation must be one of fact.

2.

The representation must be untrue.

3.

The party who makes such representation must know that what they are stating is false, or they must have no belief in its truth, or not care whether it is true or false.

4.

The party who makes the representation must intend the other party to the contract to act upon such representation.

5.

The representation must, in fact, have been acted upon by the other party.

6.

The person claiming must have suffered damage.

The presence of each element is necessary in order to constitute the grounds for an action for fraud, or to afford those remedies to the other party to the contract.

1. Statement of fact [7.500] There must be a statement of fact as distinct from a mere expression of opinion. However, a statement of opinion can be held to involve a misrepresentation when the person making it really did not hold that opinion or a reasonable person could not have held the opinion: Smith v Land and House Property Corp (1884) 28 Ch D 7 at 15. 6

The distinction between conditions and warranties in a contract is explained in detail at [9.180].

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It has been held that a fraudulent misrepresentation of law will also give rise to the same remedies as a fraudulent misrepresentation of fact. Thus, where there was a fraudulent misrepresentation as to the zoning of certain land, it was held that the misrepresentation was one of law not fact but that the purchaser was nonetheless entitled to rescind the contract for the sale of the land: Public Trustee v Taylor [1978] VR 289 at 299.

2. Falsity [7.510] This is obviously a necessary ingredient of liability. It is a question of fact in each case whether the representation is false or not. If the representation “is true when made, but becomes false to the knowledge of the representor before the contract is concluded”, and the representor concludes the contract without disclosing the falsity of the representation, they are just “as liable as if the representation had been false to [their] knowledge when originally made”: Jones v Dumbrell [1981] VR 199 at 203-204.

3. Known to be false, or without belief in its truth, or recklessly careless whether it be true or false [7.520] This is a further element of fraud. The representor need not actually know that what they are representing is in fact untrue. The representor is liable if they make the false statement when they have no knowledge whether it is true or false, and also when they do not trouble to verify the truth of what is said. If, on the other hand, the person making the representation genuinely believed the statement to be true, there is no fraud even though their belief was formed negligently. The High Court has stated that: “In order to succeed in fraud, a representee must prove, inter alia, that the representor had no honest belief in the truth of the representation in the sense in which the representor intended it to be understood”: Krakowski v Eurolynx Properties Ltd (1995) 183 CLR 563 at 578.

4. Intended to be acted upon [7.530] This means, for example, intending that the other party enter into a contract or do any other act in reliance on the statement.

5. In fact acted upon [7.540] The misrepresentation must have induced the other party to enter into the contract. Accordingly, if the party to whom the representation is made is fully aware of the falsity of the statement, they will be unable to show that it induced them to enter into the contract. However, even where the person to whom the representation was made did not believe the representation to be entirely true, they will still have a remedy for fraudulent misrepresentation so long as they were not aware at the relevant time of the extent of the fraud: Gipps v Gipps [1978] 1 NSWLR 454 at 460. Where the representation is believed to be true but is not relied upon by the person to whom it is made, there is no liability since the representation would not have induced them to enter into the contract: Holmes v Jones (1907) 4 CLR 1692 at 1706, 1710.

6. Resulting in damage [7.550] If no damage is suffered from the false representation, no action lies.

Remedies for fraudulent misrepresentation [7.560] A person who has been induced to enter into a contract by reason of fraudulent misrepresentation is in the following position:

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

1.

They may refuse to be bound by the contract and bring an action for its rescission where such a course is necessary, for example in the case of contracts under which the defrauded party has given some benefit before the fraud was discovered.

2.

They may take advantage of the contract to the extent of retaining what benefits they may have received and sue for fraud, claiming such damages or loss as they have sustained.

3.

They may successfully defend any attempts to enforce the contract against them.

In cases 1. and 3. the representee is treating the contract as at an end. In case 2. the representee is affirming the contract, that is allowing the contract to stand, but is claiming damages for the loss they have suffered through the misrepresentation. Where the latter approach is adopted, the general principle in assessing damages is that the plaintiff is to be put, so far as possible, in the position they would have been in if they had not acted on the fraudulent inducement. For example, where a person complains that they have been induced by fraud to buy something and pay more for it than it was worth, the measure of damages which that person is entitled to recover is, prima facie, the amount by which the price paid exceeds the value of the thing purchased at the time of sale. Consequential loss is also recoverable in an appropriate case: Gould v Vaggelas (1984) 157 CLR 215 at 222, 242, 254. Where fraud is present the contract is not void but merely voidable. However, where the fraudulent misrepresentation has been of such a nature that it has resulted in no true agreement between the parties, then the contract may be void on the grounds of mistake.

Innocent misrepresentation [7.570] An innocent misrepresentation is an incorrect statement of fact made without an intention to mislead or deceive, or made without realisation of its untruth. It can also arise from a non-disclosure of facts where such non-disclosure occurs without the intention of deceiving. It is a misrepresentation of facts or circumstances which operate as an inducement to the making of the contract.

Difference between innocent misrepresentation and fraud [7.580] An innocent misrepresentation occurs when a person makes an untrue statement in good faith and without knowing that they have made a false statement or created a wrong impression. Fraudulent misrepresentation occurs where a person makes an untrue statement either 1. knowing it is untrue, or 2. without a belief in its truth, or 3. recklessly without caring whether it is true or not.

Example of innocent misrepresentation [7.590] The following is an example of innocent misrepresentation:

case [7.600] In Redgrave v Hurd (1881) 20 Ch D 1, the defendant was induced to enter into a contract to purchase from the plaintiff a house and together with it the latter’s practice as a solicitor, on the faith of a misstatement as to the value of the returns from the business. The court held that there was no statement made which was false to the knowledge of the plaintiff; hence damages were refused to the defendant but the plaintiff was refused specific performance and the contract was rescinded: at 12, 22, 26.

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Remedies for innocent misrepresentation [7.610] Common law disregarded innocent misrepresentation where it was not made a term of the contract; it neither awarded damages nor regarded the contract as void or liable to be rescinded. There are three exceptions to this: 1.

If the representation is so basic that the subject matter as actually existing is so different from what it would have been if the representation had been true as to amount to a complete difference in substance between what the mistaken party bargained for and what in fact he or she will obtain if the contract is fulfilled, then the contract is void on the basis of common mistake at common law: Kennedy v Panama Royal Mail Co (1867) LR 2 QB 580 at 586-587.

2.

Where an agent wrongly represents that they have authority to sell property when in fact they do not, the agent is liable for damages even though their misrepresentation was innocent. (This is known as “breach of warranty of authority”: see [13.580].)

3.

If the representation becomes more than a representation and is made a term of the contract. (This is not really a true exception.)

There is also a statutory exception in the Corporations Act 2001 (Cth) whereby directors and promoters of companies are made liable for certain statements in prospectuses and reports unless they establish certain defences: see s 728. [7.620] Subject to the exceptions and qualifications discussed at [7.610], and those mentioned later, the remedies of a person who has been deceived by an innocent misrepresentation are of an equitable character only. The injured party to a contract entered into through innocent misrepresentation has in equity the right: (a)

to rescind the contract whereupon they can obtain an “indemnity” against expenses incurred because of the obligations in the contract;

(b)

to resist successfully an action for specific performance of the contract.

Apart from the elements of fraud and damage, an innocent misrepresentation in order to bring about the above results must exhibit the same characteristics as those which were previously set out in the case of fraudulent misrepresentation, namely 1., 2., 4. and 5. set out at [7.490]-[7.550]. The main difference between the remedies for fraud and the remedies for innocent misrepresentation is that damages are not obtainable as a result of innocent misrepresentation unless, as has been pointed out, the representation becomes a term of the contract. Several legislative modifications of these principles are discussed separately at [7.640].

The remedy of rescission [7.630] This equitable remedy is available in the case of both fraudulent and innocent misrepresentation. It amounts to setting the contract aside and restoring the parties to the position they occupied before the contract was made. 7 The following points are relevant to this remedy: 1.

7

The right is lost if the party entitled to rescind affirms the contract after becoming aware of the falsity of the representation. A contract is affirmed if the representee, after full knowledge of the See generally NY Nahan, “Rescission: A Case for Rejecting the Classical Model?” (1997) 27 University of Western Australia Law Review 66; DSK Ong, Ong on Rescission (Federation Press, Sydney, 2015).

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

facts, declares their intention to proceed with the contract, or does some act from which such an intention may be inferred: Clough v London and North Western Railway Co (1871) LR 7 Exch 26 at 34. A representee will not generally be taken to have affirmed a contract unless they were also aware of their right to rescind: Coastal Estates Pty Ltd v Melevende [1965] VR 433 at 435, 443, 453. Where the contract is affirmed, the representee retains a right to sue for damages only if the representation was fraudulent. 2.

The right is lost if third parties acting in good faith acquire rights in the subject matter of the contract before the right to rescind is exercised. This occurred in Phillips v Brooks Ltd [1919] 2 KB 243, discussed at [7.250].

3.

It does not exist if by reason of the changes that have occurred it is no longer possible to restore the parties to their former position. In this context the court will go to considerable lengths in ordering payments and adjustments to be made, particularly in a case of fraudulent misrepresentation: Alati v Kruger (1955) 94 CLR 216 at 223-224.

4.

In the case of innocent misrepresentation, the court will not order rescission if the contract has been completed: Seddon v North Eastern Salt Co Ltd [1905] 1 Ch 326 at 332. 8 This limitation on the right to rescission has been doubted but it seems at least to apply to contracts dealing with interests in land where a conveyance, transfer, or lease has been executed: Svanosio v Macnamara (1956) 96 CLR 186 at 198, 209. Rescission was held to be unavailable where a contract for the sale of a business had been fully executed: Vimig Pty Ltd v Contract Tooling Pty Ltd (1986) 9 NSWLR 731 at 737.

5.

It was held in South Australia and in New South Wales that a contract for the sale of goods can be rescinded for innocent misrepresentation: Graham v Freer (1980) 35 SASR 424 at 424, 436; Leason Pty Ltd v Princes Farm Pty Ltd [1983] 2 NSWLR 381 at 387. This is now confirmed in New South Wales by the Sale of Goods Act 1923 (NSW), s 4(2A). In the Australian Capital Territory, a contract for the sale of goods can be rescinded for an innocent misrepresentation: Sale of Goods Act 1954 (ACT), s 62(1) – (2).

Statutory remedies for misrepresentation in South Australia and the Australian Capital Territory South Australia [7.640] At common law, damages can only be recovered by a contracting party for a fraudulent as opposed to an innocent misrepresentation, unless the latter has become a term of the contract. The South Australian Misrepresentation Act 1972 (SA) extends the circumstances in which damages may be awarded for misrepresentation. The Act provides that a party induced to enter into a contract by the misrepresentation of another party, her or his agent, or a person receiving any consideration or material advantage as a result of the formation of the contract, is entitled to damages in the same way as if the representation had been made fraudulently: s 7(1). However, it is a defence to such an action for damages that: (a)

8

the person by whom the representation was made had reasonable grounds to believe and did believe that the representation was true; or See P McFarlane and L Willmott“Rescission of an Executed Contract at Common Law for an Innocent Misrepresentation” (1998) 10 Bond Law Review 58.

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(b)

the defendant was not the person by whom the representation was made and did not know and could not reasonably be expected to have known that the representation had been made or that it was untrue: s 7(2).

To be actionable the representation has to constitute a misrepresentation and not amount to mere puffery.

case [7.650] The sales brochure for a house stated: Nothing to Spend – Perfect Presentation. In fact the house required major structural repairs. The South Australian Full Court held that the buyer had not engaged in misrepresentation under s 7 of the Misrepresentation Act 1972 (SA). The majority judges gave different reasons for this conclusion. White J held that the statement was not a representation of fact. The “more specific” a statement is, the “less likely” that it will constitute “mere puffery”: at [72]. The statement appeared as an eye-catching headline: at [79]. The words “perfect presentation” were puffery, and the words “nothing to spend” were coloured by this immediate context: at [80]. The words were also used in a context – real estate advertising – where exaggeration is common: at [81]. Layton J summarised the principles relating to puffery and misrepresentation. Puffery means exaggeration and does not amount to a representation of fact. It is very common in the real estate context: at [109]. The words “perfect presentation” were puffery: at [117]. “Nothing to spend” did amount to a representation of fact: at [119]. Linked with the words about presentation, the words “nothing to spend” meant that the purchaser would not need to spend any money on presentation, that is the “visual appearance” of the house: at [120]. If the words “nothing to spend” had not been linked to a statement about presentation, the result might have been different: at [123]. Sulan J dissented since in his view there had been a misrepresentation: Mitchell v Valherie (2005) 93 SASR 76. [7.660] The Act also removed certain limitations to rescission by providing that a party is entitled to rescind a contract for misrepresentation notwithstanding that the misrepresentation has become a term of the contract, that the contract has been performed, or that conveyances, transfers or other documents have been registered at any public registry office in pursuance of the contract: Misrepresentation Act 1972 (SA), s 6(1); see JAD International Pty Ltd v International Trucks Australia Ltd (1994) 50 FCR 378, discussed at [14.830]. The right to rescind will be lost, as was the case prior to the Act, where a third party has in good faith and for valuable consideration acquired an interest in the subject matter of the contract: s 6(2). Where it is proved that a party has rescinded or is entitled to rescind a contract for misrepresentation, the court may, if it considers it just and equitable to do so, declare the contract to be subsisting and award such damages as it considers fair and reasonable in view of the misrepresentation: s 7(3). In other words, the provision enables the court to decide whether damages rather than rescission is the more appropriate remedy in the circumstances. A provision in a contract which purports to exclude or restrict the liability of a party for misrepresentation or the remedies available to another contracting party arising from a misrepresentation, is of no effect except to the extent to which the court may allow reliance on such provision as being fair and reasonable in the circumstances of the case: s 8.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

Australian Capital Territory [7.670] Similar remedies for misrepresentation are also available in the Australian Capital Territory by virtue of the Civil Law (Wrongs) Act 2002 (ACT). 9 For example, the purchasers of a franchise for the installation of domestic burglar alarms recovered damages for the loss they suffered as a result of reliance on the defendant’s false representation as to the state of competition in such business in Canberra: Crawford v Parish (1991) 105 FLR 361 at 367. The only real difference between the Australian Capital Territory Act and the South Australian Act lies in the formulation of the defences available to an action for damages for misrepresentation. Thus, in the Australian Capital Territory it is a defence to an action for damages that: (a)

where the representation was made by the defendant – the defendant had reasonable grounds for believing and did believe up to the time the contract was made, that the representation was true; and

(b)

where the representation was made by a person acting for or on behalf of the defendant – both the defendant and that person had reasonable grounds for believing, and did believe up to the time the contract was made, that the representation was true: s 174(3).

Misrepresentation under the Australian Consumer Law [7.680] The Australian Consumer Law 10 provides civil remedies where misrepresentations by a person constitute misleading or deceptive conduct. Section 18(1) provides that: A person must not, in trade or commerce, engage in conduct that is misleading or deceptive or is likely to mislead or deceive. The Act also provides civil remedies, as well as penal sanctions, where misrepresentations are made in connection with the supply of goods or services. Section 29(1) provides: A person must not, in trade or commerce, in connection with the supply or possible supply of goods or services or in connection with the promotion by any means of the supply or use of goods or services make a false or misleading representation: (a) that goods are of a particular standard, quality, value, grade, composition, style or model or have had a particular history or particular previous use;

9 10

(b)

that services are of a particular standard, quality, value or grade;

(c)

that goods are new;

(d)

that a particular person has agreed to acquire goods or services;

(e)

that purports to be a testimonial by any person relating to goods or services;

(f)

concerning: (i)

a testimonial by any person; or

(ii)

a representation that purports to be such a testimonial; relating to goods or services;

(g)

that goods or services have sponsorship, approval, performance characteristics, accessories, uses or benefits;

(h)

that the person making the representation has a sponsorship, approval or affiliation;

(i)

with respect to the price of goods or services;

(j)

concerning the availability of facilities for the repair of goods or of spare parts for goods;

The remedies for misrepresentation formerly contained in the Law Reform (Misrepresentation) Act 1977 (ACT) were repealed and incorporated in the Civil Law (Wrongs) Act 2002 (ACT), ss 172 – 179. The Australian Consumer Law is Sch 2 to the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)): see Chapter 17.

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(k)

concerning the place of origin of goods;

(l)

concerning the need for any goods or services;

(m)

concerning the existence, exclusion or effect of any condition, warranty, guarantee, right or remedy;

(n)

concerning a requirement to pay for a contractual right that: (i)

is wholly or partly equivalent to any condition, warranty, guarantee, right or remedy; and

(ii)

a person has under a law of the Commonwealth, a State or a Territory (other than an unwritten law).

The Australian Consumer Law also prohibits misrepresentations made in relation to the sale or grant of an interest in land. In this context s 30(1) provides: A person must not, in trade or commerce, in connection with the sale or grant, or the possible sale or grant, of an interest in land or in connection with the promotion by any means of the sale or grant of an interest in land make a false or misleading representation: (a)

that the person making the representation has a sponsorship, approval or affiliation;

(b)

concerning the nature of the interest in the land;

(c)

concerning the price payable for the land;

(d)

concerning the location of the land;

(e)

concerning the characteristics of the land;

(f)

concerning the use to which the land is capable of being put or may lawfully be put; or

(g)

concerning the existence or availability of facilities associated with the land.

A more detailed account of the false or misleading representation provisions of the Australian Consumer Law will be found in Chapter 17. In Victoria the Australian Consumer Law and Fair Trading Act 2012 (Vic) provides that if a purchaser enters into a contract for the supply of goods following an innocent representation, the purchaser has the right to rescind the contract if they would have been entitled to rescind if the misrepresentation had been fraudulent. The right to rescind may be exercised by giving notice to the supplier within a reasonable period after acceptance of the goods (or delivery of the goods in the case of a lease): s 24(1). The purchaser must return the goods to the supplier or allow the supplier to take possession of them: s 25(2).

Negligent misrepresentation [7.690] So far we have been considering the remedies available where a person has been induced to enter into a contract with another as a result of a misrepresentation made by the latter. However, a person may enter into a contract as a result of negligent advice or information given to them by a third party. In Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465, the House of Lords recognised that in an appropriate case damages could be obtained in tort for negligent misrepresentation against the third party who gave the negligent advice or information. The facts in that case were as follows:

case

[7.700] Hedley Byrne was an advertising agency which had placed substantial forward advertising orders for a company called Easipower. Hedley Byrne was personally liable to television and

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

newspaper companies for the costs of the advertisements. Subsequently, Easipower sought to have Hedley Byrne undertake for it an advertising campaign involving substantial expenditure. Hedley Byrne asked its bankers to obtain a credit report from Heller & Partners, which was Easipower’s bank. Heller subsequently provided a favourable credit report. The report was supplied in a letter which was headed Without Responsibility On The Part Of This Bank Or Its Officials. In reliance on the favourable credit report, Hedley Byrne placed orders which, on the failure of Easipower, caused Hedley Byrne a substantial financial loss: at 480-481. It was held that as there had been an express disclaimer of responsibility Heller was under no duty of care to Hedley Byrne: at 492, 504, 533, 540. However, the Law Lords expressed the view that a negligent, though honest, statement, whether spoken or written, might nonetheless give rise to an action for damages for financial loss caused thereby, even though there was no contractual or fiduciary relationship, since the law will imply a duty of care when a party seeking information from a party possessed of a special skill trusts her or him to exercise due care, and that party knew or ought to have known that reliance was being placed on their skill and judgment: Hedley Byrne & Co Ltd v Heller & Partners Ltd [1964] AC 465 at 486, 502-503, 514, 539. [7.710] The High Court has extended the Hedley Byrne doctrine to include the liability of a local council for negligent information provided by one of its employees in response to an inquiry from a member of the public.

case [7.720] The plaintiffs intended purchasing land for commercial redevelopment. Before the exchange of contracts, the plaintiffs’ solicitor telephoned the defendant Council to ask whether there were any road-widening proposals affecting the land. He was told there were not. The solicitor subsequently made a similar inquiry in writing in conjunction with an application to the Council for a certificate under the relevant legislation. The Council’s practice in dealing with such inquiries was to insert a note of any road-widening proposal at the foot of the certificate sent to the inquirer, although the Council was not legally bound to do so. In the absence of such note, it was usually assumed that no proposal existed. The certificate was sent to the plaintiffs’ solicitor without reference to any road-widening proposal. The plaintiffs proceeded with the purchase but subsequently discovered that a road-widening proposal, which substantially affected the land, did exist at the time. They were therefore unable to proceed with the redevelopment. The plaintiffs sued the Council for damages on the ground of negligent misrepresentation on the part of its employees: at 228-229, 245-247. The High Court was unanimous in upholding the plaintiffs’ claim. Thus, the plaintiffs through their solicitor were entitled to rely on the Council’s response to the written inquiry, although not on the telephone inquiry, and a duty of care arose out of the relationship which had been established. The High Court treated the Council’s failure to mention the road-widening proposal as amounting to a statement that none existed: Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 236, 242, 253, 256. [7.730] The decision in Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 makes it clear that liability for negligent misrepresentation extends to the giving of information as well as advice. Mason J stated:

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“[W]henever a person gives information or advice to another upon a serious matter in circumstances where the speaker realises, or ought to realise, that he is being trusted to give the best of his information or advice as a basis for action on the part of the other party and it is reasonable in the circumstances for the other party to act on that information or advice, the speaker comes under a duty to exercise reasonable care in the provision of the information or advice he chooses to give”: Shaddock & Associates Pty Ltd v Parramatta City Council (1981) 150 CLR 225 at 250; see further, San Sebastian Pty Ltd v Minister Administering Environmental Planning and Assessment Act 1979 (1986) 162 CLR 340 at 356, 372, discussed at [28.310]. The measure of damages recoverable for negligent misrepresentation is the amount of money necessary to restore the plaintiff to the position he or she was in before the statement, subject to the loss being reasonably foreseeable.

Duress [7.740] Duress is actual or threatened violence to, or the deprivation of liberty of, a person or their immediate family or near relatives to pressure or coerce such person into entering into a contract. A person who has been coerced into entering into a contract under duress has been deprived of their free will to act and thus there is no true consent to the agreement. A contract made under duress is voidable at the option of the party coerced, that is, he or she can elect not to be bound by the contract. It has been held that the duress need not be the sole reason for the party subjected to the duress to enter into the contract. It is sufficient if it was one of the reasons for doing so.

case [7.750] The plaintiff claimed that he had executed a deed for the purchase of the defendant’s shares in a company because of the defendant’s threats against his life. At trial it was held that the plaintiff had also been motivated to execute the deed for business reasons: at 113. The Privy Council, held that: “[T]hough it may be that [the plaintiff] would have executed the documents even if [the defendant] had made no threats and exerted no unlawful pressure to induce him to do so the threats and unlawful pressure in fact contributed to his decision to sign the documents”: Barton v Armstrong [1976] AC 104 at 120. [7.760] The Western Australia Full Supreme Court held that a contract entered into by an employee for the repayment of moneys misappropriated from her or his employer was not voidable on the ground of duress where the employer had threatened police intervention. The court held that the threat of prosecution in such a case was not enough to set aside the contract for duress where the amount was owing; and the employee received consideration by being given time to pay the debt: Scolio Pty Ltd v Cote (1992) 6 WAR 475 at 484.

Economic duress [7.770] The courts have also recognised a category of duress known as “economic duress”. 11 That expression refers to a situation where one party is induced to enter into a contract because of threats to that party’s economic interests. It has been said that in determining whether there has been economic duress the proper approach is to ask: 11

See generally MP Sindone, “The Doctrine of Economic Duress” (1996) 14 Australian Bar Review 34 (Pt 1), 114 (Pt 2); N Tamblyn, “Causation and Bad Faith in Economic Duress” (2011) 27 Journal of Contract Law 140.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

(a)

whether any applied pressure induced the party to enter into the contract; and

(b)

whether that pressure went beyond what the law is prepared to countenance as legitimate, for example unlawful threats or unconscionable conduct: Crescendo Management Pty Ltd v Westpac Banking Corp (1988) 19 NSWLR 40 at 46; see, similarly, Westpac Banking Corporation v Cockerill (1998) 152 ALR 267 at 288.

Where economic duress is established the contract will be voidable at the option of the person threatened.

case [7.780] A shipbuilding company threatened to terminate a contract for the building of a tanker unless paid increased payments following a currency devaluation. The shipowner agreed because it required the vessel for a lucrative charter it was negotiating. Some time after delivery of the vessel the shipowners sought to recover the increased payments they had been compelled to make. It was held that the shipbuilder’s threat to break the contract without any legal justification unless the owners agreed to the increased payments amounted to economic duress: at 719. The contract for the increased payments was therefore voidable and the moneys prima facie recoverable: at 720. However, it was held that because of their delay in seeking recovery of the excess payments, the owners had affirmed the contract and could not recover the payments: North Ocean Shipping Co Ltd v Hyundai Construction Co Ltd [1979] QB 705 at 721. [7.790] A further example of economic duress was a situation where a shipowner whose tanker was blacklisted by a union agreed to the payment of moneys to get the bans lifted for fear of the catastrophic economic consequences which would ensue if the demands were refused: Universe Tankships Inc of Monrovia v International Transport Workers Federation [1983] 1 AC 366 at 383, 397; see also, Hawker Pacific Pty Ltd v Helicopter Charter Pty Ltd (1991) 22 NSWLR 298 at 301-302.

case [7.795] For many years BlueScope supplied steel to a customer on informal credit terms. Bluescope subsequently required the customer to enter into a formal credit arrangement: at [13]-[14]. A creditor brought a winding-up application against the customer: at [25]. BlueScope then insisted that the customer’s director provide a guarantee in his own name if credit was to continue. If no guarantee was given BlueScope would join in the winding-up application. The customer gave the personal guarantee: at [28]. The winding-up application was subsequently held to have been an abuse of process: at [44]. The Victorian Court of Appeal held that the guarantee was not voidable for economic duress. The court held that to press a creditor by indicating in good faith a preparedness to join in a winding-up application was not improper pressure that would constitute economic duress: at [43], [90]. It was not improper pressure to threaten to support a winding-up application that was an abuse of process where all that BlueScope knew was that the application was disputed: Beerens v BlueScope Distribution Pty Ltd (2012) 39 VR 1 at [46], [90].

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Undue influence [7.800] Undue influence is the improper use of the ascendancy acquired by one person over another for the benefit of the ascendant person themselves or someone else, so that the acts of the person influenced are not, in the fullest sense of the word, their free voluntary acts. 12 Undue influence usually arises in transfers of property for no or inadequate consideration. The granting of relief on account of undue influence is founded on the principle of correcting abuses of confidence and is applied where two persons are so situated that one may obtain considerable influence over the other. Where the following special relationships exist undue influence is presumed in dealings and the onus of proving that it was not exercised is on the party denying it: (a)

parent and child; until the child has withdrawn from the influence of the parent (Lancashire Loans Ltd v Black [1934] 1 KB 380 at 404-405, 410-411, 419);

(b)

guardian and ward;

(c)

trustee and cestui que trust (beneficiary);

(d)

solicitor and client (Lloyd v Coote [1915] 1 KB 242 at 248);

(e)

religious adviser and devotee (Allcard v Skinner (1887) 36 Ch D 145 at 172, 181-182, 190); 13 or

(f)

doctor and patient.

However, the list of relationships which may give rise to a presumption of undue influence is not closed. Thus, it is open to a person to establish that a special relationship of trust and confidence has arisen such as to give rise to a presumption of undue influence against the person in the dominant position. In Johnson v Buttress (1936) 56 CLR 113 an illiterate man, a widower, was able to set aside a conveyance of his only asset to a relative upon whom he relied for advice: at 123, 138, 143. On the other hand, it has been held that there is no presumption of undue influence in the relationship of accountant/financial adviser and client: Cowen v Piggott [1989] 1 Qd R 41 at 44-45. Where a special relationship of confidence exists between the parties to a contract such as to raise a presumption of undue influence, the onus is on the person in whom the confidence is reposed to establish that the transaction in question was the “pure voluntary and well-understood” act of the person reposing the confidence, that is, that the latter’s mind or intention was not subject to any undue influence: Union Fidelity Trustee Co of Australia Ltd v Gibson [1971] VR 573 at 576. The relationship of husband and wife does not give rise to a presumption of undue influence. However, in an appropriate case a special relationship of control and dominance may be established giving rise to such presumption:

case [7.810] The plaintiff, an executor of the estate of the defendant’s deceased wife, sought a declaration that the deceased’s transfer of her share in a farming property to the defendant, which she had formerly jointly owned with him, should be set aside by reason of undue influence. There was 12 13

See F Burns, “Undue Influence Inter Vivos and the Elderly” (2002) 26 Melbourne University Law Review 499; F Burns, “Elders and Testamentary Undue Influence in Australia” (2005) 28 University of New South Wales Law Journal 145. See P Ridge, “The Equitable Doctrine of Undue Influence Considered in the Context of Spiritual Influence and Religious Faith: Allcard v Skinner Revisited in Australia” (2003) 26 University of New South Wales Law Journal 66.

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evidence that the defendant exercised considerable influence over his deceased wife through physical and mental abuse over a long period of time and he was later convicted of murdering her: at 401. It was held that although the marital relationship is not one in which undue influence is presumed, a special relationship of control and dominance existed in the particular circumstances sufficient to give rise to a presumption that the deceased had transferred her share in the property to the defendant as a result of undue influence on his part: at 403, 416-417. The evidence proved that the transfer resulted from actual undue influence by the defendant: Farmers’ Co-operative Executors & Trustees Ltd v Perks (1989) 52 SASR 399 at 417. [7.820] In the absence of establishing a special relationship giving rise to a presumption of undue influence, the onus is on the person seeking to avoid a transaction to prove that it was the result of undue influence exerted on her or him by another.

Examples of undue influence case [7.830] A father brought an action against his son for rescission of a voluntary transfer of land by the father to the son. The trial judge found that son knew that the father was, “feeble-minded, weak and incapable of transacting … business” and therefore gave judgment for the father: at 548. The High Court dismissed the appeal, holding that the evidence showed a fiduciary relationship between the father and the son. Since the father had not received any independent advice the transfer should be set aside: Spong v Spong (1914) 18 CLR 544 at 549, 553.

case [7.840] The defendant, an elderly farmer, and his only son had been customers of the plaintiff bank for many years. The son formed a company which banked at the same branch of the bank as the defendant. The defendant guaranteed the company’s overdraft and charged the whole of his farm, his sole remaining asset, to secure the amount under the guarantee: at 334-335. It was held that the court should prevent the abuse of the relationship of “confidentiality” that existed between the bank and the defendant: at 341. Since the effect of the guarantee and charge could have resulted in the defendant being left penniless in old age and the defendant had had no independent advice as to the wisdom of what he was doing, there was a breach by the bank of its fiduciary duty of care and the guarantee and charge should be set aside for undue influence: Lloyd’s Bank Ltd v Bundy [1975] QB 326 at 340, 345. [7.850] In relation to Lloyd’s Bank Ltd v Bundy [1975] QB 326, it should be borne in mind that the relationship of banker and customer is not one which ordinarily gives rise to a presumption of undue influence. On the other hand: “[A] relationship of banker and customer may become one in which the banker acquires a dominating influence. If the banker does and a manifestly disadvantageous transaction is proved, there would then be room for the court to presume that it resulted from the exercise of undue

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influence”: National Westminster Bank Plc v Morgan [1985] AC 686 at 707. In the latter case, a wife had consented to signing a mortgage over her home, which she owned jointly with her husband, to secure short-term bridging finance advanced by the bank to pay out an earlier mortgagee who was pressing for payment: at 701. The House of Lords held that the wife had failed to establish undue influence on the part of the bank manager: at 709.

Effect of undue influence [7.860] Undue influence renders a contract voidable at the option of the “weaker” party. If an unreasonable length of time is allowed to elapse after the entire cessation of the influence, the right of a person to have a transaction set aside on the ground of undue influence may be lost: Allcard v Skinner (1887) 36 Ch D 145 at 186, 189, 193. In New South Wales, the Contracts Review Act 1980 (NSW) empowers a court to give relief in respect of a contract, or a provision of a contract, which is found by the court to have been “unjust” (defined as including “unconscionable, harsh or oppressive”) in the circumstances relating to the contract at the time it was made. One of the factors the court is to take into account in determining whether the contract or one of its provisions is “unjust” is “whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief” under the Act: s 9(2)(j). Thus, in New South Wales relief is now likely to be sought under the Contracts Review Act 1980 (NSW) rather than on the common law principles of duress or undue influence.

Unconscionable contracts At common law [7.870] The general rule is that the court will not grant relief to a party merely because the contract they have entered into operates harshly or oppressively against them. For example, the High Court gave effect to an agreement notwithstanding that in the opinion of one of the judges it was: “… perhaps the most wordy, obscure and oppressive contract that I have come across … I am sure that not one oppressive provision which could be found was omitted. The contract is so outrageous that it is surprising that any contractor would undertake work for the Railways Commissioner upon its terms”: South Australian Railways Commissioner v Egan (1973) 130 CLR 506 at 512.

The High Court's decision in Amadio's case [7.880] In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, the High Court had the opportunity of clarifying the principles to be applied in determining whether a contract should be set aside on the ground that it was unconscionable. It was held that a court in exercising its equitable jurisdiction could set aside a transaction as unconscionable whenever one party by reason of some condition or circumstance is placed at a special disadvantage as against another and unfair or unconscientious advantage is then taken of the opportunity thereby created: at 467, 474.

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case [7.890] In Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447, the plaintiffs, Mr and Mrs Amadio, were an elderly Italian couple of little formal education and limited knowledge of the English language. They signed a mortgage to the defendant bank over a block of shops as security for payment of its debts by one of their son’s building companies: the mortgage included a guarantee under which the plaintiffs became liable for the total present and future indebtedness of the company. At the time of signing the mortgage/guarantee, the plaintiffs believed the company to be prosperous, but it was actually in serious financial difficulty: at 451. Earlier on the day of their signing the mortgage/guarantee, the plaintiffs’ son, who had never read its terms, had led them to believe that their liability was limited to $50,000 and was to run for no longer than six months. Later on the same day, the manager of the son’s bank called on the plaintiffs at their home with the mortgage/guarantee contract. There was little discussion. The plaintiffs did not try to read the document, nor did the manager purport to explain its meaning or effect, except to correct Mr Amadio’s apparent misunderstanding that the mortgage/guarantee was only for six months: at 453. Having obtained the plaintiffs’ signatures, the manager left without leaving them a copy of the agreement: at 473. The son’s company ultimately went into liquidation and the bank claimed nearly $240,000 from the plaintiffs under the terms of the mortgage/guarantee: at 454. The plaintiffs sought to have the contract set aside. It was held by a majority of the High Court that the mortgage/guarantee should be set aside on the ground of unconscionable dealing. The plaintiffs were in a position of special disadvantage in that they were mistaken as to the extent of their liability under the agreement and as to the financial circumstances of their son’s company, which far from being prosperous as they believed, was insolvent and being propped up by the bank which had inadequate security to cover its indebtedness. In consequence, the plaintiffs were ill-informed as to the seriousness of their position in signing the mortgage/guarantee which spelt financial ruin for them but ameliorated the position of the bank. Their age and background and reliance on their son’s misleading advice contributed to their position of special disadvantage: at 464, 476. Although the bank may not have had full and actual knowledge of the plaintiffs’ disability, it knew enough to be put on inquiry as to whether Mr and Mrs Amadio appreciated the nature of the contract they were being asked to sign and the bank’s failure to make further inquiry as to whether the transaction had been properly explained to them amounted to wilful ignorance: at 466-467, 479. Thus, in Mason J’s view: “It must have been obvious to [the bank manager] … that the transaction was improvident from the viewpoint of the [plaintiffs]. In these circumstances it is inconceivable that the possibility did not occur to [the bank manager] that the [plaintiffs’] entry into the transaction was due to their inability to make a judgment as to what was in their best interests, owing to their reliance on their son, whose interests would inevitably incline him to urge them to sign the instrument put forward by the bank”: at 466-467. [7.900] In the words of Mason J in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 at 467, the general principle to be applied in such cases is that: “[I]f A, having actual knowledge that B occupies a situation of special disadvantage in relation to an intended transaction, so that B cannot make a judgment as to what is in his own interests, takes unfair advantage of his (A’s) superior bargaining power or position by entering into that transaction, his conduct in so doing is unconscionable. And if, instead of having actual knowledge of that situation, A is aware of the possibility that that situation may exist or is aware of facts that would raise that possibility in the mind of any reasonable person, the result will be the same”.

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The High Court in Amadio’s case recognised that it was impossible to definitively describe all circumstances which would give rise to a situation of special disadvantage which if unfairly taken advantage of may lead to relief being granted by the court on the ground of unconscionable dealing. However, the High Court approved the dicta of Fullagar J in the earlier High Court decision in Blomley v Ryan (1956) 99 CLR 362 at 405: “The circumstances adversely affecting a party, which may induce a court of equity either to refuse its aid or to set a transaction aside, are of great variety and can hardly be satisfactorily classified. Among them are poverty or need of any kind, sickness, age, sex, infirmity of body or mind, drunkenness, illiteracy or lack of education, lack of assistance or explanation where assistance or explanation is necessary. The common characteristic seems to be that they have the effect of placing one party at a serious disadvantage vis-à-vis the other.” A further example of relief being granted in respect of unconscionable conduct is the decision of the High Court in Louth v Diprose (1992) 175 CLR 621:

case [7.910] The respondent, a practising solicitor, made a gift of moneys to the appellant to enable her to buy a house in circumstances which the court considered to be an unconscientious exploitation by the appellant of the respondent’s infatuation and emotional dependence on her: at 649. The High Court dismissed an appeal by the appellant against an order that she transfer the house to the respondent: Louth v Diprose (1992) 175 CLR 621 at 626, 633, 638, 642-643.

case [7.915] In Mackintosh v Johnson (2013) 37 VR 301 a 73-year-old man and a 45-year-old woman were in an intimate relationship. During the relationship he bought a house in her name and paid large amounts to support her business: at [3]. After the relationship broke down he sought a transfer of title to the house and repayment of the money. The Victorian Court of Appeal held that the facts did not establish unconscionable conduct. The man’s infatuation and lavish spending did not constitute a special disadvantage making him unable to make decisions in his own best interests: at [77]. The Court distinguished Louth v Diprose (1992) 175 CLR 621. In the Louth case the recipient had created a false atmosphere of crisis. There was no similar circumstance in this case: at [79]. In Louth the solicitor had given away most of his assets though he had three dependent children: at [80]. In this case the plaintiff was wealthy and could easily afford to make these gifts: at [26]. The payments were not such a large proportion of his assets as to indicate an emotional dependence: at [82]. [7.920] In Bridgewater v Leahy (1998) 194 CLR 457, the High Court held that it was unconscionable for a nephew to retain the benefit of a deed of forgiveness executed by his uncle, in view of the uncle’s emotional attachment to and dependency upon the nephew: at [122]. 14

case [7.925] K lost over $20 million while gambling at a Victorian casino over a 14-month period. He had a compulsion to gamble, though he was able to control that compulsion. The High Court rejected 14

See A Finlay, “Can We See the Chancellor’s Footprint?: Bridgewater v Leahy” (1999) 14 Journal of Contract Law 265.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

his unconscionability claim against the casino. Gambling was a rare commercial activity in which each party inherently sought to cause financial damage to the other party: at [25]. Equity did not characterise as victimisation the ordinary operation of a lawful commercial activity: at [26]. If a casino encouraged a pensioner to cash their pension cheque for gambling purposes, that would constitute victimisation. If a gambler was drunk or under an incapacity, that could also constitute victimisation: at [30]. By contrast, K was a wealthy “high roller”. He did not suffer a constant compulsion that would have prevented him from staying away from the casino: at [23]. He was able to stay away from the casino when he so wished: at [33]. He had gone to great lengths to persuade the casino that his previous gambling problems were now past: at [36]. Equitable intervention required “proof of a predatory state of mind”, which had not been established here. Indifference to the welfare of the other party to an arm’s length commercial transaction was not enough. Victimisation or exploitation was required: Kakavas v Crown Melbourne Ltd (2013) 250 CLR 392 at [161]. 15 [7.926] The provisions of the Australian Consumer Law relating to unconscionable conduct are discussed in Chapter 17.

Guarantees by married women of their husbands' debts [7.930] A special principle of equity was applied to a guarantee given by a married woman to secure her husband’s business debts. If a married woman’s consent to become a guarantor for her husband’s debt was procured by her husband without her understanding its essential effect and the creditor accepted the guarantee without taking steps to inform the wife of her obligations, the guarantee could be set aside: Yerkey v Jones (1939) 63 CLR 649 at 683, 685. 16 There was considerable uncertainty whether this principle continued to apply, in view of the High Court’s decision in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447. However, in Garcia v National Australia Bank Ltd (1998) 194 CLR 395, the majority of the High Court essentially affirmed this principle of equity. The facts of the Garcia case were as follows:

15

See R Bigwood, “Still Curbing Unconscionability: Kakavas in the High Court of Australia” (2013) 27 Melbourne University Law Review 463; LK Robinson, “The Conscience of the King: Kakavas v Crown Melbourne Ltd” (2013) 17 University of Western Sydney Law Review 87; W Swain, “The Unconscionable Dealing Doctrine: In Retreat?” (2014) 31 Journal of Contract Law 255; S Almonte, “Kakavas v Crown Melbourne Ltd: Is the High Court Restricting the Doctrine of Unconscionable Conduct?” (2014) 16 University of Notre Dame Australia Law Review 193.

16

See J O’Donovan, “The Retreat from Yerkey v Jones: From Status Back to Contract” (1996) 26 University of Western Australia Law Review 309; J Edelman and E Bant, “Setting Aside Contracts of Suretyship: The Theory and Practice of Both Limbs of Yerkey v Jones” (2004) 15 Journal of Banking and Finance Law and Practice 5; YN Vrodos, “Revisiting the ‘Wives’ Special Equity’: An Exploration of the Volunteer Requirement” (2015) 40 University of Western Australia Law Review 244.

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case [7.940] In November 1987, the appellant wife had signed a guarantee in favour of the respondent bank guaranteeing repayment to the bank of loans made to her husband’s gold trading company. The guarantee was secured by an “all moneys” mortgage over the family home. The mortgage had been given to the bank by the husband and wife some eight years prior to the wife signing the guarantee in dispute. In June 1990, the appellant wife commenced proceedings to have the guarantee and mortgage set aside. The respondent bank claimed $327,189.69 under the guarantee and sought possession of the mortgaged home. In the meantime, the husband’s company had been wound up and the couple divorced: at [1]-[6]. The High Court held that the guarantee and mortgage should be set aside: Garcia v National Australia Bank Ltd (1998) 194 CLR 395. 17 [7.950] Gaudron, McHugh, Gummow and Hayne JJ held that the principle expressed in Yerkey v Jones (1939) 63 CLR 649 was regarded as a particular application of accepted equitable principles which are still relevant. They said that the rationale of this principle was “not to be found in notions based on the subservience or inferior economic position of women” nor on their “vulnerability to exploitation because of their emotional involvement” but rather on the “trust and confidence” between marriage partners: at [20]-[21]. In a marriage relationship, one partner, often the wife, may well leave business judgments to the other partner. Accordingly, business decisions “may be made with little consultation between the partners” and the “explanation of a particular transaction” given by one spouse to the other may be “imperfect, incomplete” or “simply wrong”: at [21]. The majority considered that Yerkey v Jones made it “unconscionable” to enforce a guarantee in the following combination of circumstances (Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at [31]): (a)

the surety (that is, the wife) did not understand the effect of the transaction;

(b)

the surety was a volunteer (in the sense that she gained no financial benefit from the contract, the performance of which she agreed to guarantee);

(c)

“the lender is to be taken to have understood that, as a wife, the surety may repose trust and confidence in her husband in matters of business and therefore … that the husband may not fully and accurately explain the … effect of the transaction” to her; and

(d)

“the lender did not itself take steps to explain the transaction to the wife or find out that a stranger had explained it to her”.

The position was summed up in the joint majority judgment by the statement that the principle in Yerkey v Jones: “… depends upon the surety being a volunteer and mistaken about the purport and effect of the transaction, and the creditor being taken to have appreciated that because of the trust and confidence between surety and debtor the surety may well receive from the debtor no sufficient explanation of the transaction’s purport and effect. To enforce the transaction against a mistaken volunteer when the creditor, the party that seeks to take the benefit of the transaction, has not itself 17

See S Bogan, “Garcia v National Australia Bank Ltd: Resurrecting the Corpus of Yerkey v Jones” (1998) 21 University of New South Wales Law Journal 845; T Cockburn, “Yerkey v Jones: The Phoenix’s New Clothes” (1998) 9 Journal of Banking and Finance 308; S Hepburn, “The Yerkey Principle and Relationships of Trust and Confidence: Garcia v National Australia Bank” (1998) 4 Deakin Law Review 99; T Cockburn, “Garcia One Year On – A Softly Softly Approach” (2000) 4 Flinders Journal of Law Reform 251; E Stone, “The Distinctiveness of Garcia” (2006) 22 Journal of Contract Law 170; C Chew, “Rethinking the Special Equity Rule for Wives: Post Garcia, Quo Vadis, Where to From Here?” (2007) 19 Bond Law Review 62.

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explained the transaction, and does not know that a third party has done so, would be unconscionable”: Garcia v National Australia Bank Ltd (1998) 194 CLR 395 at [33]. The contention by the respondent bank that Yerkey v Jones no longer applied because of the High Court’s decision in Commercial Bank of Australia Ltd v Amadio (1983) 151 CLR 447 was rejected since there was nothing in Amadio’s case to suggest that it was intended to overrule Yerkey v Jones, and it was apparent from statements in Amadio’s case that it was not “intended to mark out the boundaries of the whole field of unconscionable conduct”: at [28[-[29]. Furthermore, the unconscionable conduct in Amadio’s case was very different from the principle in Yerkey v Jones which did not depend on the creditor having notice of some unconscionable dealing between the husband as borrower and the wife as surety at the time the guarantee was taken: at [30]-[31]. Significantly, the majority judgment foreshadowed the possibility of the principle in Yerkey v Jones being applied in the future to other relationships, that is, “to long term and publicly declared relationships short of marriage between members of the same or opposite sex” and where a husband acted as surety for his wife. However, it was stated that such potential extension of the principle was not a question which needed to be considered in the case before the court: at [22]. The Australian Capital Territory Court of Appeal subsequently declined to extend this principle to guarantees by parents of their children’s debts: Watt v State Bank of New South Wales Ltd [2003] ACTCA 7 at [20]. A creditor may avoid the operation of this equity by providing a sufficient explanation of the nature of the transaction. “The level of explanation needed to be undertaken by the creditor will depend on the nature of the transaction, the degree of risk associated with the transaction, the sophistication of the vulnerable party and the nature of the relationship that party enjoys with the spouse. The explanation need not disabuse the vulnerable party of all misapprehensions”: Schultz v Bank of Queensland Ltd [2015] QCA 208 at [33], [35] per Boddice J.

case [7.951] A wife guaranteed her husband’s debts relating to his investment in a tax minimisation scheme: Agripay Pty Ltd v Byrne [2011] 2 Qd R 501 at [2]. The husband and wife held a joint superannuation fund. The Queensland Court of Appeal held that the guarantee should be set aside. McMurdo P held that the wife was a volunteer. A guarantor will not be a volunteer where they will receive a benefit that is direct or immediate. In this case any possible benefit for the joint superannuation fund was indirect and remote in time. The tax minimisation benefits of the scheme were for the husband’s benefit: at [9]-[11]. The wife understood the concept of a guarantee: at [13]. However, she did not understand her actual potential liability under this particular guarantee. She was mistaken about the amount of the debt and the term of the loan. She was not aware of the large management fees payable: at [18]. She thus did not understand critical details of the transaction guaranteed: at [20]. She did not receive independent advice before signing the guarantee: at [18]. McMeekin J held that the wife was a volunteer, though there were indirect benefits for her from the transaction: at [75], [78]. In the case law spouses were relieved from their obligations under guarantees where they did not realise that the document was a guarantee or were mistaken “in a material way” about their obligations under the guarantee: at [102]. In this case the wife was unaware of all important details relating to the transaction: at [143]. The lender did not inform her of important matters relevant to her obligations, nor did it make sure that she was otherwise informed

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of those matters: at [132]. The lender could have ensured that the guarantee was valid by ensuring that she was properly informed: at [146].

Under the Australian Consumer Law [7.960] The Australian Consumer Law 18 contains important provisions prohibiting persons from engaging in “unconscionable conduct” (ss 20 – 22). These provisions are discussed in Chapter 17.

Under the National Credit Code [7.970] The National Credit Code is set out in Sch 1 of the National Consumer Credit Protection Act 2009 (Cth). The Code provides for the reopening of a credit transaction where the court is satisfied that in the circumstances relating to the credit contract, mortgage or guarantee at the time it was entered into, it was unjust: National Credit Code, s 76(1). “Unjust” includes “unconscionable, harsh or oppressive”: National Credit Code, s 204(1). The provisions apply to all personal (that is, non-business credit): see further [19.590].

New South Wales Contracts Review Act 1980 Application of the Act [7.980] The basic purpose of this legislation is to enable persons who have entered into a contract containing harsh or excessively onerous terms to obtain relief on application to the court. 19 Thus, where a contract is found by the court to have been “unjust” (defined as including “unconscionable, harsh or oppressive”) in the circumstances relating to the contract at the time it was made, the court is empowered to grant the following kinds of relief: (a)

refuse to enforce any or all of the provisions of the contract;

(b)

declare the whole or part of the contract void;

(c)

vary the whole or part of any provision of the contract; or

(d)

order the execution of an instrument varying or terminating the operation of an instrument transferring title to land or creating an estate or interest in land: Contracts Review Act 1980 (NSW), s 7.

In determining whether a contract or a provision of a contract is “unjust”, the court is to have regard to the public interest and to all the circumstances of the case including, where relevant, the following matters: (a)

18 19

whether or not there was any material inequality in bargaining power between the parties to the contract; The Australian Consumer Law is Sch 2 to the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)): see Chapter 17. See generally TM Carlin, “The Contracts Review Act 1980 (NSW) – 20 Years On” (2001) 23 Sydney Law Review 125; B Zipser, “Unjust Contracts and the Contracts Review Act 1980 (NSW)” (2001) 17 Journal of Contract Law 76; FR Burns, “Statutory ‘Unconscionability’: The Application of the Contracts Review Act 1980 (NSW) to the Elderly” (2005) 21 Journal of Contract Law 51; H Saunders, “Relief from Unconscionable Contracts: The Contracts Review Act 1980 (NSW) and the ‘Unwritten Law’” (2007) 29 Australian Bar Review 290; M Tibbey, “Undoing Unjust Contracts: Developments in Jurisprudence under the Contracts Review Act 1980 (NSW)” (2009) 32 Australian Bar Review 182; W Covell, K Lupton and J Forder,Covell and Lupton’s Principles of Remedies (6th ed, LexisNexis, Sydney, 2015), Ch 16.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

(b)

whether or not prior to or at the time the contract was made its provisions were the subject of negotiation;

(c)

whether or not it was reasonably practicable for the party seeking relief under the Act to negotiate for the alteration of or to reject any of the provisions of the contract;

(d)

whether or not any provisions of the contract impose conditions which are unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract;

(e)

whether or not – (i) any party to the contract (other than a corporation) was not reasonably able to protect their interests; or (ii) any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party whom they represented – because of their age or the state of their physical or mental capacity;

(f)

the relative economic circumstances, educational background and literacy of – (i) the parties to the contract (other than a corporation); and (ii) any person who represented any of the parties to the contract;

(g)

where the contract is wholly or partly in writing, the physical form of the contract, and the intelligibility of the language in which it is expressed;

(h)

whether or not and when independent legal or other expert advice was obtained by the party seeking relief under the Act;

(i)

the extent (if any) to which the provisions of the contract and their legal and practical effect were accurately explained by any person to the party seeking relief under the Act, and whether or not that party understood the provisions and their effect;

(j)

whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under the Act – (i) by any other party to the contract; (ii) by any person acting or appearing or purporting to act for or on behalf of any other party to the contract; or (iii) by any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract;

(k)

the conduct of the parties to the proceedings in relation to similar contracts or courses of dealing to which any of them has been a party; and

(l)

the commercial or other setting, purpose and effect of the contract: s 9(2).

A person is deemed to have represented a party to a contract for the purposes of (e) and (f) (above) if they represented or assisted the party to a significant degree in negotiations prior to or at the time the contract was made: s 9(3). The type of asset which is used as security has also been treated as relevant in determining whether a contract is unjust, such as where the asset is the borrower’s home rather than an investment property, as loss of a home generally gives rise to special hardships: Kowalczuk v Accom Finance (2008) 77 NSWLR 205 at [126]. In determining whether a contract or a provision of a contract is unjust, the court is not to have regard to any injustice arising from circumstances that were not reasonably foreseeable at the time when the contract was made: s 9(4). However, in deciding whether to grant relief in respect of a contract or one of its terms that is found to be unjust, the court may have regard to the conduct of the parties in relation to the performance of the contract since it was made: s 9(5). The court may grant relief notwithstanding that the contract has been fully executed: s 14. The court may hold that a contract was unjust despite the other party being unaware of the circumstances that cause that injustice: Perpetual Trustee Co Ltd v Khoshaba (2006) 14 BPR 26 at

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[94]-[96]; Kowalczuk v Accom Finance (2008) 77 NSWLR 205 at [86]. A court may hold that a contract was unjust even though it does not violate any equitable principle, since relief is not restricted to equitable principles: Kowalczuk at [164]. The Supreme Court of New South Wales is empowered to give the relief provided by the Act. The District Court has also been invested with the same jurisdiction as the Supreme Court in respect of contracts where the consideration does not exceed the jurisdictional limits of the District Court: District Court Act 1973 (NSW), s 134B.

Restrictions on the grant of relief [7.990] The Crown, a public or local authority, or a corporation 20 cannot be granted relief under the Act: Contracts Review Act 1980 (NSW), s 6(1). Furthermore, a person who entered into the contract in question in the course of or for the purposes of a trade, business or profession carried on or proposed to be carried on by them cannot be granted relief under the Act: s 6(2). However, a person may be granted relief in respect of an unjust contract entered into for the purpose of a farming undertaking: s 6(2). In essence, then, the ordinary “consumer” of goods, services, or land for personal or domestic use and the unincorporated farmer can seek relief under the Act but not companies, traders or business people generally. The Act also does not apply to contracts of service to the extent that they are made in conformity with an industrial award: s 21(1). The Act does not operate where no contract was formed, such as where a party successfully invokes the plea of non est factum: Ford v Perpetual Trustees Victoria Ltd (2009) 75 NSWLR 42 at [91].

Other provisions [7.1000] Application for relief must be commenced within two years of the making of the contract, or within three months before or two years after the time for the exercise of performance of any power or obligation under the contract, or during the pendency of maintainable proceedings relating to the contract: Contracts Review Act 1980 (NSW), s 16. Rights under the Act cannot be excluded and it is an offence to submit for signature a contract which purports to exclude, restrict or modify the application of the Act: ss 17, 18. However, the Act does not apply to genuine compromises of claims for relief where the claim was asserted before the making of the contract: s 17(4). The remedies under the Act are additional to any other law providing relief against unjust contracts or unfair contract terms: s 22. Where on the application of the Minister or the Attorney-General the Supreme Court is satisfied that a person has embarked, or is likely to embark, on a course of conduct leading to the formation of unjust contracts, it may prescribe the terms upon which such person may enter into contracts of a specified class: s 10.

Examples of the application of the Contracts Review Act 1980 [7.1010] The following are examples of the extensive body of case law on applications for relief under the New South Wales Contracts Review Act 1980 (NSW):

20

Strata title corporate bodies and the like are excluded from the definition of “corporation” for the purposes of the Act where the structures involved are primarily intended to be occupied as dwellings. Accordingly, corporate bodies of this special kind can be granted relief under the Act.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

case [7.1020] K contracted to sell land “at a gross undervalue on inordinately generous terms” to S, a neighbour to whom K had turned for trust and friendship while undergoing an emotional crisis. The sale price was approximately half the true value of the land, with a 10-year mortgage back to K at a low rate of interest: at 228. This combined with K’s illiteracy, lack of adequate, independent advice and certain misconceptions as to what had been agreed, led the court to hold that the transaction was unjust and declare the contract void: Sharman v Kunert (1985) 1 NSWLR 225 at 230.

case [7.1030] W, a woman of limited business experience, gave a mortgage over her home to secure a loan made by AGC, a finance company, primarily to assist a business which employed her husband and which was in financial difficulty, and also to pay out an existing mortgage over the home which was in arrears. The business failed and other guarantors of the loan had been made bankrupt, so AGC sought repayment of the loan from W and, in particular, to enforce the mortgage she had given over her home: at 622-625. A majority of the New South Wales Court of Appeal held that in the circumstances the mortgage was not “unjust” within the meaning of the Act and refused to intervene. The fact that W had entered into the mortgage against the advice of an accountant (her son), and a barrister friend was of particular significance: West v AGC (Advances) Ltd (1986) 5 NSWLR 610 at 627.

case [7.1040] K orally agreed to guarantee a loan to her son-in-law’s company up to a limit of $100,000. However, the written contract of guarantee which she signed provided for an unlimited guarantee: at 483. At first instance, an order was made that the guarantee should not be enforced on the ground that it was misleading as to its true effect: at 490. On appeal, a majority of the New South Wales Court of Appeal allowed the appeal, upholding the validity of the guarantee up to the limit orally agreed by K: SH Lock (Aust) Ltd v Kennedy (1988) 12 NSWLR 482 at 487, 492.

case

[7.1050] The plaintiff, who was recently widowed, was a passenger on the defendant’s cruise ship which sank due to negligent navigation for which the defendant accepted liability. The plaintiff suffered physical injury and nervous shock as a result of the sinking. The defendant offered the plaintiff an ex gratia payment of $4,786 in settlement of her claim upon her signing a release form. The plaintiff accepted the settlement and executed the release, which included a release from personal injury claims. The plaintiff subsequently brought proceedings for personal injury and loss of baggage and personal effects. The New South Wales Court of Appeal, by a majority, upheld the trial judge’s decision that the release was “unjust” in the circumstances having regard, inter alia, to the substantial disparity between the settlement figure ($4,786) and the damages to which the plaintiff was found to be entitled ($56,182); the material inequality in bargaining power between the parties; and the diminution in the plaintiff’s capacity to protect her interests owing to her physical and emotional condition: at 9, 21. An order was made declaring the release void and awarding the plaintiff damages:

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Baltic Shipping Co v Dillon (1991) 22 NSWLR 1; this aspect of the case was not affected by the later decision of the High Court, Baltic Shipping Co v Dillon (1993) 176 CLR 344, see [12.240].

case [7.1060] K borrowed money for a short term with a very high interest rate applying where the borrower defaulted. The dramatic combined effects of the compounding of interest and the higher interest rate applying upon default are apparent in the following extract from the Court’s decision: “The provision for compounding of interest at monthly rests … is one that, particularly when applied at the higher rate, has the potential to be utterly crushing to a borrower. …. the amount of money actually advanced concerning the … loan was $766,650 … [the lender] Accom has received in return a total of $1,231,261.80 in the form of principal and interest within 10 months (in itself a full return of its capital and of the order of 60% profit over the 10 months) yet [the borrower] Kowalczuk still owed $5.1 million at the time of the hearing of this case …. There are some injustices too plain to need elaboration”: Kowalczuk v Accom Finance (2008) 77 NSWLR 205 at [175]. The Court held that the higher rate of interest applying upon default was unjust since the contract had otherwise already provided for the recovery of all losses and expenses resulting from a default. The higher rate of interest thus did not protect any legitimate interest of the lender: at [166], [169]. A provision for the compounding of interest was also unjust so far as it applied to the higher rate applying upon default: at [176].

case [7.1070] For many years Mr and Mrs Karamihos had operated a restaurant in Marrickville. They borrowed $1.2 million to refinance a loan secured over their house. They used the funds to pay out an existing loan. The remainder of the funds were used for their restaurant and as a gift to their daughter: at [1]. As they were in their early 70s and thus had a limited working life ahead of them, while seeking finance from the bank they indicated that their “exit strategy” was the sale of their Marrickville property. Their estimate of the value of that property greatly exceeded the amount that was eventually obtained: at [42]–[44]. After they defaulted on the loan the bank sought possession of their home and repayment of the outstanding debt: at [2]. The Court held that Mr and Mrs Karamihos had not proven that their estimate of the value of the property was incorrect when made. As borrowers seeking to be relieved from a loan obligation it was for them to prove any facts that were relied upon to show that the contract was unjust: at [52]. In the absence of evidence of the value of the property at the time of the loan it had not been shown that if the bank had verified the value of the property it would have realised that the exit strategy was not viable: at [64]. Furthermore, they had not followed their own exit strategy. Their decision to lease rather than sell the Marrickville property had been financially damaging: at [65]. Their age did not in itself indicate an inability to look after their own interests: at [63]. Bendigo and Adelaide Bank Ltd v Karamihos [2014] NSWCA 17 at [63]. The High Court refused special leave to appeal from this decision: Karamihos v Bendigo and Adelaide Bank Ltd [2014] HCASL 176.

chapter 7 Consent of Parties: Mistake, Misrepresentation and Unconscionable Contracts

Further reading See contract texts listed at the end of Chapter 2.

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chapter 8

Legality of Object [8.20] Illegality under statute law ............................................................................................................................ 136 [8.170] Illegality at common law .............................................................................................................................. 140 [8.520] Consequences of illegal contracts and void contracts................................................................. 151

Introduction [8.10] A further essential element for a valid contract is the legality of its objective, that is, it must concern the doing of something which is not prohibited by law. Conversely, if the “contract” does involve doing something prohibited by law, then it is generally referred to as an “illegal” contract and, as such, is invalid and unenforceable. The illegality of a contract may arise from: (a) statute or (b) the common law. Contracts that are broadly referred to as “illegal” are generally recognised as falling into two categories: (a) those which are so serious as to be regarded as illegal in the strict or narrow sense (for example, a contract to commit a crime); and (b) those which are less reprehensible and are regarded as void (for example, a contract in restraint of trade). Whether a contract is categorised as illegal in the strict sense, or simply void, it is unenforceable. The topic of illegality and contracts is considered under the following headings: 1.

Illegality under Statute Law.

2.

Illegality at Common Law.

3.

Consequences of Illegal Contracts and Void Contracts.

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Illegality under statute law Contracts illegal by statute [8.20] Many business activities are regulated by statutory provision requiring, for example, a licence to be obtained before engaging in a particular activity. Often, non-compliance with such provisions is made an offence under the particular statute. The question which may then arise is the effect of such non-compliance on a contract entered into with another party, that is, is such contract prohibited by the statute in question? If it is, then “the court will not enforce a contract which is expressly or impliedly prohibited by statute”: St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267 at 283. In Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 413, Gibbs ACJ outlined four different ways in which a statute may render a contract illegal: “(1) The contract may be to do something which the statute forbids; (2) The contract may be one which the statute expressly or impliedly prohibits; (3) The contract, although lawful on its face may be made in order to effect a purpose which the statute renders unlawful; or (4) The contract, although lawful according to its own terms, may be performed in a manner which the statute prohibits”. See also Burmic Pty Ltd v Goldview Pty Ltd [2003] 2 Qd R 477 at [17].

Express prohibition [8.30] If a contract is expressly prohibited by statute then it is illegal and unenforceable.

case [8.40] A statutory order provided that a person was not to buy or sell or otherwise deal in linseed oil without a licence issued by a government official. The defendant told the plaintiff, untruthfully, that he had the necessary licence and contracted to purchase a quantity of linseed oil from the plaintiff. The defendant later refused to take delivery and the plaintiff sued him for damages for breach of contract. It was held that the plaintiff’s action failed. The order clearly prohibited the sale of linseed oil to an unlicensed purchaser and therefore expressly prohibited the contract in question. Accordingly, the contract was illegal and unenforceable. “The contract was absolutely prohibited; and in my view, if an act is prohibited by statute for the public benefit, the Court must enforce the prohibition, even though the person breaking the law relies upon his own illegality”: Re Mahmoud & Ispahani [1921] 2 KB 716 at 729 per Scrutton LJ; see also Chitts v Allaine [1982] Qd R 319 at 327.

Implied prohibition [8.50] It is common for a statute to require or proscribe certain conduct and provide a penalty for non-compliance. The problem is then to determine whether non-compliance was also intended to affect a contract involving such conduct: if so, then the contract may be regarded as being impliedly prohibited by the statute and therefore illegal and unenforceable. On the other hand, the statute may be construed as limiting the sanction for non-compliance to the penalty or fine specified in the statute but otherwise leaving the validity of a contract involving the conduct unimpaired.

chapter 8 Legality of Object

The issue arose for consideration by the High Court in Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410:

case [8.60] The respondent company lent the first appellant $132,600, repayment of which was secured by a mortgage which incorporated a guarantee given by the other appellants. Default having been made in repayment of the loan, the respondent sued the appellants on the personal covenants in the mortgage. The appellants contended that the mortgage (including the guarantee) was illegal and void on the ground that the respondent had been carrying on the business of banking without authorisation under the Banking Act 1959 (Cth). The Act provided that a corporation was not to carry on a banking business unless it was authorised to do so and provided a penalty of $10,000 per day for contravention of this provision. It was agreed between the parties that the lender was carrying on the business of banking in contravention of the Act. The question to be determined was whether such offence rendered the contract between the parties illegal and unenforceable: at 412. The High Court held that having regard to the scope and object of the provision prohibiting the carrying on of any banking business without authority, and in particular to the heavy penalty provided for its contravention, the provision did not upon its proper construction either expressly or impliedly prohibit such a loan on mortgage. Accordingly, the respondent lender was entitled to enforce the mortgage: Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 at 415, 426, 430, 434, 436. [8.70] The validity of the contract is determined by statutory interpretation: Master Education Services Pty Ltd v Ketchell (2008) 236 CLR 101 at [11]]; Gnych v Polish Club Ltd (2015) 255 CLR 414 at [36]-[37]. In determining the effect on a contract of conduct proscribed by statute, the courts have regard to the intention of the legislation, that is, what it was intended to achieve. This is particularly so where it is apparent that the statute was aimed at protecting the public, or furthering some public policy objective.

case [8.80] A Queensland statute provided that it was an offence to sell a second-hand motor vehicle without a certificate of roadworthiness. It was agreed between the seller of a second-hand vehicle and the buyer that the seller need not obtain the requisite certificate but that the buyer would do so. The seller sought to recover the balance of the purchase price. The court said that the whole of the statute was concerned to ensure that motor vehicles for use on the road are roadworthy. The clear implication of the Act was to prohibit contracts for the sale of second-hand vehicles where a roadworthiness certificate had not been obtained. Accordingly, it was held that the contract was impliedly prohibited by the Act and therefore unenforceable: Buckland v Massey [1985] 1 Qd R 502 at 512.

case

[8.90] Another statute provided that it was an offence for a registered builder to perform general building construction when not registered as a general builder and a monetary penalty was prescribed for non-compliance. A registered builder performed work in breach of this provision: at 22. It was held that non-compliance with the statutory provision by the builder did not render void and

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unenforceable his contractual liability for the loss caused by his defective workmanship. The builder was liable for damages for his faulty workmanship. To have decided otherwise would not have been consistent with the “statutory purpose of protecting those for whom building work is performed”: Gaffney v Ryan [1995] 1 Qd R 19 at 23. [8.100] It was held that representations which constituted misleading or deceptive conduct in contravention of s 52 of the former Trade Practices Act 1974 (Cth) did not render a contract entered into as a result of such conduct illegal and unenforceable. The reason was that the Act itself provided a wide range of remedies for contravention of s 52, particularly s 87 which empowered the court to declare a contract which had come into existence as a result of such conduct to be void: Bank of America Australia Ltd v Ceda Jon International Pty Ltd (1988) 17 NSWLR 290 at 295-296. It is likely that the court will give a similar construction to the corresponding provisions in the Australian Consumer Law, ss 18 and 243 respectively.

case [8.105] State liquor legislation provided that a licensee must not lease any part of licensed premises except with the approval of the liquor authority: at [1]. Violation of this provision was punishable by a fine: at [83]. A licensee leased part of its premises to a restaurant without obtaining the approval of the authority: at [2]. The High Court held that this provision of the liquor legislation was directed at the licensee’s conduct in granting a lease, not the rights under the contract between the licensee and the restaurant: at [41]. The “adverse consequences” for the innocent party (the restaurant) was a factor weighing against attributing to the legislature an intention to render the contract void: at [45]. The offence under the liquor legislation occurred when the licensee granted the lease. Carrying out the lease was not prohibited: at [46]. The punishment for the transgression was a fine: at [47]. While the authority had power to cancel a liquor licence, it could leave the existing situation unchanged. If the violation of the statute “automatically” voided the lease, that would “pre-empt” the authority’s power of supervision of licensees: Gnych v Polish Club Ltd (2015) 255 CLR 414 at [53].

Contracts illegal as formed or performed [8.110] A statutory prohibition may make a contract: (a)

illegal as formed; or

(b)

illegal as performed.

Contracts illegal as formed [8.120] A contract will be illegal as formed where it was prohibited, either expressly or impliedly, from its inception. An example of a contract illegal as formed is Re Mahmoud & Ispahani [1921] 2 KB 716, see [8.40].

chapter 8 Legality of Object

Contracts illegal as performed [8.130] A contract may be legal at the time it was formed, that is, when it was made but become illegal because of the way in which it is performed. Thus, a contract will be illegal as performed where one or both of the parties intend to perform it in an illegal manner or for an illegal purpose.

case [8.140] The plaintiff manufacturers contracted with the defendant hauliers for the transportation of a large piece of engineering equipment. Subsequently, the lorry on which the equipment was being carried toppled over and the equipment was damaged. The plaintiffs sued the defendants for their loss. The relevant motor vehicle legislation provided that it was unlawful to use on the road a motor vehicle weighing more than 30 tons when loaded. Both the plaintiffs and the defendants were aware that the load exceeded the legal limit: at 831. It was held that the plaintiffs could not recover. Although the contract for the carriage of the equipment may have been lawful when it was made, it was illegal as performed and therefore unenforceable by either party: Ashmore, Benson, Pease & Co Ltd v AV Dawson Ltd [1973] 1 WLR 828 at 832, 836. [8.150] If the illegal conduct is only incidental to the way in which the contract is performed, it will not have the effect of making the contract unenforceable: Fitzgerald v FJ Leonhardt Pty Ltd (1997) 189 CLR 215 at 246, 249; St John Shipping Corp v Joseph Rank Ltd [1957] 1 QB 267 at 291.

Contracts void by statute [8.160] A contract which is illegal as a result of an express or implied statutory prohibition is void and unenforceable. However, a statute may not make a particular contract illegal but simply declare it void. Legislation in most Australian States provides that contracts or agreements by way of gaming or wagering are void and such contracts cannot be enforced in the courts. 1 Exception is made in respect of lawful forms of gambling such as a bet or wager made on a licensed racecourse with a bookmaker. 2 A contract will be void if it undermines a statutory purpose under which statutory rights are conferred in the public interest. The High Court has thus indicated that: “contractual arrangements will not be enforced where they operate to defeat or circumvent a statutory purpose or policy according to which statutory rights are conferred in the public interest, rather than for the benefit of an individual alone. The courts will treat such arrangements as ineffective or void, even in the absence of a breach of a norm of conduct or other requirement expressed or necessarily implicit in the statutory text”: Westfield Management Ltd v AMP Capital Property Nominees Ltd (2012) 247 CLR 129 at [46] per French CJ, Crennan, Kiefel and Bell JJ.

1

2

Unlawful Gambling Act 1998 (NSW), s 56 (“has no effect”); Gambling Regulation Act 2003 (Vic), s 2.4.1; Racing Act 2002 (Qld), s 341; Lottery and Gaming Act 1936 (SA), ss 50, 50A; Racing Regulation Act 2004 (Tas), s 103(1); Unlawful Gambling Act 2009 (ACT), s 47; Racing and Betting Act 1983 (NT), s 135; Gaming and Betting (Contracts and Securities) Act 1985 (WA), s 4. Unlawful Gambling Act 1998 (NSW), s 56(2); Gambling Regulation Act 2003 (Vic), s 2.4.1; Racing Act 2002 (Qld), s 342; Lottery and Gaming Act 1936 (SA), s 50; Racing Regulation Act 2004 (Tas), s 103(2); Unlawful Gambling Act 2009 (ACT), s 47; Racing and Betting Act 1983 (NT), s 135(1); Gaming and Betting (Contracts and Securities) Act 1985 (WA), s 5.

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Illegality at common law [8.170] The courts refuse to enforce agreements that are “contrary to public policy”. These contracts fall into two basic categories: (a)

contracts described as illegal because of their more reprehensible character; and

(b)

those simply described as void, rather than illegal, because of their less serious nature.

A contract which is illegal will also be void and unenforceable in the courts. The rationale for the distinction between contracts which are illegal, and those which are simply void, on grounds of public policy is said to be justified because of the more severe consequences which may ensue where the contract is illegal.

Contracts illegal at common law [8.180] Contracts that are illegal at common law on grounds of public policy are: (a)

contracts to commit a crime, a tort or a fraud on a third party;

(b)

contracts promoting sexual immorality;

(c)

contracts prejudicial to the administration of justice;

(d)

contracts tending to promote corruption in public life;

(e)

contracts prejudicial to the public safety; and

(f)

contracts to defraud the revenue.

Contracts to commit a crime, a tort or a fraud on a third party [8.190] A contract involving the commission of a crime, a tort or a fraud on third parties is illegal at common law and will not be enforced.

Contracts promoting sexual immorality [8.200] A contract which promotes, either directly or indirectly, the promotion of sexual immorality is illegal and unenforceable. This includes agreements for the letting of premises or the hire of vehicles for an immoral purpose: Upfill v Wright [1911] 1 KB 506 at 510, 512. On the other hand, the contract of employment of a receptionist at a brothel was not void for illegality and she was entitled to recover workers’ compensation for a broken arm sustained on her way to work: Barac (t/as Exotic Studios) v Farnell (1994) 53 FCR 193 at 207, 213, 216. The New South Wales Court of Appeal found it unnecessary to consider this issue in relation to an agreement to become the mistress of a wealthy business figure as the court found that there was no intention to be legally bound: Ashton v Pratt (2015) 88 NSWLR 281 at [218], [222]. Community standards of “immorality” are susceptible to change: Andrews v Parker [1973] Qd R 93 at 102.

case [8.210] This was recognised by the New South Wales Court of Appeal in Seidler v Schallhofer [1982] 2 NSWLR 80. In that case an agreement provided for the continuation of a de facto relationship for six months and for marriage or separation thereafter. In the event of separation, the plaintiff was to get a refund of her payments towards the purchase of a house in return for the transfer

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to the defendant of her half share as joint tenant in the property: at 82. It was held that the agreement was not void as being contrary to public policy: at 90, 95, 103.

Contracts prejudicial to the administration of justice [8.220] Agreements which are regarded as hindering the administration of justice are illegal at common law on grounds of public policy. This includes agreements to conceal offences, compromise prosecutions or to prevent or impede the justice system. Two categories of agreement require further consideration in this context: (a)

agreements to stifle a prosecution; and

(b)

agreements for the maintenance of a suit and champerty.

Agreements to stifle a prosecution [8.230] An example of such an agreement is the following:

case [8.240] The defendant guaranteed repayment of a loan advanced by the plaintiff credit union to his son on the understanding that the credit union would not report his son to police for misappropriation of moneys from the credit union. It was held that the guarantee was void for illegality as an agreement to stifle prosecution for an indictable public offence: Public Service Employees Credit Union Co-operative Ltd v Campion (1984) 56 ACTR 39 at 48. [8.250] To be contrasted with that case is the decision of the Supreme Court of Western Australia in Scolio Pty Ltd v Cote (1992) 6 WAR 475:

case [8.260] An auditor’s report disclosed evidence of misappropriation of moneys by the respondent, a manager of the appellant company. The manager signed a deed to repay the moneys by instalments, being given to understand that if he did not do so the auditor’s report would be referred to the police. The court held that it was not established that the manager had signed the deed under duress and there was no evidence of an “implicit agreement to stifle a prosecution”. Accordingly, judgment was entered against the respondent manager for the amount of the deed: Scolio Pty Ltd v Cote (1992) 6 WAR 475 at 482, 488.

Agreements for the maintenance of a suit and champerty [8.270] Maintenance is the act of a third party in encouraging litigation by rendering officious assistance, by money or otherwise, to another person in a suit in which that third person has no legal interest. All the aspects of a particular transaction have to be taken into consideration to determine whether: “[T]here is wanton and officious intermeddling with the disputes of others in which the meddler has no interest whatever, and where the assistance he renders to one or the other party is without justification or excuse”: Giles v Thompson [1994] 1 AC 142 at 164 per Lord Mustill.

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Champerty is the maintaining of a suit on the understanding that the person maintaining will receive some share of the benefits accruing to a party to such suit, and is thus really a sharing of the results of litigation. In several jurisdictions legislation provides that the abolition of the torts of maintenance and champerty does not affect the rules concerning the illegality of contracts that are tainted by maintenance or champerty. 3 The law as to maintenance and champerty is ripe for reconsideration and is in a state of development, particularly with the advent of litigation funding: see Campbells Cash and Carry Pty Ltd v Fostif Pty Ltd (2006) 229 CLR 386 at [66]–[95]; Jeffery & Katauskas Pty Ltd v SST Consulting Pty Ltd (2009) 239 CLR 75 at [25]–[26]. Furthermore, there are statutory exceptions to these principles. In most jurisdictions legislation provides that an agreement relating to legal costs may provide that the payment of some or all of the costs is conditional upon the successful outcome of the matter concerned. 4 Such agreements are known as “conditional costs agreements”.

Contracts tending to promote corruption in public life [8.280] A contract with a person to use their official position to obtain a benefit for another is illegal. For example, a contract to procure a title of honour for reward is illegal.

case [8.290] The secretary of a charity made an arrangement with the plaintiff that if he would make a donation to its funds it would take steps on his behalf and procure him at least a knighthood. He paid £3,000 and undertook to pay more when the knighthood was forthcoming. However, he did not receive a knighthood and sued for the return of the money. It was held that he was unable to recover because the contract was illegal as being contrary to public policy: Parkinson v College of Ambulance Ltd [1925] 2 KB 1 at 13, 16.

case [8.300] A, the agent for the owners of land, who was negotiating on their behalf for its sale to the Crown, entered into an agreement with B and C, who were members of the State Parliament and carried on business in partnership as land agents. Under the agreement, B and C for pecuniary consideration undertook to put pressure upon the government, of which they were supporters, to agree to purchase the land. The completion of the purchase and the earning of the reward were contingent upon the approval of the House of which they were members, so that the completion was or might be dependent upon their votes: at 93. It was held that the agreement was illegal as being contrary to public policy: Wilkinson v Osborne (1915) 21 CLR 89 at 94, 105.

3 4

Civil Liability Act 2002 (NSW), Sch 2, Item 2; Wrongs Act 1958 (Vic), s 32(2); Civil Law (Wrongs) Act 2002 (ACT), s 221(2)(a). Legal Profession Uniform Law (NSW), s 181, applied by Legal Profession Uniform Law Application Act 2014 (NSW), s 4; Legal Profession Act 2007 (Qld), s 323; Legal Profession Act 2007 (Tas), s 307; Legal Profession Uniform Law (Vic), s 181, applied by Legal Profession Uniform Law Application Act 2014 (Vic), s 4; Legal Profession Act 2008 (WA), s 283; Legal Profession Act 2006 (ACT), s 283; Legal Profession Act 2006 (NT), s 318.

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Contracts prejudicial to the public safety [8.310] Agreements in this category are of two types. First, trading agreements between a national and an enemy alien in wartime. Secondly, agreements which might rupture the existing friendly relationships between one country and another: Regazzoni v KC Sethia (1944) Ltd [1958] AC 301 at 318-319, 327. Such agreements are illegal and unenforceable.

Contracts to defraud the revenue [8.320] A contract which is designed to defraud the revenue whether national or local is illegal as being contrary to public policy: Alexander v Rayson [1936] 1 KB 169 at 176, 188.

Contracts void at common law [8.330] There are three categories of contract usually regarded as being void (rather than illegal) at common law as being contrary to public policy. These are: (a)

contracts to oust the jurisdiction of the courts;

(b)

contracts prejudicial to the status of marriage; and

(c)

contracts in restraint of trade.

Contracts to oust the jurisdiction of the courts [8.340] A provision in a contract which purports to prevent recourse to the courts in the event of dispute between the parties is void as being contrary to public policy. It has been stated in the High Court that: “No contractual provision which attempts to disable a party from resorting to the Courts of law was ever recognized as valid. It is not possible for a contract to create rights and at the same time to deny to the other party in whom they vest the right to invoke the jurisdiction of the Courts to enforce them”: Dobbs v National Bank of Australasia Ltd (1935) 53 CLR 643 at 652.

Contracts prejudicial to the status of marriage [8.350] A contract or a term of a contract which prejudices the status of marriage will be void as contrary to public policy, for example a pre-marriage agreement not to live together after marriage: Scott v Scott (1904) 25 ALT 174 at 175. One type of contract invalidated is that known as “marriage brokerage”, that is, an agreement to procure a marriage for a consideration: Hermann v Charlesworth [1905] 2 KB 123 at 130, 136, discussed at [8.640].

Contracts in restraint of trade [8.360] A contract in restraint of trade is one which restricts a person from freely exercising their trade, business or profession. 5 The most widely accepted definition of “restraint of trade” is that enunciated in Petrofina (Great Britain) Ltd v Martin [1966] Ch 146 at 180: “A contract in restraint of trade is one in which a party (the covenantor) agrees with any other party (the covenantee) to restrict his liberty in future to carry on trade with other persons not parties to the contract in such manner as he chooses.” 5

See generally JD Heydon, The Restraint of Trade Doctrine (3rd ed, LexisNexis Butterworths, Sydney, 2008); C Arup et al, “Restraints of Trade: The Legal Practice” (2013) 36 University of New South Wales Law Journal 1; N Rochow, “Toward a Modern Reasoned Approach to the Doctrine of Restraint of Trade” (2014) 5 Western Australian Jurist 25; D Thorpe, “The Restraint of Trade Doctrine in the Era of Digital Markets” (2015) 32 Journal of Contract Law 244.

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A contract which is in restraint of trade is prima facie void as being contrary to public policy but will be binding on the parties if the court is satisfied that it is reasonable in the circumstances. The main points in considering whether at common law a contract in restraint of trade is void or binding are: (a)

the restraint must be reasonable as between the parties, that is, must be no wider than is reasonably necessary to protect the person for whose benefit it is imposed; and

(b)

the restraint must be reasonable in the interest of the public, that is, it must be in no way injurious to the public.

In applying these tests the duration and extent of the area of the restraint are of particular importance. Contracts in restraint of trade at common law can conveniently be divided for the purposes of discussion into the following categories: (a)

those made when a business is sold to protect the purchaser’s goodwill in the business against undue competition by the vendor;

(b)

those made with an employee to restrain the employee after the termination of their employment from exercising their occupation in a certain area or for a certain time; and

(c)

other restrictive trading agreements, such as price maintenance agreements.

Each of these types of contractual restraint are considered separately at [8.370]–[8.481].

Contracts for the sale of a business [8.370] The vendor of a business is frequently restrained from competing with the purchaser for a specified period and, usually, within a defined area. Such a restraint is enforceable if it is reasonable in the circumstances for the protection of the purchaser’s goodwill in the business: Nordenfelt v Maxim Nordenfelt Guns and Ammunition Co Ltd [1894] AC 535 at 548, 552, 558.

case [8.380] Where a contract for the sale of a shipbuilding business, specialising in the construction of luxury motor vessels, contained a restraint of trade clause restraining the vendors from engaging in “the business of shipbuilding of any description or any other business of a similar nature”, it was held that the clause constituted an unreasonable restraint of trade as not being reasonably necessary to protect the interests of the purchaser: Lloyd’s Ships Holdings Pty Ltd v Davros Pty Ltd (1987) 17 FCR 505 at 527.

case [8.390] A contract for the sale of a finance broking business provided that the vendor must not “solicit, canvass or secure the custom of a person who is at completion, or was within twelve months before completion, a customer”: Positive Endeavour Pty Ltd v Madigan (2009) 105 SASR 109 at [74]. The Court held that this clause went beyond what was reasonably necessary to protect the value of the purchased business. The clause applied in perpetuity to any loan for any purpose to any existing customer. Sufficient protection would have been given by a clause with a suitable time limitation or which applied to a limited class of customers or type of loan: at [24]–[25], [154].

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Contracts of employment [8.400] Contracts of employment sometimes contain covenants restraining the employee from exercising their profession or trade in a certain area or for a certain time after the termination of their employment. 6 Covenants in restraint of trade contained in contracts of employment will only be enforced so far as is necessary to prevent the employee using the knowledge, trade secrets or connections of their past employer in competition with that employer. It is not necessary for an employer to prove a risk that a former employee would intentionally use their connections with the employer’s clients. “[T]he influence in question can arise from attraction or attachment to, or fondness for, the employee rather than a conscious and deliberate attempt by the employee to manipulate the client”: Wallis Nominees (Computing) Pty Ltd v Pickett (2013) 45 VR 657 at [27]. However, a restraint of trade clause may not be used to prevent the employee from using their own skill and knowledge in their trade or profession, even if acquired in the previous employer’s service: Attwood v Lamont [1920] 3 KB 571 at 580, 589-590. The law does not readily allow a person to contract out of their means of livelihood: Lindner v Murdock’s Garage (1950) 83 CLR 628 at 645. A certain number of restraints rest on the employee, however, quite independently of any express covenant. For example, a person can be restrained from disclosing a secret process which they have memorised: Amber Size Chemical Co v Menzel [1913] 2 Ch 239 at 248. A person can be prevented from using a list of their employer’s customers for the purpose of soliciting business for themselves: Robb v Green [1895] 2 QB 315 at 318-319. A person acquiring special skills with access to their employer’s secrets can be restrained from working for a competitor in their spare time: Hivac Ltd v Park Royal Scientific Instruments Ltd [1946] Ch 169 at 179, 183. Such covenants will be construed much less favourably in the case of an employer and employee than in that of a vendor and purchaser of a business: Geraghty v Minter (1979) 142 CLR 177 at 185; EzyDVD Pty Ltd v Lahrs Investments Qld Pty Ltd [2010] 2 Qd R 517 at [10]. These points can be demonstrated by the leading case of Herbert Morris Ltd v Saxelby [1916] 1 AC 688:

case [8.410] Saxelby had been employed by the appellant company for 12 years. He had made a covenant with the company that he would not, for seven years after the termination of his employment with the company, either in the United Kingdom or Ireland, carry on or engage in by himself or with others any business of a like nature to that of the appellant company: at 690. He left the company and joined the staff of competitors of the company. The House of Lords held that the covenant was void as a person should not be restrained from using their own skill in any particular trade. A person has a right to engage in competition with others engaged in that trade and the law will not enforce a covenant in restraint of employment if it is imposed on the former employee only to protect the employer against competition per se: Herbert Morris Ltd v Saxelby [1916] 1 AC 688 at 702, 709, 717–718. [8.420] A restraint which is imposed simply for the purpose of preventing an ex-employee from using their own skill and knowledge in competition with their former employer will not be enforceable. However, a reasonable restraint designed to protect trade connections, confidential information, or trade

6

See A Brooks, “The Limits of Competition: Restraint of Trade in the Context of Employment Contracts” (2001) 24 University of New South Wales Law Journal 346.

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secrets acquired by the employee in the course of their employment will be enforceable: Littlewoods Organisation Ltd v Harris [1977] 1 WLR 1472 at 1479.

case [8.421] Jardin was the CEO of a subsidiary of Metcash, IGA Distribution, which distributed groceries to independent retailers: Jardin v Metcash Ltd (2011) 285 ALR 677 at [42]-[43]. Jardin’s contract of employment provided that he must not accept any other employment without the company’s permission, compete with the company, or hold investments of more than 5% of the issued investments of any class of another company: at [44]. Metcash decided to terminate his employment: at [2]. Jardin sought to take a majority shareholding in a competitor of Metcash: at [50]-[52]. The New South Wales Court of Appeal held that these contractual restraints were valid: at [107]. Metcash was entitled to protect itself from the risk that Jardin would use his connections with its customers to seek to entice them away to a competitor: at [97]. The evidence showed that over the 10 years of his employment Jardin had acquired knowledge and influence over customers that was sufficient to justify a restraint: at [98]. Confidential information about the terms of trade between IGA Distribution and its customers could be used to compete against IGA: at [102]. The 5% investment limit was justified because of the risk that Jardin would use his knowledge as CEO for the advantage of a competitor of IGA: at [104]. The deed releasing Jardin from his employment included a restraint for 12 months while he continued to be employed by Metcash. This restraint was also reasonable: at [106].

case [8.422] Pearson was employed in a senior role in a human resources firm, marketing the firm to possible clients: at [12]. His contract provided that he could not be employed by a business “similar to or competitive with” the firm for two years after ceasing employment with the firm. The contract also contained confidentiality and non-solicitation obligations: at [18]–[20]. The Full Federal Court upheld the restraint. The firm’s customer connections comprised a legitimate interest which could validly be protected by a restraint: at [46]. Pearson’s role had been to market the firm to potential customers: at [50]. The confidentiality and non-solicitation provisions were not sufficient to protect the firm’s customer connections: at [51]. The firm also had a legitimate interest in securing the full benefit of its bargain with Pearson during his employment through preservation of the goodwill and expansion of the business he generated: at [57]–[59]. The restraint was reasonably necessary to protect these interests: at [62]. This reasonableness was demonstrated by the allocation of shares in the company and the payment of his salary for 21 months of the two-year restraint period: Pearson v HRX Holdings Pty Ltd (2012) 205 FCR 187 at [63].

case [8.423] Money was employed by a firm of accountants. His employment contract provided that for a period of three years after leaving employment with the firm he may not provide accounting services to any client of the firm for whom he had worked within the three years before leaving the firm’s

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employment: at [21]. The contract further provided that if this restraint was breached, the ex-employee was liable to pay damages set at three-quarters of the fees payable by the client in the year before he ceased employment with the firm. The Victorian Court of Appeal upheld the restraint. The firm had a legitimate interest in guarding the goodwill of clients in relation to the ex-employee’s previous services to those clients: at [40]. The ex-employee’s knowledge of the client’s affairs encouraged the continued patronage of the firm: at [42]. The firm introduced the ex-employee to the client and it was through the firm’s facilities and supervision that the ex-employee had been able to create goodwill with the client. That goodwill was the property of the firm: at [76]. The duration of the restraint was reasonable: at [9]–[10], [84]. The damages clause was a genuine pre-estimate of loss and did not constitute a penalty: Birdanco Nominees Pty Ltd v Money (2012) 36 VR 341 at [90]–[92]. [8.429] A covenant in a partnership agreement between certain insurance loss adjusters that on dissolution of the partnership, one of the partners would not carry on the same kind of business within a radius of 20 miles of the partnership premises for three years was held by the High Court to be reasonable, and therefore enforceable, to protect the remaining interest of the original partners in the business: at 182, 188, 194, 200. In that case Gibbs J expressed the view that had the covenantor been an employee instead of a partner, there was no doubt that a similar covenant would have been enforceable against him to protect the goodwill of the partnership against possible misuse of his acquaintance with the clients and trade connections of the business: Geraghty v Minter (1979) 142 CLR 177 at 185.

case [8.430] A chiropractor was appointed to work at a chiropractic practice. The chiropractor agreed that for two years after the termination of a contract, he would not practice within the town, or induce any client of the practice to become his own client: at [11]. This was not a contract of employment: at [20]. It was held that the covenant not to practice within the town for two years was unenforceable. To be reasonable the time period would have to be that reasonably required to break the connection between the chiropractor and the patients of the clinic. On the facts a two-year period was unreasonable: at [31]–[32], [63]. A one-year restraint upon practice would have been reasonable: at [38], [115]. One judge stated that “the longer the gaps between [chiropractic] treatments, the longer the justifiable period of restraint”: at [64]. The covenant not to induce clients of the practice to become his own clients was upheld. A lengthier period was reasonable in the case of inducement than in the case of setting up as a competitor, since inducement “strike[s] more directly” at the clinic’s goodwill: NE Perry Pty Ltd v Judge (2002) 84 SASR 86 at [45], [88], [126]. [8.440] The principles governing the operation of the restraint of trade doctrine have also been applied to provisions which seek to unduly limit the circumstances in which an employee may be relieved from the employment contract as the following case demonstrates:

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case [8.450] T, a professional footballer, contracted to play with the Balmain Rugby League Club. Under his contract, T could not transfer to any other club except with the consent of the Balmain Club which had refused to give its consent. Further, even if the Balmain Club agreed to put T on a transfer list, the amount of transfer fee which it could fix was within its own discretion: at 366-367. The High Court held that the rules relating to the retention and transfer of players were in restraint of trade and that appropriate orders could be granted to prevent the club from continuing to observe them: at 382. The Court stated: “[T]the rules … go beyond what is reasonable in two main respects. In the first place, they enable a club to prevent any professional who has played in one of its teams from playing with another club, notwithstanding that he has ceased to play for the club which retains him and no longer receives any remuneration from that club. There is no time limited for the exercise of this power … A second objection to the rules … is in relation to the question of transfer fees. Although a club does not wish to retain a player, and is prepared to see him go to another club, it may fix a transfer fee, most of which goes to the club itself, although it may be quite unrelated to any benefit which the player has received from his membership of … the club … The transfer fee may not only prevent a player from reaping the financial rewards of his own skill but it may impede him in obtaining new employment”: Buckley v Tutty (1971) 125 CLR 353 at 378. [8.460] In determining whether a restraint is reasonable, the court may also have regard to the relative bargaining positions of the parties. That is to say, where there is an inequality of bargaining power, the court will have regard to the fairness of the bargain in determining whether the restraint in question is reasonable in the circumstances.

case [8.470] A young songwriter entered into an agreement with a music publishing company on one of the company’s standard forms. Under the contract the company engaged his exclusive services as a songwriter for a period of five years, with provision for automatic extension for another five years if royalties exceeded £5,000. Copyright in all compositions created by the songwriter during the term of the contract was to be assigned to the company. The songwriter received no payment (apart from an initial £50) unless his work was published but the company was under no obligation to publish or promote his work. If the company did not publish, the songwriter had no right to terminate the agreement or to have copyright in his compositions reassigned to him. The company could terminate the agreement by one month’s notice but there was no corresponding provision for the benefit of the songwriter. The company also had complete power to assign its rights under the contract but the songwriter could not do so without the publisher’s written consent: at 1312-1313. The House of Lords held that the contract was in unreasonable restraint of trade and void as being contrary to public policy. In determining whether the court would relieve the song writer of his legal duty to fulfil his obligations it was necessary to “assess the relative bargaining power of the publisher and the songwriter at the time the contract was made and to decide whether the publisher had used his superior bargaining power to extract from the songwriter promises that were unfairly onerous to him”: at 1315. The relevant question to be answered is: “‘Was the bargain fair?’ The test of fairness, is … whether the restrictions are both reasonably necessary for the protection of the legitimate interests of the promisee and commensurate with the benefits secured to the promisor under the

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contract”: at 1315-1316. On the facts, the contract did not satisfy this “test of fairness”: A Schroeder Music Publishing Co Ltd v Macaulay [1974] 1 WLR 1308 at 1314-1316. [8.480] The validity of a restraint is determined as at the time of entry into the contract: NE Perry Pty Ltd v Judge (2002) 84 SASR 86 at [98]; McHugh v Australian Jockey Club Ltd (2014) 314 ALR 20 at [4], [48], [65]. The covenantor’s subsequent unlawful conduct does not confer validity upon an invalid clause. Such a clause remains of no effect: Cedar Hill Flowers & Foliage Pty Ltd v Spierenburg [2003] 1 Qd R 482 at [2], [25], [50].

Other restrictive trading agreements [8.481] Several cases concern restraint of trade clauses that applied after the end of a franchise agreement. A franchise agreement shares some characteristics with both contracts for the sale of a business and contracts of employment. Determining which category most closely fits a particular franchise agreement requires a consideration of the specific agreement: BB Australia Pty Ltd v Karioi Pty Ltd (2010) 278 ALR 105 at [61].

case [8.482] Karioi operated two video rental stores under a Blockbuster franchise: BB Australia Pty Ltd v Karioi Pty Ltd (2010) 278 ALR 105 at [3]. The franchise agreement provided that for two years after the end of the agreement Karioi would not operate a video rental store within 30 km of Karioi’s premises: at [43]-[44]. In its decision the New South Wales Court of Appeal considered both the sale of a business and employment lines of cases. In relation to the sale of a business cases, Blockbuster sought to justify the restraint as necessary to protect various interests subsumed under the concept of “goodwill”: at [50]. The Court held that Blockbuster was not entitled to protect the goodwill related to its wider business from competition by Karioi: at [66]. The protection of Blockbuster’s intellectual property and confidential information was sufficiently protected by other clauses of the agreement: at [68]-[69]. The location of the stores did not justify the restraint as Blockbuster had not exercised its right to acquire the leases of the premises. Karioi retained the right to occupy the premises under its leases: at [70]. Blockbuster did not have a legitimate interest in the patronage of the stores as there was no evidence that customers chose their video store based on customer service at a branch rather than the location or branding of the store: at [73]-[76]. In relation to the contract of employment cases, the Court observed that while Karioi was not employed by Blockbuster, in a general way it acted on behalf of Blockbuster: at [78]. There was no evidence that customers were likely to follow Karioi at the end of the franchise: at [82]. Blockbuster did not have a legitimate interest in relation to the patronage of the stores: at [85]. There was no justification for giving a new Blockbuster franchisee in the area time to become established as there was no evidence that customers would prefer Karioi’s store rather than a new Blockbuster store, except in relation to location: at [87]. There was no evidence that Karioi would have a competitive advantage over a new franchisee by reason of having previously been a Blockbuster franchisee: at [91]. The franchise agreement adequately protected confidential information related to Blockbuster’s operations, which would in any case quickly become outdated: at [94]-[95]. The restraint was not justified by the protection of confidential information: at [96].

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case [8.483] A clause in a franchise agreement provided that for six months after the end of the agreement an EzyDVD franchisee would not operate a competing business within 5 km of the store: EzyDVD Pty Ltd v Lahrs Investments Qld Pty Ltd [2010] 2 Qd R 517 at [2]. When the agreement expired the franchisee destroyed or returned the intellectual property of EzyDVD. The franchisee began to operate a DVD store in the same location under a new name: at [8]. EzyDVD sought to justify the restraint as necessary for the protection of its intellectual property. The Queensland Court of Appeal held that the franchise agreement provided extensive protection for the intellectual property of EzyDVD: at [35]. It was unlikely that the franchisee would be able to remember the extremely detailed information contained in the EzyDVD product database: at [40]. The information in the database constantly changed so it became quickly outdated: at [41]. EzyDVD had not proven that the protection of its intellectual property necessitated the restraint: at [45]. [8.490] Many kinds of anti-competitive agreements are now proscribed by the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)): see Chapter 18. However, it is still important to be aware of the common law restraint of trade doctrine since agreements not falling within the ambit of the Competition and Consumer Act 2010 (Cth) may be held unenforceable at common law as being in unreasonable restraint of trade. The Act provides that it “does not affect the operation of … the law relating to restraint of trade insofar as that law is capable of operating concurrently with this Act”: s 4M.

case [8.500] A was a professional Australian Rules football player with a Western Australian club. An offer was made to him to play for a South Australian club and he moved to South Australia. Under the rules of the National Football League which were binding on the Western Australian and South Australian Football Leagues, clubs and players, a player had to obtain a permit to play for a particular club. Before A was eligible to apply for a permit to play for the South Australian club, he had to obtain a clearance from the Western Australian Football League. A’s application for a clearance was refused: at 481, 485. A brought an action seeking relief based on the Trade Practices Act 1974 (Cth) and, alternatively, on the common law restraint of trade doctrine. His action under the Trade Practices Act 1974 failed. However, his claim for relief based on the restraint of trade doctrine succeeded, since it was held that the clearance and permit rules operated in unreasonable restraint of trade and hence could not be enforced against A or the South Australian club: Adamson v West Perth Football Club Inc (1979) 27 ALR 475 at 506-507. See similarly, Adamson v New South Wales Rugby League Ltd (1991) 31 FCR 242 at 245, 282, 297; Avellino v All Australia Netball Association Ltd (2004) 87 SASR 504 at [115]. [8.510] In Australian Capital Territory v Munday (2000) 99 FCR 72, the Full Federal Court held that the “structure of trading society” test is the best criterion for determining which types of transactions are excluded from the common law restraint of trade doctrine: at [105]. Under this test, transactions are excluded from the restraint of trade doctrine because they “have become part of the accepted machinery of a type of transaction which is generally found acceptable and necessary, so that instead of being regarded as

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restrictive they are accepted as part of the structure of a trading society”: Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269 at 335. In Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 the High Court rejected another formulation of the test of exclusion from the restraint of trade doctrine: the “sterilisation of capacity” test (at [35]), also enunciated in Esso Petroleum Co Ltd v Harper’s Garage (Stourport) Ltd [1968] AC 269. In that case, Lord Pearce had stated: “The doctrine does not apply to ordinary commercial contracts for the regulation and promotion of trade during the existence of the contract, provided that any prevention of work outside the contract, viewed as a whole, is directed towards the absorption of the parties’ services and not their sterilisation”: at 328. The High Court did not decide whether the structure of trading society test was appropriate: at [23]. The High Court also pointed out that the approach of the common law has been to strike down a restraint unless justification for the restraint is shown: at [37]. Citing s 4M of the Trade Practices Act 1974 (Cth) (now the Competition and Consumer Act 2010 (Cth)), as permitting the independent development of the common law of restraint of trade, the Court indicated that a restraint which does not contravene Pt IV of the Trade Practices Act 1974 (Cth) (now Pt IV of the Competition and Consumer Act 2010 (Cth)) may nonetheless constitute an invalid restraint at common law: Peters (WA) Ltd v Petersville Ltd (2001) 205 CLR 126 at [32]. The Commonwealth Competition and Consumer Act 2010 (Cth) does not apply to the kinds of agreements discussed at [8.370] and [8.400] which are accordingly governed by the common law restraint of trade doctrine: s 51(2)(b), (d), (e).

Consequences of illegal contracts and void contracts [8.520] A distinction has been drawn between those contracts which are categorised as illegal in the strict or narrow sense and those which are regarded as simply void (rather than illegal). This distinction is maintained in the following discussion which considers the consequences of illegal and void contracts.

Consequences of illegal contracts [8.530] The consequences of illegality under either statute law or common law are basically the same. The general position is as follows:

The contract is totally void [8.540] The general effect of illegality in the formation of a contract is that the contract is void and neither party can sue on it.

Money paid cannot generally be recovered [8.550] Money paid or property transferred under an illegal contract is not generally recoverable. Should one of the parties seek to recover money paid under the contract, the defendant is in the stronger position where there is equal culpability. This means that a party cannot recover moneys paid under the illegal contract to the other if they are equally blameworthy. For example, in Parkinson v College of Ambulance Ltd [1925] 2 KB 1 (discussed at [8.290]) the plaintiff was unable to recover the £3,000 donation he had paid to a charity for a knighthood which did not eventuate: at 16.

Exceptions [8.560] A party can recover money paid or property transferred if that party was not “in pari delicto”, that is, not equally to blame. This will apply where under a contract prohibited by statute money is paid by

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the person whom the statute was designed to protect: Kiriri Cotton Co Ltd v Dewani [1960] AC 192 at 204. The parties are not “in pari delicto”, and accordingly recovery is allowed, where a person is induced to enter into the illegal contract by the exercise of fraudulent misrepresentation, duress or oppression.

case [8.570] The plaintiff, an English resident, agreed to purchase a house in Spain from the defendants who were English nationals resident in Spain. The defendants said that they were selling the house as agents for the owner. In fact they had no authority to sell the house. The plaintiff paid the defendants the purchase price. On discovering the true situation, the plaintiff sued the defendants. However, the defendants contended that the moneys paid by the plaintiff were irrecoverable on the ground that the transaction was illegal since it contravened the exchange control legislation : at 355. It was held that the plaintiff could recover since the parties were not in pari delicto. The defendants “were guilty of a swindle. It is only fair and just that they should not be allowed to keep the benefit of their fraud”: Shelley v Paddock [1980] QB 348 at 357. [8.580] It has also been held that where a fiduciary relationship exists between the contracting parties, as in the case of a solicitor or articled clerk entering into a contract with a client, the solicitor or articled clerk cannot raise the defence of illegality in an action by the client on the contract since the parties in such a case are not in pari delicto: Abdurahman v Field (1987) 8 NSWLR 158 at 162-164. A further exception is where a party who has paid money under an illegal contract repents of the illegal purpose before there has been any substantial performance of the contract; in such a case he or she can recover the money paid.

Related transactions void [8.590] The effect of an illegal contract may spread beyond the contract itself and affect related or collateral transactions which in turn become illegal. For example, a contract for the loan of money is illegal if it is made to enable the borrower to perform an illegal contract, or to pay a debt contracted under an illegal contract: Spector v Ageda [1973] Ch 30 at 44.

Severance and void contracts Extent of invalidity [8.600] Where a contract is void (but not illegal) the position is similar whether it is void under statute or at common law. The contract will be unenforceable only to the extent that its terms contravene the statutory or common law constraint. Accordingly, if the void part of the contract can be severed (separated from the rest), the remainder of the contract can still be enforced. Void words or parts of a clause may also be severed from the remainder of the clause: Speno Rail Maintenance Australia Pty Ltd v Metals & Minerals Insurance Pte Ltd (2009) 253 ALR 364 at [11], [13], [101]-[104], [110]; Positive Endeavour Pty Ltd v Madigan (2009) 105 SASR 109 at [43], [155]. [8.610] However, the court will not sever promises or terms of a contract if to do so would alter the whole nature of the contract: MacKinlay v Derry Dew Pty Ltd (2014) 46 WAR 247 at [152], [171]. Where severance is not possible, then the whole contract will be void: SST Consulting Services Pty Ltd v Rieson (2006) 225 CLR 516 at [51]. The Victorian Court of Appeal stated the test for determining whether void terms are severable as follows. First, “the impugned part must be capable of simply being removed … a court can remove words from a restraint clause but not rewrite it. Secondly, the part to be severed must be

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an independent covenant and capable of being removed without affecting the meaning of the remaining part”: Wallis Nominees (Computing) Pty Ltd v Pickett (2013) 45 VR 657 at [94], [109]. A common situation in which the question of severance has arisen is in relation to restraint of trade clauses. This led to the inclusion of clauses imposing harsh restraints but also providing that if that restraint was unenforceable some lesser restraint should be adopted. The object was to ensure that if the court struck down the more onerous clause, they could be severed from the contract and the remaining restraints enforced. In New South Wales, the Restraints of Trade Act 1976 (NSW) was enacted to combat this development. The Act provides that a restraint of trade is valid to the extent to which it is not against public policy whether or not it is in severable terms: s 4(1). The general effect of the Act is to validate a restraint of trade to the extent that it imposes a reasonable restraint, that is, reasonable between the parties and reasonable in the interests of the public: Fleming Bros (Monaro Agencies) Pty Ltd v Smith [1983] ATPR 40-389 at 44,569; IRAF Pty Ltd v Graham [1982] 1 NSWLR 419 at 425. 7

Severance and illegal contracts [8.620] The courts have held that severance also applies to contracts which are illegal in the strict sense: Carney v Herbert [1985] AC 301 at 317. In practice, the scope of severance in the case of illegal contracts tends to be limited, since the usual effect of failure to comply with a statutory prohibition is to make the whole contract illegal and void: Humphries v Proprietors “Surfers Palms North” Group Titles Plan 1955 (1994) 179 CLR 597 at 605, 609, 622; Day Ford Pty Ltd v Sciacca [1990] 2 Qd R 209 at 216.

Money paid recoverable [8.630] Money paid under a contract which is merely void (rather than illegal) is generally recoverable. It appears that this is so whether or not the party who has paid it can prove a total failure of consideration. This is illustrated by the case of a marriage brokerage contract:

case [8.640] The defendant agreed that he would introduce certain gentlemen to the plaintiff (an unmarried woman) with a view to matrimony for an initial fee of £52 and a later payment of £250 should a marriage take place. He introduced certain gentlemen to her but no marriage resulted. It was held that the plaintiff was entitled to the return of her £52 since the payment had been made under a void contract and was recoverable: Hermann v Charlesworth [1905] 2 KB 123 at 136, 138.

Further reading See contract texts listed at the end of Chapter 2.

7

See generally A Moses, “Restraint of Trade in New South Wales” (2004) 1 University of New England Law Journal 199.

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Contents and Interpretation of the Contract [9.20] Express terms....................................................................................................................................................... 156 [9.220] Implied terms..................................................................................................................................................... 163 [9.320] Exemption clauses.......................................................................................................................................... 167

Introduction [9.10] Problems concerning the contents and interpretation of the contract not infrequently arise. There may be dispute as to the nature of the terms agreed. In some circumstances additional terms may be implied by law into the contract. The contract may contain terms excluding the liability of one party for loss resulting from the occurrence of certain contingencies. Accordingly, the matters to be considered in this chapter are: 1.

Express Terms.

2.

Implied Terms.

3.

Exemption (or Exclusion) Clauses.

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Express terms [9.20] Whenever any dispute arises as to the meaning of a contract it becomes necessary to construe (interpret) the terms of the contract in order to ascertain the intention of the parties. Where a contract is made orally, the express terms of the contract will be ascertained by determining the words actually used by the parties when the contract was made. This is essentially a question of fact. If the contract has been reduced to writing, the general rule is that the terms of the contract are to be found in the writing. Recitals at the beginning of a written contract form part of the contract and may be considered in interpreting the agreement: Lachlan v HP Mercantile Pty Ltd (2015) 89 NSWLR 198 at [52]-[53]. Where a recital conflicts with an operative provision of the contract, the operative clause prevails: Canty v PaperlinX Australia Pty Ltd (2014) 9 BFRA 524; [2014] NSWCA 309 at [46]. The meaning of commercial documents is determined objectively; that is, by what a reasonable person in the position of the parties would have understood them to mean. See Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]; Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 at [4], [50], [322]; Electricity Generation Corp v Woodside Energy Ltd (2014) 251 CLR 640 at [35]. “The legal rights and obligations of the parties turn upon what their words and conduct would be reasonably understood to convey, not upon actual beliefs or intentions”: Equuscorp Pty Ltd v Glengallan Investments Pty Ltd (2004) 218 CLR 471 at [34]. The inquiry is thus “not a search for the uncommunicated subjective motives or intentions of the parties”: Vantage Systems Pty Ltd v Priolo Corporation Pty Ltd (2015) 47 WAR 547 at [99]. Evidence of “actual intentions and expectations” is inadmissible: Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [50]. The objective approach requires consideration, not only of the text of the documents, but also the surrounding circumstances known to the parties and the purpose and object of the transaction. See Pacific Carriers Ltd v BNP Paribas (2004) 218 CLR 451 at [22]-[25]; Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]; Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd (2015) 256 CLR 104 at [46], [49], [109]. However, the conduct of the parties after the contract was entered into may not be relied upon in interpreting a written contract: Agricultural and Rural Finance Pty Ltd v Gardiner (2008) 238 CLR 570 at [35], [163]. Post-contractual conduct is admissible in relation to the question of whether the parties had in fact concluded a contract: Lederberger v Mediterranean Olives Financial Pty Ltd (2012) 38 VR 509 at [26], [31]. It is unclear whether post-contractual conduct is admissible in considering whether a contract incorporates an implied term: Regreen Asset Holdings Pty Ltd v Castricum Brothers Australia Pty Ltd [2015] VSCA 286 at [135]-[140]. A contract must contain all the essential terms if it is not to fail for uncertainty. An agreement that leaves essential terms for the future agreement of the parties does not constitute a contract. See Thorby v Goldberg (1964) 112 CLR 597 at 607; Uranium Equities Ltd v Fewster (2008) 36 WAR 97 at [127], [257]; Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 at [31], [57], [266]. An agreement to agree is unenforceable. See Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600 at 604; Cosmopolitan Hotel (Vic) v Crown Melbourne Ltd (2014) 45 VR 771 at [65], [129], [206]; affirmed on this point Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 at [58]-[59], [253]. The terms agreed between the parties must be “sufficiently cohesive and coherent to stand as a contract in their own right”: Kovan Engineering (Aust) Pty Ltd v Gold Peg International Pty Ltd (2006) 234 ALR 241 at [53]. For example, an undertaking to rent a residential unit to a person “for as long as you live or wish to stay” would not fail for uncertainty: Dayeian v Davidson (2010) 76 NSWLR 512 at [1], [60], [88].

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An ambiguous term will not be void for uncertainty unless it is so vague as to be meaningless: Malago Pty Ltd v AW Ellis Engineering Pty Ltd [2012] NSWCA 227 at [28]. The courts endeavour to uphold commercial agreements “wherever possible”: Brice v Chambers [2014] QCA 310 at [139]-[140]; see also Ashton v Pratt (2015) 88 NSWLR 281 at [92], [222]-[223]. However, the courts will not fashion an agreement for the parties where they have not agreed upon essential terms nor agreed upon a mechanism for determining those terms. “[W]here the parties have not agreed upon the content of essential terms and have not agreed upon the application of an objective standard to measure their obligations or to provide a mechanism to fix the content of essential terms (as by third party determination), it is no business of the courts to foist upon the parties a bargain which they have not made”: Australian Securities and Investments Commission v Fortescue Metals Group Ltd (2011) 190 FCR 364 at [123]. While the High Court reversed this decision on appeal, the High Court’s decision was not inconsistent with this statement of principle: Forrest v Australian Securities and Investments Commission (2012) 247 CLR 486.

Parol evidence in relation to written documents [9.30] Where the parties have expressed their agreement in writing, the “parol evidence rule” will apply. 1 According to this rule, if the written document is intended by the parties to contain a complete record of their transaction, extrinsic evidence is not admissible to add to or vary the agreement contained in that written document. The rule has been stated as follows: “[W]here a contract is reduced into writing, where the contract appears in the writing to be entire, it is presumed that the writing contains all the terms of it, and evidence will not be admitted of any previous or contemporaneous oral agreement which would have the effect of adding to or varying it in any way”: Mercantile Bank of Sydney v Taylor (1891) 12 LR (NSW) 252 at 262 per Innes J. Modern decisions have taken the view that the rule “does not operate until the terms which constitute the contract are determined”: Nicolazzo v Harb (2009) 22 VR 220 at [71]. The rule prevents the admission of parol evidence only where the contract is entirely in writing: Masterton Homes Pty Ltd v Palm Assets Pty Ltd (2009) 261 ALR 382 at [1], [4], [90]. The parol evidence rule is subject to the following exceptions: 1. Parol evidence of surrounding circumstances is admissible to assist in the interpretation of the contract if the language of the written contract “is ambiguous or susceptible of more than one meaning”: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 352 per Mason J; McMahon v National Foods Milk Ltd (2009) 25 VR 251 at [9]. 2 On the other hand: “[E]vidence of surrounding circumstances may not be used, as part of an exercise in construction of a contract, to contradict unambiguous contractual stipulations”: GMA Garnet Pty Ltd v Barton International Inc (2010) 183 FCR 269 at [191] per Buchanan J. 2. Evidence may be given of the subject matter of the contract or of the identity of the parties to it: Abram v AV Jennings Ltd (2002) 84 SASR 363 at [44]. Such evidence is admissible in explanation of the terms used in the contract but must not alter those terms.

1

2

See generally T Cole, “The Parol Evidence Rule: A Comparative Analysis and Proposal” (2003) 26 University of New South Wales Law Journal 680; K Lindgren, “The Ambiguity of ‘Ambiguity’ in the Construction of Contracts” (2014) 38 Australian Bar Review 153. See T Prince, “Defending Orthodoxy: Codelfa and Ambiguity” (2015) 89 Australian Law Journal 491; D Reynolds, “Construction of Contracts After Mount Bruce Mining v Wright Prospecting” (2016) 90 Australian Law Journal 190.

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case [9.40] In a contract for the sale of land the purchaser was described in different parts of the document as “Mrs Kenny” and as “Mr Kenny”. The document was signed by “Mrs Kenny”. The High Court held that: “Extrinsic evidence was admissible to show, as it did, that Mrs Kenny, in agreeing to buy, was acting as agent for her husband as well as herself.” An order for specific performance of the contract by the vendor was granted: Giliberto v Kenny (1983) 48 ALR 620 at 623. [9.50] 3. Parol evidence may always be given to explain a trade custom or local usage applicable to the contract. Similarly, evidence of usage to explain the meaning of terms of art or technical words in a document is admissible. 4. A collateral verbal agreement relating to the same subject matter and not inconsistent with the writing may be proved.

case [9.60] A purchaser, before signing a contract for the purchase of a house, asked the vendor whether there were termites in the house. On receiving an assurance that there were not, the purchaser signed the contract which made no mention of termites. Several months later, the purchaser found termites. It was held that the purchaser could recover the cost of termite treatment and necessary repairs for breach of the vendor’s collateral agreement: Van Den Esschert v Chappell [1960] WAR 114 at 115–116; see also [9.100]. [9.70] 5. When the written document was not intended to embody all the terms of the transaction but was intended merely to be a note, receipt or the like, no inference can be drawn that the parties intended the document to be a record of their agreement and parol evidence may be given to show what the agreement was. Parol evidence is admissible “as to whether a document was intended to be operative as a contract”: Nicolazzo v Harb (2009) 22 VR 220 at [88]. 6. Parol evidence may always be given that the contract is not legally binding because of fraud, duress, undue influence and the like. 7. The common law parol evidence rule is not a barrier to the enforcement of the equitable doctrine of promissory estoppel: Saleh v Romanous (2010) 79 NSWLR 453 at [68]-[72].

Express term that parties “negotiate in good faith” [9.80] There is an increasing tendency for commercial agreements to contain a provision to the effect that the parties will “negotiate in good faith”. While there is some Australian authority to the effect that a promise to negotiate in good faith may be enforceable in certain circumstances, there is considerable uncertainty on the issue: Coal Cliff Collieries Pty Ltd v Sijehama Pty Ltd (1991) 24 NSWLR 1 at 26; Australis Media Holdings Pty Ltd v Telstra Corporation Ltd (1998) 43 NSWLR 104 at 129; Aiton Australia Pty Ltd v Transfield Pty Ltd (1999) 153 FLR 236 at [98]; ACI Operations Pty Ltd v Berri Ltd (2005) 15 VR 312 at [173]-[175].

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case [9.90] The litigants were parties to an engineering contract for the design and building of new rolling stock for a rail network. The contracts contained a dispute resolution clause which required senior representatives of each party to meet and undertake “genuine and good faith negotiations”. If the matters in dispute were not resolved by negotiations there was provision for arbitration. The New South Court of Appeal held that the clause was not vague, illusory or uncertain but imposed a real obligation with real content. “As a matter of language, the phrase ‘genuine and good faith’ in this context needs little explication: it connotes an honest and genuine approach to the task. This task, rooted as it is in the existing bargain, carries with it an honest and genuine commitment to the bargain (fidelity to the bargain) and to the process of negotiation for the designated purpose”: United Group Rail Services Ltd v Rail Corporation New South Wales (2009) 74 NSWLR 618 at [71] per Allsop P. It was further held that the matter should proceed to arbitration.

Distinction between representations and terms of the contract [9.100] Not all statements made by a party in the course of negotiating a contract will be regarded as terms of the contract. Therefore, it is important to distinguish between statements that are simple or “mere” representations which induced the contract (for which the remedy of rescission for misrepresentation may be available) and statements which are regarded as terms of the contract itself, so that if they turn out to be untrue the appropriate remedies will be those available for breach of contract. The importance of the distinction is that damages cannot be awarded for a statement that merely constitutes an innocent (as opposed to a negligent or a fraudulent) misrepresentation inducing the contract, 3 whereas damages can be awarded for breach of a contractual term. For a statement to constitute a term of the contract, the party making the statement must have undertaken or promised that the statement was true in the sense of making it part of the contractual bargain. The question of whether a statement is a term of the contract depends on the intention of the parties as determined objectively from all the circumstances of the case.

case [9.110] The defendant traded in his old second-hand car to the plaintiff dealers in part payment for a new one. The defendant had described his old car as a 1948 Morris, this being the date of the first registration of the vehicle shown in its logbook. On this basis the plaintiff allowed him £290 trade-in. However, eight months later the plaintiff discovered that the vehicle was a 1939 model and not a 1948 model, the appearance of the models having remained the same in the intervening years. A previous owner of the vehicle must have fraudulently altered the date in the logbook: at 373.

3

But note that where the representation is made in connection with the supply of goods, services, or land, an action for damages may lie for contravention of the false representation provisions of the Australian Consumer Law. The Australian Consumer Law is Sch 2 to the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)): see Chapter 17.

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The plaintiff dealers sought to recover £115 as damages, being the difference in value between a 1939 and a 1948 model, on the ground that the defendant’s representation constituted a term of the contract. However, a majority of the Court of Appeal held that the plaintiff’s claim failed since the defendant’s statement was a “mere” representation and not a term of the contract: Oscar Chess Ltd v Williams [1957] 1 WLR 370 at 377-378.

Collateral contracts [9.120] A further possibility is that a statement, although not an actual term of the contract, may be treated by the court as a collateral contract, that is, collateral to the main contract, and damages may be recovered for breach of that collateral contract. The term “collateral warranty” is sometimes used interchangeably with “collateral contract”. This device has been used particularly where the main contract has been reduced to writing. In such a case it may not be possible for an oral statement to take effect as an actual term of the contract because of the parol evidence rule. However, where it can be shown that the statement was intended to have contractual effect, the courts will treat it as a collateral contract. The oral statement constitutes a collateral contract, the consideration for which is the entering into the main written contract between the parties. [9.130] However, the collateral contract must not be inconsistent with the terms of the main contract. That is because the consideration for the collateral contract is entry into the main contract. If the collateral contract was inconsistent with the main contract, that “would detract from the very consideration which is alleged to support the promise”: Maybury v Atlantic Union Oil Co Ltd (1953) 89 CLR 507 at 517 per Dixon CJ, Fullagar and Taylor JJ.

case [9.140] The defendant sub-leased certain premises to the plaintiff. The written sub-lease contained a proviso entitling the defendant to terminate it on giving four weeks’ notice in writing. The defendant subsequently terminated the sub-lease. The plaintiff claimed damages for breach of a verbal promise, given by the defendant prior to the sub-lease being signed, that he would not terminate it unless required to do so by the head lessors. It was held that the defendant’s verbal agreement not to terminate the sub-lease and the proviso in the written sub-lease giving him an unqualified right to terminate it were inconsistent; therefore, the verbal agreement was unenforceable: Hoyt’s Pty Ltd v Spencer (1919) 27 CLR 133 at 139–140, 147–148; see also Adicho v Dankeith Homes Pty Ltd [2012] NSWCA 316 at [26]–[27]. [9.150] It needs to be emphasised that a court will only treat a statement or representation as a collateral contract where it is satisfied that the statement was intended to have contractual effect. This is clearly demonstrated by the following decision of the High Court:

case [9.160] B was contemplating purchasing a motor boat from S who built and sold boats. During the negotiations B sought the written advice of S as to various engines which might be used to power the boat. In his letter of reply, S commented on three types of engines and recommended one in particular, stating it to have an “Estimated speed [of] 15 mph”. Relying on this statement B contracted to buy

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the boat with the engine recommended by S. The contract contained no reference to the capacity of the boat to achieve any particular speed. When the boat’s maximum speed proved to be only 12 mph, B sued S for damages for breach of an alleged collateral warranty in respect of the statement concerning the estimated speed. The High Court held that B’s claim failed since S’s statement, although inducing B to enter into the contract, constituted a representation only and not a collateral warranty. Thus, the question was whether there was “a promise by [S] that the boat would in fact attain the stated speed if powered by the stipulated engine, the entry into the contract to purchase the boat providing the consideration to make the promise effective”. In the court’s view it was not sufficient simply to show that one party would not have entered into the contract but for the statement made by the other since: “Such a fact is but a step in some circumstances towards the only conclusion which will support a collateral warranty, namely, that the statement so relied on was promissory and not merely representational”: JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 at 442. [9.170] The High Court added that when B received S’s letter recommending the particular engine, the negotiations for the construction of the boat were still incomplete. Accordingly, B could have adopted one of three courses, namely: (a)

he could have required the attainment of the speed of the boat to be inserted as a term of the contract; or

(b)

he could have sought a promise from S – “however expressed, whether as an assurance, guarantee, promise or otherwise” – that the boat would attain the speed as a prerequisite to his ordering the boat; or

(c)

he could have formed his own judgment as to the most suitable engine, relying on the opinion of S whose reputation and experience in the field he held in high regard: JJ Savage & Sons Pty Ltd v Blakney (1970) 119 CLR 435 at 442–443.

“Only the second course would give rise to a collateral warranty”: at 443. The court said there was nothing in the evidence to support (a) or (b). The only conclusion open was that B had taken course (c), that is, he had accepted S’s estimate of speed to form his own judgment as to which engine should be ordered for the boat: at 443. A merger clause provides that the written agreement constitutes the entire agreement between the parties. 4 Such a clause leaves “no room for a submission that the terms of the contract were not fully embraced within its four walls”: Retirement Services Australia (RSA) Pty Ltd v 3143 Victoria St Doncaster Pty Ltd (2012) 37 VR 486 at [108]. A merger clause “exclude[s] evidence of extrinsic terms” but not proof of a collateral contract, unless the clause is clearly worded to exclude proof of a collateral agreement: McMahon v National Foods Milk Ltd (2009) 25 VR 251 at [37]–[38].

case [9.175] Crown leased space in its casino to two restaurants. The parties negotiated a new lease. The term was five years. The lease required the tenants to undertake major refurbishments of the 4

See E Peden and JW Carter, “Entire Agreement – and Similar – Clauses” (2006) 22 Journal of Contract Law 1; IM Jackman, “Some Judicial Fallacies Concerning Entire Agreement Clauses” (2015) 89 Australian Law Journal 791.

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restaurants. The tenants were concerned that they might not recoup the cost of the refurbishments within five years. They sought the inclusion of a right to renew the lease for a further five years. Crown was unwilling to agree to such term. During the negotiations, a representative of Crown assured the tenants that they would be “looked after at renewal time””. The tenants entered into the lease and underook the major refurbishment. Towards the end of the term of the new lease Crown refused to renew the lease: at [4]–[9], [13]. The court held that Crown was not bound by a collateral contract to offer a renewal of the lease. French CJ, Kiefel and Bell JJ held that Crown’s statement was not a binding contractual promise, but was “no more than ‘vaguely encouraging’”: at [23]. It was not “a contractual promise of any kind”: at [28]. There had been no agreement about essential terms of a renewed lease: at [31]. The tenants had not argued that Crown’s statement was a commitment that the tenants would not be left “out of pocket” in relation to the refurbishments: at [29]. Keane J held that there was no binding agreement to make an offer to renew the lease: at [126]. There was no agreement as to the terms of a new lease: at [128]. It had not been argued that the statement that the tenants would be “looked after at renewal time” involved a commitment to compensate the tenants for any loss incurred from the refurbishment: at [129]. No agreement had been made, since in negotiating a renewal of the lease Crown was free to set terms that would be unacceptable to the tenants: at [130]. The suggested agreement was illusory: at [131]–[132]. Nettle J held that a reasonable person would not have understood Crown to make a binding offer to renew the lease. The parties never agreed the terms of any renewed lease: at [196]. Furthermore, a promise to make an offer for a lease for a rent to be determined by the landlord was illusory: Crown Melbourne Ltd v Cosmopolitan Hotel (Vic) Pty Ltd (2016) 90 ALJR 770 at [199].

Conditions and warranties [9.180] A distinction is made between those terms which constitute conditions of the contract and those which are categorised as warranties. A condition is an essential term of the contract. It is a stipulation which “goes to the root of the matter, so that a failure to perform it would render the performance of the rest of the contract … a thing different in substance from what the defendant has stipulated for”: Bettini v Gye (1876) 1 QBD 183 at 188. A warranty, although a term of the contract, is regarded as subsidiary or collateral to the main purpose of the contract, that is, it is of lesser significance or importance than a condition. The reason for distinguishing between terms which constitute conditions and those constituting warranties is that breach of a condition entitles the innocent party to rescind, that is, terminate, the contract and/or claim damages, whereas a breach of warranty entitles the innocent party to damages only for the loss they have suffered as a result of the breach and does not give them a right to terminate the contract.

case

[9.190] G, the director of an opera company, contracted for the exclusive services of B as a singer in opera and concerts for a period of three months. The contract contained a provision that B would be in London at least six days before the commencement of his engagement for rehearsals. B, through illness, only arrived two days earlier, whereupon G refused to accept his services and treated the contract as at an end: at 185.

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It was held that in the circumstances the term was not a condition but a warranty and, accordingly, although G was entitled to damages for loss (if any) he had suffered for B’s breach of contract, he had not been entitled to treat the contract as terminated: Bettini v Gye (1876) 1 QBD 183 at 189.

case [9.200] In contrast, B contracted to prepare a weekly drawing relating to a cartoon character, “Ginger Meggs”, for the plaintiff newspaper company which in turn undertook to present the drawing each week as a full page feature on the front page of the comic section of its Sunday newspaper. As a result of problems arising from a newsprint shortage, B’s “Ginger Meggs” cartoon appeared on page three of the comic section of the newspaper instead of on page one as provided by the contract between the parties. This occurred on three consecutive Sundays, whereupon B wrote to the plaintiff to the effect that he no longer regarded himself as bound by the contract because of the plaintiff’s breach: at 333–334. In an action by the plaintiff company, the High Court held that its undertaking to publish B’s cartoon on the front page of the comic section constituted a condition of the contract, breach of which entitled B to treat the contract as at an end: Associated Newspapers Ltd v Bancks (1951) 83 CLR 322 at 339. [9.210] Whether a term of a contract is a condition or warranty depends essentially on determining the intention of the parties to the contract. Ascertaining that intention, and thus deciding whether the term is to be treated as a condition or warranty, is often no easy matter as the cases at [9.190]–[9.200] demonstrate. In some cases it may be more appropriate to look at the nature and effect of the breach in deciding what remedy should be available to the innocent party, rather than determining the remedy by simply asking whether it is a condition or warranty of the contract that has been breached. However, that issue is better considered in the context of the termination of a contract by breach: see [11.210]. In the case of contracts for the sale of goods, the dichotomy between conditions and warranties has received statutory recognition by virtue of the State Sale of Goods Acts: see [14.210].

Implied terms [9.220] In addition to the express terms agreed upon by the parties, other terms may be implied in the contract. 5 In appropriate circumstances terms may be implied by: (a)

the court;

(b)

custom or trade usage; or

(c)

statute.

Terms implied by the court [9.230] Terms which may be implied by the court can be subdivided into two categories: (a) those implied to give “business efficacy” to the contract, and (b) those implied in specific kinds of contract. 5

JW Carter and W Courtney, “Implied Terms in Contracts: Australian Law” (2015) 43 Australian Business Law Review 246; JW Carter et al, “Terms Implied in Law: “Trust and Confidence”’ in the High Court of Australia ” (2015) 32 Australian Law Journal 203.

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Terms implied to give “business efficacy” to the contract [9.240] The courts will “readily imply” a term that the parties must co-operate to “ensure the performance of their bargain”: Famestock Pty Ltd v Body Corporate for No 9 Port Douglas Road Community Title Scheme 24368 [2013] QCA 354 at [13]. Occasionally the parties, through inadvertence or poor drafting, may have failed to incorporate terms to cover a situation which had they thought about it, they would certainly have provided for. In such a case the court may imply appropriate terms so as to give “business efficacy” to the contract in accordance with the presumed intention of the parties. This principle was recognised in the case of The Moorcock (1889) 14 PD 64:

case [9.250] The defendant wharfingers contracted to allow the plaintiff to use their jetty to unload his ship. The ship was damaged at low tide by settling on a ridge of hard ground which lay beneath the river mud. It was held that the defendants were liable for the damage since the parties must have intended to contract on the basis that the berth would be safe for the plaintiff’s ship at low tide. The defendants were thus in breach of an implied term that they would take reasonable care to see that the berth was safe for the vessel. In the words of Bowen LJ: “In business transactions such as this, what the law desires to effect by the implication is to give such business efficacy to the transaction as must have been intended at all events by both parties who are businessmen”: The Moorcock (1889) 14 PD 64 at 68. [9.260] The most frequently cited test for determining whether a term should be implied in a contract is as follows: “Prima facie that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common, ‘Oh, of course’”: Shirlaw v Southern Foundries (1926) Ltd [1939] 2 KB 206 at 227 per MacKinnon LJ. The power to imply terms in a contract is used sparingly by the courts. In BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266, the Privy Council said that the term implied must be: (a)

reasonable and equitable;

(b)

necessary to give business efficacy to the contract, so that no term will be implied if the contract is effective without it;

(c)

so obvious that “it goes without saying”;

(d)

capable of clear expression; and

(e)

must not contradict any express term of the contract: at 283.

case [9.270] In the BP Refinery case, the appellant company, a wholly owned subsidiary of BP Australia Ltd, had entered into an agreement with the State of Victoria to build and maintain an oil refinery on a site within the municipal district of the respondent council. The appellant was empowered under the agreement to dispose of its rights under the agreement to a company in which BP Australia Ltd held at least 30 per cent of the issued capital.

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The appellant company was granted preferential rate concessions by the respondent council under the provisions of the Local Government (Decentralised Industries) Act 1963 (Vic). The preferential rating agreement was expressed to cover a period of 40 years but contained no express provision enabling the appellant to assign the benefit of the agreement to any other company. Some five years later, following a decision to reorganise the corporate structure of BP Australia Ltd, the appellant company went into a members’ voluntary liquidation. The appellant’s liquidator transferred the refinery site and plant to BP Australia Ltd. The respondent council contended that the preferential rating agreement with the appellant lapsed on such reorganisation taking place and assessed normal rates on the site on the basis that the preferential rating agreement did not apply to BP Australia Ltd. The liquidator of the appellant company subsequently obtained a court order for the winding up of the appellant to be stayed. BP Australia Ltd then leased the refinery to the appellant for three years at no rent, the appellant agreeing as lessee to carry out such refinery processes on the site as would be directed by BP Australia Ltd as lessor. The appellant company then claimed the benefit of the preferential rate agreement with the council which refused the claim and levied rates at the normal level. The appellant brought an action claiming it was entitled to the preferential rate concessions in accordance with the original agreement with the respondent council. The Privy Council held that no term could be implied in the rating agreement that it was to remain in force only so long as the refinery site remained in the appellant’s occupation. It was apparent that a group of companies such as the BP Group might wish to make changes to its corporate structure during the period of 40 years envisaged by the rating agreement. Such possibility was specifically recognised in the related agreement for the construction and maintenance of the refinery, while the identity of the particular member of the BP Group occupying the refinery site could not have been of the least importance to the respondent council: at 284. The Privy Council added that, judged by the officious bystander test any such implied term would have been rejected at once by the appellant company at the time of negotiating the agreement and such an implied term would not only have operated inequitably but also have failed to give business efficacy to the agreement: at 285. On the contrary, the Privy Council held that a term should be implied making the rating agreement accord with the refinery agreement and thus provide that the rights of the appellant company under the rating agreement could be assigned or otherwise disposed of to a company in which BP Australia Ltd held 30 per cent or more of the issued capital: at 285–286. Such an implied term would be “both reasonable and equitable. It is capable of clear expression. It does not contradict any express term of a contract, but adds to it; and it gives business efficacy to the contract. In the light of the provisions of the refinery agreement it was something so obvious that it went without saying, and if an officious bystander had asked whether that was the common intention of the parties the answer would have been ‘Of course’”: BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1978) 180 CLR 266 at 286. [9.280] By way of contrast, where a company contracted with a State Rail Authority to excavate tunnels for a new railway line, it being assumed by the parties that the work would proceed on the basis of three eight-hour shifts per day, six days a week, the High Court refused to imply a term in the contract that the company would be granted a reasonable extension of time when an injunction was obtained by a resident restraining the company from performing construction work between 10 pm and 6 am: at 344, 355-356,

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375, 392, 405. However, the High Court found that the changed circumstances were such as to frustrate the contract and granted appropriate relief to the company on this alternative ground: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337: on the latter point see [11.420]. The High Court later reaffirmed the view that where it is contended that a term should be implied to give business efficacy to a contract, it must be shown that “the term sought to be implied must be necessary to make the contract work and must be so obvious that it goes without saying”: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 241; see also Vita Pacific Ltd v Heather (2001) 10 Tas R 334 at [14], [59].

Terms implied in specific kinds of contract [9.290] Certain terms are implied in various types of contract at common law. For example, in a contract for the hire of goods there is an implied condition that the goods will be reasonably fit for the purpose for which they are hired: Derbyshire Building Co Pty Ltd v Becker (1962) 107 CLR 633 at 656, 659. Similarly, in a contract for the supply of materials there are implied terms that the materials used will be reasonably fit for the purpose intended: Helicopter Sales (Aust) Pty Ltd v Rotor-Work Pty Ltd (1974) 132 CLR 1 at 8, 15. The Australian Consumer Law 6 implies similar terms in such contracts. In cases not falling within the scope of the latter legislation, the terms implied at common law remain important. The terms implied in a contract at common law can be excluded by the parties.

Terms implied by custom or trade usage [9.300] Where parties have contracted in a particular trade, the customs or usages of that trade may be implied into the contract. However, in order for this to occur, the custom or usage must be notorious, certain and reasonable and not contrary to the express terms of the contract. The relevant principles have been stated by the High Court as follows: 1.

The existence of a custom or usage that will justify the implication of a term is a question of fact.

2.

There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract: Nelson v Dahl (1879) 12 Ch D 568 at 575; Thornley v Tilley (1925) 36 CLR 1 at 8.

3.

A term will not be implied into a contract on the basis of custom where it is contrary to the express terms of the agreement.

4.

A person may be bound by a custom notwithstanding the fact that they had no knowledge of it: Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd (1986) 160 CLR 226 at 236-237.

Terms implied by statute [9.310] In certain classes of contract terms are implied by statutory provision. For example, the Australian Consumer Law provides for statutory guarantees in contracts for the supply of goods and services to consumers. These include guarantees as to title, correspondence with description, acceptable quality and fitness for purpose. Conditions as to title, quality and fitness of the goods are implied into contracts for the sale of goods by the State and Territory Sale of Goods Acts. 6

The Australian Consumer Law is Sch 2 to the Commonwealth Competition and Consumer Act 2010 (Cth) (formerly the Trade Practices Act 1974 (Cth)): see Chapter 17.

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Exemption clauses [9.320] An exemption or exclusion clause is a term of the contract which limits, or excludes altogether, a liability to which one party to the contract would otherwise be subject. The function of exemption clauses is to limit or exclude liability for breach of an express or implied contractual obligation, or negligence in the performance of the contract. The courts have endeavoured to alleviate the position of the party prejudiced by the use of exemption clauses by construing the document in which they are contained in their favour wherever possible. Since exemption clauses may take a variety of forms, it is virtually impossible to lay down, in advance, universal rules as to those provisions that will be upheld and those which will not. However, the following general rules would seem to be established: [9.330] 1. The person seeking to rely on an exemption clause must show first that it has in fact become part of the contract He or she can do this in one of the following ways: (a)

By showing that it was included in a contract signed by the other party. In such a case the clause will be binding, in the absence of fraud or misrepresentation, irrespective of whether the contract was read or understood: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165:

case [9.340] In that case a company manager signed, without reading, an application for credit that contained an exemption clause. The application prominently stated: “Please read ‘Conditions of Contract’ (Overleaf) prior to signing”. It was held that the signature was binding. The unanimous High Court explained this principle as follows: “to sign a document known and intended to affect legal relations is an act which itself ordinarily conveys a representation to a reasonable reader of the document. The representation is that the person who signs either has read and approved the contents of the document or is willing to take the chance of being bound by those contents, … whatever they might be. That representation is even stronger where the signature appears below a perfectly legible written request to read the document before signing it”: Toll (FGCT) Pty Ltd v Alphapharm Pty Ltd (2004) 219 CLR 165 at [40]. (b)

By showing, in the absence of a signed document, that the exemption clause was brought to the notice of the other party before or at the time the contract was made. Often there is no signed document to refer to but an exemption clause may be contained either in a notice on the premises where the contract is made, or in a document which is simply handed over, for example in a ticket, voucher or receipt.

[9.350] The basic principle in these situations is that the exemption clause will form part of the contract if the party seeking to rely on it can show that they had taken steps which were reasonably sufficient in the circumstances to give notice of the exemption clause to the other contracting party. The following cases illustrate the point:

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case [9.360] The plaintiff booked for a cruise on the defendants’ cruise ship. It was stipulated on the “Booking Form” that the “Contract of carriage for travel … will be made only at the time of the issuing of tickets and will be subject to the conditions and regulations printed on the tickets. These conditions and regulations are available to all passengers at any CTC Cruises offices …” [emphasis added]: at 23. The ticket subsequently issued to the plaintiff, some six weeks after full payment for the cruise and two weeks before departure, contained conditions limiting the defendants’ liability for loss of baggage or personal injury. The plaintiff lost her belongings and suffered personal injury when the cruise ship sank owing to negligent navigation of the vessel. The defendants relied on the conditions in the ticket limiting the amount recoverable from them. It was held by a majority of the New South Wales Court of Appeal that the defendants could not rely on the conditions on the ticket since they had not been sufficiently brought to the plaintiff’s attention and therefore did not form part of the contract: Baltic Shipping Co v Dillon (1991) 22 NSWLR 1 at 8-9, 25. This aspect of the case was not affected by the later decision of the High Court (Baltic Shipping Co v Dillon (1993) 176 CLR 344, see [12.240]).

case [9.370] T drove up to the defendants’ automatic car park. He was stopped by a red traffic light and a machine issued him a ticket. When he took the ticket, the light turned green allowing him to proceed into the garage where his car was parked by mechanical means. The ticket contained in small print on the bottom left hand corner the words “issued subject to conditions … displayed on the premises”. A set of printed conditions displayed in a panel on a pillar opposite the machine included a provision exempting the defendants from liability for injury to a customer. T was injured when he returned to collect his car: at 167. In an action for damages, the defendants sought to rely on the exemption clause. It was held that the clause did not exempt the defendants from liability since they had not done what was reasonably sufficient to bring it to T’s notice: Thornton v Shoe Lane Parking Ltd [1971] 2 QB 163 at 170, 173-174. [9.380] The exemption clause must be brought to the notice of the contracting party before or at the time the contract is made. If notice of the exemption clause is given after the contract has been made, it will have no effect.

case [9.390] The plaintiff and her husband booked into the defendant’s hotel. They went up to their room where on one of the walls a notice was displayed stating that: “The proprietors will not hold themselves responsible for articles lost or stolen unless handed to the manageress for safe custody”: at 542. The plaintiff’s furs were stolen from the room as a result of negligence on the part of the hotel staff. It was held that the defendants were liable for the loss since the exemption clause was not incorporated in the contract. Thus, the contract had already been made before the plaintiff and her husband went up to their room and so the notice could not thereafter affect her rights: Olley v Marlborough Court Ltd [1949] 1 KB 532 at 548-549.

chapter 9 Contents and Interpretation of the Contract

[9.400] Furthermore, if the document handed over is one which a reasonable person would not expect to contain contractual terms, that is, would regard it merely as a receipt or voucher, then an exemption clause contained in it cannot be relied upon to exclude liability.

case [9.410] C took a dress for dry cleaning to B and received at the time of deposit a docket on the face of which appeared printed conditions purporting to exempt the firm from liability for loss or injury. When the frock was returned to C, it was found to be damaged. The court, in deciding that B was liable for damages and had not discharged the onus of proving that the printed conditions modified the contract, took into account: (i)

the docket was one which might reasonably be understood to be only a voucher for the customer to produce when collecting the frock, and not as containing conditions exempting the firm from their common law liability for negligence: at 6;

(ii)

the onus was on the firm of proving that the person receiving the docket was aware, or ought to be treated as aware, that it was delivered not merely as a voucher or receipt, but was intended to convey to him the knowledge of the special conditions upon it and that the person delivering it intended to modify the effect of the contract: Causer v Browne [1952] VLR 1 at 7.

[9.420] (c)

By showing that the parties had intended to contract on the same basis as the terms used in a previous course of dealing which had included an exemption clause: Henry Kendall & Sons v William Lillico & Sons Ltd [1969] 2 AC 31 at 90, 113. However, it would seem that the implication of an exemption clause in a later contract by virtue of a previous course of dealing between the parties may be narrowly confined and require proof that the party against whom the exemption clause is invoked had actual knowledge of it: Eggleston v Marley Engineers Pty Ltd (1979) 21 SASR 51 at 62, 66. Where an invoice containing an exemption clause was sent after each previous contract was performed, the clauses on the invoice were not incorporated into a subsequent contract between the parties. The invoice was a claim for payment rather than a contract document: La Rosa v Nudrill Pty Ltd [2013] Aust Contract Reports 90-383; [2013] WASCA 18 at [47], [88], [93].

[9.430] 2. If the nature of an exemption clause is misrepresented to the other party who does not read it, the party seeking to rely on the exemption clause will not be permitted to do so

case [9.440] B took a dress to A to be cleaned and was asked to sign a receipt which contained, among other terms, a clause that the article “is accepted on condition that the company is not liable for any damage howsoever arising”. B asked why she had to sign and was told that A would not accept liability for damage to beads or sequins. B then signed. The dress was returned stained. It was held that A could not rely on the clause because B’s signature was obtained by misrepresentation as to the effect of the document: Curtis v Chemical Cleaning & Dyeing Co Ltd [1951] 1 KB 805 at 808-809; see also Liaweena (NSW) Pty Ltd v McWilliams Wines Pty Ltd [1991] ASC 56-038 at 56,621 (NSWCA). [9.450] 3. An exemption clause will be construed strictly and any ambiguity resolved against the person seeking to rely on it

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This is known as the “contra proferentum” rule. For example, exclusion of liability for breach of warranty will not exclude liability for breach of condition: Wallis, Son & Wells v Pratt & Haynes [1911] AC 394 at 396-397. Furthermore, exclusion from liability for breach of implied conditions and warranties will not protect a party from breach of an express term of the contract: Andrews Bros (Bournemouth) Ltd v Singer & Co Ltd [1934] 1 KB 17 at 23, 25.

case [9.460] The conditions of sale at an auction provided that “as all lots are available for inspection previous to the commencement of sale, the same are sold with all faults, if any”: at 635. It was held that the operation to be given to the words “with all faults” was restricted by the earlier words, so that the “faults” referred to were only faults which would be revealed by an inspection and did not extend to exclude liability for latent, that is, hidden, defects in the goods purchased: Elder Smith Goldsbrough Mort Ltd v McBride [1976] 2 NSWLR 631 at 641, 643. [9.470] 4. An appropriately worded exemption clause can exclude a party from liability for negligence Exemption clauses may limit or exempt liability for negligence: Davis v Pearce Parking Station Pty Ltd (1954) 91 CLR 642 at 649; Neill v Fallon [1995] Aust Torts Reports 81-321 at 62,131-62,132. A properly worded exemption clause need not expressly mention liability in negligence in order to exclude such liability. For example, a clause that excluded liability for “all claims and demands whatsoever in respect of the contract” was held to be exclude liability for negligence: MWH Australia Pty Ltd v Wynton Stone Australia Pty Ltd (in liq) (2010) 31 VR 575 at [87]–[88]. [9.480] 5. Exemption clauses will not normally be construed as limiting or excluding liability for acts done outside the terms or scope of the contract In Council of the City of Sydney v West (1965) 114 CLR 481, the High Court said that it is a question of interpretation of the contract as a whole whether or not a particular exemption clause is wide enough to exclude liability for the alleged breach of contract.

case [9.490] In Council of the City of Sydney v West (1965) 114 CLR 481 the plaintiff parked his car at a parking station and received a ticket which contained the following: “The council does not accept any responsibility for the loss or damage to any vehicle … however such loss, damage … may arise or be caused”, together with a statement that the ticket must be presented before taking delivery of the vehicle. The evidence suggested that an unauthorised person obtained a duplicate ticket by falsely representing that he had lost the original, and that, by presenting the duplicate ticket, obtained possession of the plaintiff’s car: at 487–488. It was held that the clause did not protect the council as the release of the car was not merely a negligent act but was a delivery not authorised by the contract: at 489–490, 504. [9.500] The House of Lords had occasion to apply these principles in Photo Production Ltd v Securicor Transport Pty Ltd [1980] AC 827:

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case [9.510] The defendant company, Securicor, contracted to provide a night patrol service to the plaintiff’s factory. While one of Securicor’s employees was on patrol at the factory one night, he deliberately started a small fire by throwing a match onto some cartons. The fire got out of control and ultimately destroyed a large part of the factory. The plaintiff sued Securicor for damages on the ground that they were liable for the act of their employee. Securicor relied on an exemption clause in the contract which provided that “under no circumstances” were they to be “responsible for any injurious act … by any employee of the company unless such act … could have been foreseen and avoided by the exercise of due diligence … nor … any loss suffered by the customer through … fire … except … as … solely attributable to the negligence of the company’s employees acting within the course of their employment”: at 840. The House of Lords held that the question whether an exemption clause applied when there was a “fundamental breach” or any other breach turned on the construction of the whole contract including any exemption clause: at 842-843. Although Securicor was in breach of their implied obligation to operate their service with due and proper regard to the safety and security of the plaintiff’s factory, the exemption clause was clear and unambiguous and protected Securicor from liability: Photo Production Ltd v Securicor Transport Pty Ltd [1980] AC 827at 846, 851. [9.520] The Australian High Court reaffirmed the approach it had taken in Council of the City of Sydney v West (1965) 114 CLR 481 (see [9.490]) in its decision in Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 509:

case [9.530] In that case a contract between a broker and his client in respect of dealings on the futures commodities market contained a clause excluding liability by the broker to the client. The clause provided: “The Client finally acknowledges that the Agent will not be responsible for any loss arising in any way out of any trading activity undertaken on behalf of the Client whether pursuant to this Agreement or not …”. The contract further contained a clause limiting the liability of the broker, in the cases where liability had not been totally excluded, to damages which “shall not in any event (and whether or not such liability results from or involves negligence) exceed one hundred dollars”: at 505-506. The broker was proved to have exceeded his authority under the contract to act for the client in respect of certain dealings. The High Court held (1) that the clause excluding liability when properly construed did not protect the broker since it related only to transactions undertaken with the client’s authority, but (2) the limitation clause was effective to limit the extent of the broker’s liability for the substantial losses suffered by the client as a result of the broker’s unauthorised dealings: Darlington Futures Ltd v Delco Australia Pty Ltd (1986) 161 CLR 500 at 511.

Further reading SA Christenson and WD Duncan, Commercial Contracts – Principles and Construction (Federation Press, Sydney, 2014).

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K Lewison and D Hughes, The Interpretation of Contracts in Australia (Thomson Reuters, Sydney, 2012). J Thomson, K Martin and L Warnick, Commercial Contract Clauses: Principles and Interpretation (Thomson Reuters, Sydney, 2012). See also contract texts listed at the end of Chapter 2.

chapter 10

Operation of the Contract [10.20] Privity of contract ............................................................................................................................................ 174 [10.80] Liability for inducing a breach of contract........................................................................................... 176 [10.100] Assignment of contracts.......................................................................................................................... 177

Introduction [10.10] We pass next to a consideration of the operation of a contract, that is, the rights and liabilities under a contract. In particular, the following topics are considered: 1.

Privity of Contract.

2.

Liability for Inducing a Breach of Contract.

3.

Assignment of Contracts.

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Privity of contract General principle [10.20] The doctrine of privity of contract means that a contract cannot confer rights or impose obligations on any person except the parties to the contract. In other words, the general rule is that only the parties to a contract: (a)

acquire rights under it; and

(b)

incur liabilities under it.

In certain circumstances rights and liabilities may pass to persons other than the original parties either by their own act (that is, by assignment) or by operation of law: see [10.100]. The basic principle, then, is that “a person not a party to a contract may not himself sue upon it so as directly to enforce its obligations”: Coulls v Bagot’s Executor & Trustee Co Ltd (1967) 119 CLR 460 at 478. Thus, if A agrees with B to do something for the benefit of X, X cannot sue A if A fails to fulfil his promise. 1 However, although a third person, X, cannot sue A on her or his promise to B, B may have a remedy against A for breach of contract. The application of these principles can be seen in the leading case of Beswick v Beswick [1968] AC 58.

case [10.30] B transferred his coal merchant business to his nephew who promised in return to pay B an annuity during B’s lifetime and after B’s death to pay a slightly smaller annuity to B’s widow. Following B’s death, the nephew failed to make the promised payments to B’s widow: at 70. The widow brought an action against the nephew both in her personal capacity and as administratrix of B’s estate: at 71. The House of Lords held that the widow could not succeed in her personal capacity as she was not a party to the contract between B and his nephew: at 72-73, 81, 83, 92-93, 95. However, it was further held that she could succeed in her capacity as B’s administratrix, that is, as the legal representative of B who would have been entitled to sue the nephew for breach of contract: at 73, 81-82, 88. Accordingly, in her capacity as administratrix of B’s estate, B’s widow obtained an order for specific performance of the nephew’s promise to B to pay her the annuity: Beswick v Beswick [1968] AC 58. [10.40] There is an exception to the doctrine of privity of contract where it can be established that a contracting party entered into the contract as agent of the third party, since in such a case the third party would be a party to the contract: Port Jackson Stevedoring Pty Ltd v Salmond & Spraggon (Aust) Pty Ltd (1980) 144 CLR 300 at 304–305 (PC). A further exception is where a contracting party constituted themselves a trustee for the third party of the rights given by the contract. However, it has usually proved difficult to establish a trust relationship since “the intention to constitute the trust must be affirmatively 1

This is no longer the position in Queensland where by virtue of the Property Law Act 1974 (Qld), s 55 a promise by A to B for valuable consideration, to do something for the benefit of a third party beneficiary X is, on acceptance by X, enforceable by X against A. There are similar provisions in Western Australia (Property Law Act 1969 (WA), s 11(2), (3)) and the Northern Territory (Law of Property Act 2000 (NT), s 56).

chapter 10 Operation of the Contract

proved”, that is, there must be a clear expression of intention to create a trust and such intention cannot necessarily be inferred from general words in a contract: Vandepitte v Preferred Accident Insurance Corp of New York [1933] AC 70 at 79 (PC). In the absence of an agency or trust relationship, the doctrine of privity of contract is capable of working hardship by preventing a third party from enforcing a benefit to which they appear to be entitled under the contract.

The decision of the High Court in Trident's case [10.50] In Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107, a majority of the High Court held that the doctrine of privity of contract does not apply to contracts of insurance. 2 However, the real importance of the case lies in its potential application to other kinds of contract. The facts were as follows:

case [10.60] T Ltd entered into an insurance contract with B Ltd, to provide cover against liability in respect of alterations being carried out at the latter’s limestone crushing plant. The public liability policy was expressed as extending not only to B Ltd and all its related companies but also to all contractors, subcontractors and suppliers. M Ltd, the principal contractor at the plant, was held liable for injuries sustained by a crane driver employed by one of its subcontractors. M Ltd sought an indemnity under the insurance policy between T Ltd and B Ltd. T Ltd refused the claim on the ground that M Ltd was not a party to the contract and had given no consideration. It was held by a majority of the High Court (4:3), affirming the decision of the New South Wales Court of Appeal, that T Ltd was bound to indemnify M Ltd under the insurance policy with B Ltd: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107. [10.70] The majority of the court was critical of the general operation of the doctrine of privity of contract, as well as its particular application to insurance contracts. Mason CJ and Wilson J commented that: “There is much substance in the criticisms directed at the traditional common law rules as questions debated in the cases reveal”: Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 at 118. Toohey J recognised that it would be “unreal” to think that the decision “would not have implications for privity of contract in other situations”: at 163. Gaudron J went further than the other members of the court in saying that in her view: “[A] promisor who has accepted an agreed consideration for a promise to benefit a third party comes under an obligation to the third party to fulfil that promise and the third party acquires a right to bring an action to secure the benefit of that promise”: at 173. On the other hand, the dissenting minority were firmly of the view that the “settled and fundamental” doctrine of privity was too entrenched to be overturned by the court: at 128. Accordingly, there is uncertainty as to the extent to which Australian courts will continue to strictly adhere to the doctrine of privity of contract. Applying the doctrine of privity of contract, in Jones v Bartlett (2000) 205 CLR 166 the High Court held that the child of a tenant could not enforce the lease against the landlord, since the child was not a party to the lease. The terms sought to be enforced were the landlord’s 2

The Commonwealth Insurance Contracts Act 1984 (Cth), s 48 effectively abrogated the common law doctrine of privity of contract in its application to insurance contracts to which the Act applies: see [25.730]. However, the facts of Trident General Insurance Co Ltd v McNiece Bros Pty Ltd (1988) 165 CLR 107 occurred before the coming into operation of the Act, and hence the Act did not apply to the facts of the case.

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statutory obligations to repair and maintain. Gummow and Hayne JJ pointed out that none of the exceptions or qualifications discussed in the Trident decision applied in this case: at [140].

Liability for inducing a breach of contract [10.80] Although no right of action in contract generally exists against a person who is not a party to a contract, the law, on principles of tort liability, will make such third person liable to an action if, without sufficient justification, they induce a party to a contract to commit a breach of existing obligations. 3 Inducing a party to lawfully terminate a contract does not constitute inducing a breach of contract: Sanders v Snell (1998) 196 CLR 329 at [23]. Intentionally, and without justification, inducing a person to break a contract with another is a tort. It must be proved that the breach was knowingly and intentionally procured: Woolley v Dunford (1972) 3 SASR 243 at 266, 268; Australian Development Corporation Pty Ltd v White (2001) 189 ALR 266 at [89]. “Wilful blindness” or “reckless indifference” will satisfy the knowledge requirement: LED Technologies Pty Ltd v Roadvision Pty Ltd (2012) 199 FCR 204 at [1], [47]–[54], [96]. Interference with contractual rights may be justified where there is just cause for the interference. However, it is generally difficult to establish such justification. An illustration of a case where justification was held not to exist is Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530:

case [10.90] Z had entered into an agency agreement with TOC. Under the agreement, Z was required to sell memberships in an “Olympic Club”. The Organising Committee for the Sydney Olympics (SOCOG) induced TOC to terminate its contract with Z. SOCOG sought to justify its inducement of the termination on the ground that it was required by contract to protect intellectual property rights relating to the Olympics. Z had used that intellectual property without authorisation. The High Court held that to justify inducement of a breach of contract the defendant must show that they were protecting a “superior legal right”: at [138]. That superior right must be of a proprietary nature (such as real or personal property) or be conferred by statute: at [144]. A right to contractual performance is not a superior legal right but is merely an equal right: at [160]. An equal right will not provide justification: at [139]. An inducement is only justified where the defendant’s actions go no further than is reasonably necessary to protect its rights: at [161]. On the facts, SOCOG’s actions in inducing the breach went further than would have been reasonably necessary, since less drastic alternative courses of action had been available: Zhu v Treasurer of the State of New South Wales (2004) 218 CLR 530 at [164], [166].

3

See P Edmundson, “Sidestepping Limited Liability in Corporate Groups Using the Tort of Interference with Contract” (2006) 30 Melbourne University Law Review 62; JJW Pembroke-Birss, “The Defence of Justification to the Tort of Inducing Breach of Contract: An Australian Perspective” (2010) 24(4) Commercial Law Quarterly 3; C Bailey, “Facilitation or Manipulation: What Conduct gives rise to Liability for Inducing or Procuring a Breach of Contract?” (2014) 22 Tort Law Review 22.

chapter 10 Operation of the Contract

Assignment of contracts [10.100] In order to enforce rights or to incur liabilities under a contract, a person must be one of the parties to such contract. However, in certain circumstances, the original contracting parties may assign their rights and liabilities to assignees who may then enforce, or be bound by, the terms of the agreement. 4

Assignor [10.110] An assignor is the one who assigns or transfers to another.

Assignee [10.120] An assignee is the one to whom an assignment is made.

Assignment [10.130] An assignment of a contract is the act by which one party to a contract substitutes another person for themselves as a party to that contract either for all the purposes of the contract or for some purposes only.

Assignment of liabilities [10.140] A person liable under a contract may not transfer their liability to another person without the consent of the other party to the contract and the consent of the “transferee”. However, there are certain rare exceptions to the general rule. 5 For example, as regards the holder of shares in a limited company, there is a contract between that shareholder and the company – an obligation is placed upon the shareholder to pay calls whilst the shareholder receives benefits by way of dividends. Provision is made by the Corporations Act 2001 (Cth) whereby a member may transfer their shares to another person and in such a case the transferor passes over to the transferee their obligations to pay to the company the amount remaining unpaid on their shares. Other than this manner of assignment of liabilities, there exists the method of “novation”, whereby obligations under a contract may be assigned by a party to the contract to another person not a party, so that “a new contract takes the place of the old”: ALH Group Property Holdings Pty Ltd v Chief Commissioner of State Revenue (2012) 245 CLR 338 at [12]. “Novation is a transaction by which all parties to a contract agree that a new contract is substituted for one that has already been made; it involves the extinguishment of one obligation and the creation of a substituted obligation in its place…intention is crucial to show a novation, although intention may be express or implied from the circumstances”: Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 at [112] per Rares J. Novation can thus occur by express words or by implication: Hillam v Iacullo (2015) 90 NSWLR 422 at [50]-[51]. 6

Assignment of rights [10.150] Although at one time at common law debts and other choses in action were not assignable in the true legal sense (unless they were represented by negotiable instruments) they are now made assignable by 4

See generally GJ Tolhurst, “The Efficacy of Contractual Provisions Prohibiting Assignment” (2004) 26 Sydney Law Review 161; GJ Tolhurst, “Assignment of Contractual Rights: The Apparent Reformulation of the Personal Rights Rule” (2007) 29 Australian Bar Review 4; GJ Tolhurst and JW Carter, “Prohibitions on Assignment: A Choice to be Made” (2014) 73 Cambridge Law Journal 405.

5 6

See MP Furmston, “The Assignment of Contractual Burdens” (1998) 13 Journal of Contract Law 42. See J Bailey, “Novation” (1999) 14 Journal of Contract Law 189.

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virtue of special statutory provisions in force in each State. A cause of action may be assigned where the assignee has a genuine commercial interest in the enforcing the assignor’s claim: Insight SRC IP Holdings Pty Ltd v Australian Council for Educational Research Ltd (2013) 101 IPR 484 at [27].

Assignments by statute [10.160] These provisions 7 allow an assignee of a debt or other legal chose in action to take action against the debtor in the assignee’s own name provided that: (a)

the assignment is absolute and not merely by way of charge;

(b)

the assignment is in writing; or

(c)

express notice of the assignment is given in writing to the debtor.

In order for notice of an assignment to be effective, it is necessary that the debtor actually receive such notice. Accordingly, where notice of an assignment of a margin loan was sent by post by a bank but not received by the debtor, there was no effective notice of the assignment. Further, a generalised message on the bank’s website that the majority of its margin loans were transferred was not effective notice to the debtor of assignment of his loan to a third party: Goodridge v Macquarie Bank Ltd (2010) 265 ALR 170 at [148]–[149]. The assignee takes their rights “subject to equities” and cannot obtain a better title than that of the transferor. Provision is also made whereby a person liable can, if there is a dispute between the assignor and assignee, pay the money into court. It will be noticed that the assignment must be absolute and not merely by way of charge. Unless this was the case the debtor would be in doubt as to whom he or she should pay, or what amount the debtor would be required to pay to the original creditor and to the assignee. As the assignment must be absolute, the debtor is not under any obligation to make inquiries on the due date as to how the arrangements stand between the assignor and the assignee. However, a mortgage of rights in the usual form used under basic property law concepts, that is to say an assignment by the assignor (in consideration of a loan made by the assignee) to the assignee of the right to the debt coupled with a provision that on repayment of the loan the assignee will reassign to the assignor, is regarded as being absolute and not by way of charge. There are certain other statutes which make provision for the assignment of the particular types of chose in action with which those statutes deal. The more important of these for our purposes are life, fire and marine insurance policies (see Chapter 25), and company shares: see Chapter 27. In addition, negotiable instruments form a special class of assignable contracts: see Chapter 23. Although the common law did not recognise true assignments prior to these statutes, a transfer of rights was nevertheless possible by novation on the same kind of basis as the novation of liabilities previously referred to. A novation is not strictly an assignment, as the original creditor does not simply assign their rights to the new creditor. There is a rescission of one contract with the substitution of a fresh one under which the same rights and obligations as are contained in the first contract are to be performed by different parties. This is known as a “tripartite agreement”, and involves the three parties, the debtor, the old creditor and the new creditor (assignee). This has the effect of an assignment agreed to by the debtor, who through this agreement becomes bound to the new creditor. A transfer of rights in this way is still used in appropriate cases. 7

Conveyancing Act 1919 (NSW), s 12; Property Law Act 1958 (Vic), s 134; Property Law Act 1974 (Qld), s 199; Law of Property Act 1936 (SA), s 15; Property Law Act 1969 (WA), s 20; Conveyancing and Law of Property Act 1884 (Tas), s 86; Civil Law (Property) Act 2006 (ACT), s 205; Law of Property Act 2000 (NT), s 182.

chapter 10 Operation of the Contract

Assignments in equity [10.170] Courts of equity apply different rules from those of the common law relating to assignment and, accordingly, assignments of choses in action are recognised and enforced by them. This applies not only to equitable but also to legal choses in action.

Legal chose in action [10.180] A legal chose in action is a right of action that can be enforced in a court of law, for example action on a bill of exchange or to recover a debt due under a contract.

Equitable chose in action [10.190] An equitable chose in action is a right of action that can only be enforced in a court of equity, for example an interest in a trust fund or legacy. An equitable assignment of a chose in action (which may be itself either a legal chose or an equitable chose) may be effected without writing, no particular form of words being necessary, so long as the intention is shown that the chose in action is to be transferred or appropriated to the use of the assignee. The following points concerning an equitable assignment should be noted: 1.

Notice is not necessary to complete the assignee’s equitable right as against the original creditor or the latter’s representatives, including assignees in bankruptcy, but the claims of competing assignees rank as between themselves not according to the order in date of the assignments, but according to the dates at which they have respectively given notice to the debtor: Dearle v Hall (1828) 3 Russ 1; 38 ER 475 at 20-21 (Russ); 482-483 (ER). This rule applies to give priority over the assignee in bankruptcy of the assignor even though the bankruptcy of the assignor occurred before the date of the assignment: Australian Mutual Provident Society v Gregory (1908) 5 CLR 615 at 626–627, 635. It applies even though an assignee knew of the earlier assignment when he gave notice but not if he knew of the earlier assignment when he took his assignment. Verbal notice is sufficient but it is advisable for it to be in writing.

2.

The assignee takes “subject to equities”, that is, subject to such defences that the debtor might have raised against the assignor. In other words, the assignee can only receive such title as the assignor is able to give and cannot be in a better position.

3.

The question whether valuable consideration is necessary to support an equitable assignment is by no means clear, but it has been held that it is necessary in order to support an equitable assignment of a legal chose in action (Bruce v Tyley (1916) 21 CLR 277 at 295) and an equitable assignment of future property such as book debts: Holroyd v Marshall (1862) 10 HLC 191; 11 ER 999 at 209 (HLC); 1006 (ER).

However, lack of valuable consideration is fatal only when the donor has failed to perform some act which he or she could have performed to pass legal title. If the donor has done everything possible on their part they have made a perfect gift sufficient to pass an equitable title.

Assignment by operation of law [10.200] Another form of assignment occurs in the transfer of the rights under a contract by operation of law. The most common examples are:

Death [10.210] The estate of a deceased person passes to their executor or administrator on a grant of probate or letters of administration and with it rights under contracts. The liabilities of a deceased person under

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contracts made by her or him also devolve on the executors or administrators but the extent of the liability is limited to the assets that come into their hands as such executors or administrators. There is an exception to the rule that the rights and liabilities of a person under contract devolve on their personal representative in the case of contracts requiring the personal skill or services of the deceased. On the death of one of the persons by whom a joint promise has been made, the liability devolves on the survivors, the representatives of the deceased being under no liability. In the case of a promise by partners, equity construes the promise as joint and several. On the death of one of the several joint promisees the right of action on the promise vests in the survivors.

Bankruptcy [10.220] The estate of a bankrupt passes to the Official Trustee in Bankruptcy unless and until a registered trustee is appointed in which event the bankrupt’s estate will vest in the registered trustee: see Chapter 31.

Contracts for personal services not assignable [10.230] A contract with a person having special qualification is of a personal nature and probably would not be able to be performed by another person to the satisfaction of the other original party and for this reason it is not assignable; for example a contract between publisher and author is not assignable.

Further reading A Guest, Guest on the Law of Assignment (2nd ed, Sweet & Maxwell, London, 2015). M Smith and N Leslie, The Law of Assignment (2nd ed, Oxford University Press, Oxford, 2013). G Tolhurst, The Assignment of Contractual Rights (2nd ed, Hart, Oxford, 2016). See also contract texts listed at the end of Chapter 2.

chapter 11

Termination of a Contract [11.20] Termination by performance..................................................................................................................... 182 [11.30] Termination by agreement......................................................................................................................... 182 [11.160] Termination by breach............................................................................................................................... 185 [11.310] Termination by frustration ...................................................................................................................... 190 [11.510] Termination by operation of law........................................................................................................... 196

Introduction [11.10] In this chapter we consider how a contract may be terminated, that is, brought to an end. A contract may be terminated in the following ways: 1.

Performance – fulfilment of its provisions.

2.

Agreement between the parties.

3.

Breach – where one of the parties fails to fulfil their obligations under the contract.

4.

Frustration – where some supervening event prevents further performance of the contract.

5.

By operation of law.

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Termination by performance [11.20] When the parties to the contract fulfil their obligations to one another, the contract is terminated, that is, comes to an end, by performance. Complete performance in strict accord with the terms of the contract is necessary, otherwise a breach of contract results.

Termination by agreement Termination under the original contract Express power to terminate [11.30] A contract may be terminated through the happening of an event as provided for in the original agreement itself. For example, a contract of loan with a bank may provide that the bank can terminate its contractual arrangements with the borrower in the “Event of Default” by the borrower and declare that the moneys lent are immediately due and payable: Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd (2000) 170 ALR 579 at [35]–[36] (HC). A further common illustration is a stipulation in the contract that it will terminate at the expiration of a specified period, for example a contract for a lease for a specified number of years. At the end of the time stipulated the lease will automatically come to an end.

Implied right to terminate [11.40] Where a contract does not contain a provision as to its duration, the court may imply a right to terminate on giving reasonable notice to the other party. For example, where a distributorship agreement was silent as to its duration, the New South Wales Court of Appeal held that a period of six months’ notice prior to terminating the contract was appropriate. The contract would otherwise have been of indefinite duration: Crawford Fitting Co v Sydney Valve & Fittings Pty Ltd (1988) 14 NSWLR 438 at 441, 453.

Termination by subsequent agreement [11.50] A contract is the result of agreement and by means of a further agreement the contract may be terminated. A subsequent agreement must be valid in order to modify a prior contract. A void agreement cannot rescind or vary a valid earlier contract: Coghlan v Pyoanee Pty Ltd [2003] 2 Qd R 636 at [9], [32]. A subsequent agreement may be: (a)

to cancel the original contract; or

(b)

to vary the terms of the original contract.

(a) Cancellation of original contract Mutual termination [11.60] This occurs where both parties agree to cancel the original contract. However, such an agreement can only operate as a termination of the original contract where there is still something to be done by each party under the original contract. In such a case the promise by one party to abandon their rights under the original contract would be given in consideration of the other party’s promise to do likewise.

chapter 11 Termination of a Contract

Release [11.70] If one party has completed their undertaking and the other has not, then the only method of cancelling the contract is by agreement under seal to release the defaulting party or by the giving of some further consideration for the release by the party still under an obligation. This consideration must not be something that the party is already legally bound to do.

Accord and satisfaction [11.80] In the case of cancellation of the contract by agreement to release, where the release involves the giving of some further consideration, the principle is often referred to as that of accord and satisfaction. 1 This principle applies where there is an agreement (accord) between two parties that the debtor shall do or pay something in satisfaction of the cause of action and that the claimant will accept the same. When the payment or performance is completed and satisfaction obtained, then such discharge of the original right of action has been effected by accord and satisfaction. This principle of accord and satisfaction also covers the case of the discharge of a cause of action for breach of the contract. Thus it frequently happens that after a breach of contract has taken place, the party entitled to bring an action in respect of the breach agrees to accept something else from the party who broke the contract other than performance of the outstanding obligations. The fresh contract is intended to satisfy the outstanding obligations of the earlier one. This operates as a discharge of the old contract. There must exist accord (agreement) and satisfaction. “The essence of accord and satisfaction is the acceptance by the plaintiff of something in place of [their] cause of action. What [the plaintiff] takes is a matter depending on [their] own consent or agreement. It may be a promise or contract or it may be the act or thing promised. But, whatever it is, until it is provided and accepted the cause of action remains alive and unimpaired”: Tallerman & Co Pty Ltd v Nathan’s Merchandise (Victoria) Pty Ltd (1957) 98 CLR 93 at 114. The party in default must agree to do something different from that which they were bound to do under the original contract. For example, if A owes B $20 and sends him $10 “which is to be taken in full satisfaction of my debt”, such a condition would not bind B as payment of a smaller amount than is owing is not a discharge: Foakes v Beer (1884) 9 App Cas 605 at 613, 623, 629. In order to operate as a discharge the payment of a smaller amount must be accompanied by some further consideration that A is not already legally bound to furnish. This further consideration given by A may comprise a different mode of performance, for example in addition to paying part of the balance, A may also give B an autographed book which B takes in full satisfaction of his rights. The consideration may also be payment before the due date. Again, the further consideration may simply take the form of a different method of payment.

(b) By substituted agreement [11.90] A new agreement may be made providing for an alteration in the terms of the original contract so that a new contract is substituted for the old one. The simplest example of a contract being terminated by the formation of a new contract is novation: see [10.140]. If a new contract is made with a view to discharging an existing one the rule is that the new contract need not necessarily be in the same form as the original one. A simple contract may be terminated by word of mouth even if the original contract was required by law to be in writing providing the intention to rescind, as distinct from an intention to vary, is clear: Morris v Baron & Co [1918] AC 1 at 11, 18, 26, 38–39. 1

See generally S Currie, “Accord and Satisfaction by Way of Full Settlement Cheque” (2011) 27 Journal of Contract Law 119.

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A contract in writing may be varied by an oral agreement if it is not of a class required by law to be in writing. But if it is desired to vary the terms of a simple contract required to be in writing it is necessary that the variation be in writing. If such variation is not in writing it will be ineffective and the original contract will remain enforceable. This, as noted before, is not the rule when the contract is cancelled. The reason for the difference between cancellation and variation is that those statutes that require writing in the making of a contract do not require writing as a formality for the cancellation of such a contract. Where the parties intend by a subsequent agreement to substitute a new agreement for their original contract, this will have the effect of terminating the original contract but the new agreement must comply with the statutes to be enforceable. A contract made by deed may be varied or terminated by a subsequent simple contract for valuable consideration. Although at common law an obligation arising under a deed could not be varied or discharged except by another deed, equity took a different view. Since the rules of equity prevail in the event of conflict with the rules of the common law, it is a good defence at law to an action on a deed to show that the obligation under the deed has been varied or discharged by a subsequent simple contract for valuable consideration: Berry v Berry [1929] 2 KB 316 at 319-320.

Contingent conditions [11.100] The parties to a contract may make the performance of their contract conditional upon the occurrence of a specified event. They may also make performance of their contract conditional upon an event not occurring. Such contingent conditions may take the form of a condition precedent or a condition subsequent.

Conditions precedent [11.110] A distinction must be made between: (a)

a condition precedent to the formation or existence of a contract; and

(b)

a condition precedent to the performance of a party’s obligations under a contract.

As explained by Mason J in Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 551: “There is an obvious difference between the condition which is precedent to the formation or existence of a contract and the condition which is precedent to the obligation of a party to perform his part of the contract and is subsequent in the sense that it entitles the party to terminate the contract on non-fulfilment. In the first category the transaction creates no rights enforceable by the parties unless and until the condition is fulfilled. In the second category there is a binding contract which creates rights capable of enforcement, though the obligation of a party, or perhaps of both parties, to perform depends on fulfilment of the condition and non-fulfilment entitles him to terminate.” By way of example:

case [11.120] A contract for the sale of land contained the following clause: “This contract is subject to and conditional upon the approval of the [local council] to a plan of subdivision … within six calendar months from the date hereof. In the event that such approval is not obtained then the purchaser may at their option cancel this contract.” Approval was not obtained and the purchaser waived this condition but the vendor refused to complete: at 156-157.

chapter 11 Termination of a Contract

The High Court held that the approval referred to was expressed in the form of a condition precedent to the obligation to complete the contract and not as a condition precedent to the formation of the contract: at 157. The “plain implication” of the condition was “that if the purchaser [did] not choose to cancel the contract the vendor [had] no right to treat it as being at an end”: at 158. Accordingly, the purchaser had the option to choose to allow the contract to remain on foot when the condition was not satisfied, and since he had elected to waive the condition was entitled to specific performance of the contract: Sandra Investments Pty Ltd v Booth (1983) 153 CLR 153 at 161-162.

case [11.130] Another case involved negotiations for the lease of a service station. The respondent’s offer stated that the appellant was to “provide an environmental site assessment prior to the execution of the proposed lease”. This was not done. The South Australian Full Court held that there was no binding contract between the parties: at [82]. The respondent was not prepared to enter into a lease until the assessment was provided: at [80]. Provision of the assessment was a condition precedent to the formation of a contract: at [81], [107]. This condition was never satisfied and therefore there was no contract: Whittle v Parnell Mogas Pty Ltd (2006) 94 SASR 421. [11.140] Generally, the court will tend to favour a construction leading to the conclusion that a particular stipulation is a condition precedent to the performance of the contract since: “In most cases it is artificial to say, in the face of the details settled upon by the parties, that there is no binding contract unless the event in question happens. Instead, it is appropriate in conformity with the mutual intention of the parties to say that there is a binding contract which makes the stipulated event a condition precedent to the duty of one party, or perhaps of both parties, to perform. Furthermore, it gives the courts greater scope in determining and adjusting the rights of the parties. For these reasons the condition will not be construed as a condition precedent to the formation of a contract unless the contract read as a whole plainly compels this conclusion”: Perri v Coolangatta Investments Pty Ltd (1982) 149 CLR 537 at 552 per Mason J.

Condition subsequent [11.150] A condition subsequent is a condition contained in a contract upon the happening of which at a subsequent time the contract will be terminated. In such a case the parties’ obligation to perform the contract is immediately binding but will come to an end should the event specified in the condition occur. For example, in a charter-party an owner agrees to make the voyage on certain terms, “act of God, dangers of the seas, etc” excepted. If one of the excepted risks occurs, the owner is relieved from performing the contract: Geipel v Smith (1872) LR 7 QB 404 at 412.

Termination by breach [11.160] We now consider the circumstances in which a breach of contract by one party may entitle the other party to terminate the contract. A right to terminate a contract is by no means an invariable consequence of breach. There are some breaches of contract that do not give the innocent party the right to terminate the contract but merely entitle them to sue for damages. There are two basic situations to consider: (a)

where one party repudiates the whole contract by act or deed; and

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(b)

where one party breaks a term of the contract. 2

Repudiation of the contract [11.170] An innocent party has the right to terminate the contract where the other party repudiates their obligations under the contract, that is, demonstrates an absence of willingness or ability to perform their obligations under the contract.

Repudiation before the contract is due for performance: anticipatory breach of contract [11.180] Where a contract is entirely unperformed on both sides, for example, where the time for performance has not yet arrived and one party repudiates the contract, the other can treat the contract as terminated and sue immediately for damages for such breach. This is known as anticipatory breach of contract. It should be noted that the contract must be entirely repudiated. It would seem that the doctrine of anticipatory breach does not apply where the party not in default has fully performed all their obligations under the contract: MacKenzie v Rees (1941) 65 CLR 1 at 15. In such a case, the party who has fully performed their obligations cannot terminate the contract and claim damages for an anticipatory breach by the other party but must wait until there is an actual breach by the other party and then claim damages for that breach: Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 44.

Conduct amounting to repudiation [11.190] The most obvious case of repudiation is where a party to a contract expressly states that they are unwilling or unable to perform the contract. In the absence of an express statement, a party’s words or conduct may indicate that they are repudiating the contract. Furthermore, a party may repudiate a contract by putting it out of their power to perform the contract, for example where the seller of an antique car sells the car to a third person. In such a case, the original buyer can treat the seller as having repudiated the contract for the sale of the vehicle. Repudiation is determined by an objective test. It is concerned with the conduct of the repudiating party not their subjective state of mind. It is irrelevant that the party repudiating the contract believed that their action was justified under the contract: Sopov v Kane Constructions Pty Ltd (2007) 20 VR 127 at [9], [11], [112], [115].

Effect of repudiation [11.200] It should be observed that the mere fact that one party to a contract repudiates their obligations does not of itself automatically terminate the contract and discharge the other person from liability under it, since to permit such a result would mean that a contract could be terminated unilaterally. Repudiation gives to the other party to the contract an option either to ignore the breach and to insist upon performance when due, or to accept the repudiation and treat themselves as discharged from any further obligation under the contract. If the innocent party elects to treat themselves as discharged, he or she can immediately sue the defaulting party for damages whether or not the time for performance is due. On the other hand, if the 2

See generally JW Carter and Y Goh, “Concurrent and Independent Rights to Terminate for Breach of Contract” (2010) 26 Journal of Contract Law 103; JW Carter, Carter’s Breach of Contract (LexisNexis Butterworths, Sydney, 2011).

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innocent party does not elect to treat themselves as discharged, then the contract remains on foot for the benefit of both parties. The innocent party remains subject to all their own obligations and liabilities under the contract. The defaulting party has an opportunity not only to complete the contract but also, notwithstanding their previous repudiation of it, to take advantage of any intervening circumstance which would entitle her or him to decline to complete it: Avery v Bowden (1855) 5 E & B 714; 119 ER 647 at 727-728 (E & B), 652-653 (ER).

Breach in fulfilling terms of contract [11.210] A breach in performance usually involves not a complete and conscious repudiation of the whole contract but rather a breach of certain obligations under it. Whether the breach is so serious as to entitle the innocent party to treat the contract as repudiated, or whether he or she is bound to regard the contract as still on foot and is merely entitled to sue for damages, is a difficult question. The basic principle is that a breach in actual performance by one party entitles the other party to terminate the contract if one of two situations exists, namely: (a)

if the acts or omissions by the defaulting party are such as to show an intention to repudiate the whole contract, or to carry it out only in a manner inconsistent with their obligations under it; or

(b)

if there has been a breach of some “essential” or fundamental obligation under the contract.

Acts or omissions indicating an intention not to be bound [11.220] With the first rule the renunciation is not express but has to be implied from fragmentary acts and omissions. In Shevill v Builders Licensing Board (1982) 149 CLR 620 at 625 Gibbs CJ stated that: “[A] contract may be repudiated if one party renounces his liabilities under it – if he evinces an intention no longer to be bound by the contract … or shows that he intends to fulfil the contract only in a manner substantially inconsistent with his obligations and not in any other way … In such a case the innocent party is entitled to accept the repudiation, thereby discharging himself from further performance, and sue for damages.”

case [11.230] Eleven breaches of contract had been committed, none in itself sufficiently serious to be regarded as amounting to a repudiation. However, the court said that it was entitled to look at the breaches as a whole in determining whether the contract had been repudiated. In holding that there had been a repudiation, the court said it was clear that the party in breach only intended to fulfil the contract in a manner substantially inconsistent with his obligations under it: Hudson Crushed Metals Pty Ltd v Henry [1985] 1 Qd R 202 202 at 205, 208. [11.240] Where the lessee had committed a number of breaches of a lease including causing physical damage to the premises and a failure to repair the damage, subletting the premises without the consent of the lessor and a failure to pay rent, the High Court held that while the failure to pay rent may not have been sufficient on its own, this together with the other breaches amounted to a repudiation which justified the lessor terminating the lease: Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17 at 34-37; see also Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623.

Mutual abandonment [11.250] A contract may be discharged through mutual abandonment. This occurs where the conduct of both parties shows that they intend to put an end to the contract: Wallera Pty Ltd v CGM Investments Pty

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Ltd [2003] FCAFC 279 at [2], [40], [58]. Protector Glass Industries Pty Ltd v Southern Cross Autoglass Pty Ltd (2015) 18 BPR 35511; [2015] NSWCA 16 at [22], [98], [111]. Where a contract has been partly performed before abandonment, the courts presume that abandonment operates prospectively in order to protect accrued rights: Cedar Meats (Aust) Pty Ltd v Five Star Lamb Pty Ltd (2014) 45 VR 79 at [19].

Breach of an essential term [11.260] As regards the second rule, it is difficult to determine whether the party in breach has broken an essential obligation under the contract such as to entitle the other party to treat the contract as terminated, or whether the breach is of a less serious nature entitling the party not in default to damages only. On this point the High Court has said: “Whether a term of a contract is essential or not is a question of construction which is to be answered with due regard to the general nature of the contract considered as a whole and to its particular terms. See Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) 38 SR (NSW) 632 at 641-642, where Jordan CJ said: ‘The test of essentiality is whether it appears from the general nature of the contract considered as a whole, or from some particular term or terms, that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise, as the case may be, and that this ought to have been apparent to the promisor. … If the innocent party would not have entered into the contract unless assured of a strict and literal performance of the promise, he may in general treat himself as discharged upon any breach of the promise, however slight’”: DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 at 430-431. For example, the failure by the purchaser of land to pay a deposit in accordance with the terms of the contract of sale was held to constitute a breach of an essential or fundamental term of the contract entitling the vendor to rescind it. Payment of the deposit as stipulated by the contract was “an essential term going to the very root of the contract, the breach of which would immediately entitle the vendor to terminate the contract” and similarly, it was “a fundamental term the failure to perform which goes to the root of the contract and entitles the vendor to renounce further performance”: Brien v Dwyer (1978) 141 CLR 378 at 393 per Gibbs J. On the other hand, it would seem that consistently late payment of rent, without more, does not constitute repudiation of a lease: Shevill v Builders Licensing Board (1982) 149 CLR 620 at 627. This brings us to the matter of conditions and warranties.

Conditions and warranties [11.270] A condition is a term of a contract that is of such basic importance that breach of it gives rise to a right to treat the contract as at an end. A warranty is subsidiary to the main purpose of the contract so that its breach confers merely a right to sue for damages. If there is a breach of condition and the other party does not treat the contract as terminated, the condition sinks to the level of a warranty only. In some cases statute declares that certain conditions and warranties are implied in a contract, for example in the case of a sale of goods: see Chapter 14. Here there is no difficulty. In other cases the parties may expressly declare that a term of the contract is a condition or essential to the contract, for example by a stipulation that it is the basis or of the essence of the contract. However, the mere fact that the parties have used the word “condition” in their contract does not necessarily mean that they have used it in the strict technical sense that a breach of the term can be treated as a repudiation of the contract. The court may find that the parties have used the word “condition” in a non-technical sense as simply meaning a term of the contract and did not intend that breach of the term should have the effect of entitling one party to treat the contract as at an end: L Schuler AG v Wickman Machine Tool Sales Ltd [1974] AC 235 at 250,

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258, 264-265. In other cases the contract, without expressly saying so, may indicate that the parties attached sufficient importance to the stipulation to make it a condition of its validity. Where these guides from the intention of the parties are absent, the courts still look at the matter in terms of the distinction between condition and warranty but decide it on the nature of the whole contract and the relative importance of the term broken.

case [11.280] A lease provided that the payment of rent was an essential term. The lessee fell behind in paying the rent. The lessor terminated the lease before the end of its term. The lessor sought to recover arrears of rent due at the date of termination and loss of bargain damages for the remainder of the term of the lease. The High Court held that normally a covenant to pay rent would not be treated as a condition entitling termination for any breach. However, it is open to a lessor to provide that the obligation to pay rent is an essential term: at [42]. As a matter of construction, the lease at issue in this case treated the covenant to pay rent as an essential one: at [47]–[48]. An innocent party may terminate the contract for breach of a condition and sue for loss of bargain damages. An express contractual provision may provide that a term is a condition entitling the innocent party to sue for damages for loss of bargain: at [58]. Under this lease the undertaking to pay rent was a condition and loss of bargain damages could be recovered for its breach. A lessor can only obtain loss of bargain damages if they have tried without success to find a new tenant who will pay the same rent: Gumland Property Holdings Pty Ltd v Duffy Bros Fruit Market (Campbelltown) Pty Ltd (2008) 234 CLR 237 at [56]. [11.290] In commercial contracts the general rule is that stipulations as to time, except as to time of payment, are essential conditions. For further illustrations of the distinction between conditions and warranties, see [9.180].

Intermediate terms [11.300] In Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] QB 26, it was said that not all contractual undertakings fell into one of the two categories of “condition” and “warranty”: at 69, 71. 3 The more basic test was whether the breach had given rise to a situation where the party not in default had been deprived of substantially the whole benefit which they were entitled to expect from the contract. The Australian High Court adopted this approach in Ankar Pty Ltd v National Westminster Finance (Australia) Ltd (1987) 162 CLR 549 at 561-562: “… a term in a contract may stand somewhere between a condition and a warranty. Such an intermediate or innominate term, it has been held, is capable of operating, according to the gravity of the breach, as either a condition or a warranty. In Hongkong Fir the obligation of seaworthiness was readily classified as innominate because a breach of the obligation might be trivial, making damages an adequate remedy, or grave, in which event it should have effect as a breach of condition. … nothing less than a serious breach of an innominate term entitles the innocent party to treat the contract as at an end.” In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, the majority of the High Court described the Hongkong Fir doctrine as being part of the “mainstream law of contract” in Australia: at [50]. 3

See JW Carter, GJ Tolhurst and E Peden, “Developing the Intermediate Term Concept” (2006) 22 Journal of Contract Law 268.

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In New South Wales, a similar approach has been adopted in respect of contracts for the sale of goods by the Sale of Goods Act 1923 (NSW). Section 4(5) of the Act provides: “Nothing in this Act shall be construed as excluding a right to treat a contract of sale as repudiated for a sufficiently serious breach of a stipulation that is neither a condition nor a warranty but is an intermediate stipulation.”

Termination by frustration [11.310] After a contract has been made, some unforeseen event may occur which results in such a fundamentally different situation from that contemplated by the parties at the time of entering into the contract that the law regards them as being discharged from any further obligation under the contract. In such a case the contract is said to have been “frustrated”. For the unforeseen event to have this effect, it must have been of such a serious nature as to make further performance of the contract illegal, impossible, or radically different from that contemplated by the parties: Davis Contractors Ltd v Fareham UDC [1956] AC 696 at 729. Mere hardship, inconvenience, or material loss will not in themselves justify the application of the principle. The application of the principle or doctrine of frustration to particular cases has been by no means an easy matter as the following comment in the High Court demonstrates: “… the various expositions of the true basis of the doctrine of frustration leave imprecise its actual operation when applied to the facts of particular cases. How dramatic must be the impact of an allegedly frustrating event? To what degree or extent must such an event overturn expectations, or affect the foundation upon which the parties have contracted, or, again, how unjust and unreasonable a result must flow or how radically different from that originally undertaken must a contract become (to use the language of some of the various expositions), before it is to be regarded as frustrated? The cases provide little more than single instances of solutions to these questions. These difficulties of application of the doctrine of frustration … are, perhaps, inevitable in questions of degree arising when a broad principle must be applied to infinitely variable factual situations”: Brisbane City Council v Group Projects Pty Ltd (1979) 145 CLR 143 at 162-163 per Stephen J. Similarly, the Victorian Court of Appeal has pointed out the difficulty of applying such flexible principles: “One difficulty with general conceptions of that kind is that they do not provide much guidance as to the degree or extent an event must overturn expectations, or affect the foundation upon which the parties contracted, or how unjust and unreasonable a result must follow, or how radically different from that originally undertaken must a contract become, before the contract is taken to be frustrated”: oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 at [66] per Nettle JA, with whom Redlich and Weinberg JJA agreed.

Application of the doctrine [11.320] The following are examples of circumstances that have been held to frustrate a contract:

Supervening illegality [11.330] Where a subsequent change in the law renders further performance illegal the contract will be terminated: Ertel Bieber & Co v Rio Tinto Co Ltd [1918] AC 260 at 267, 276, 285.

Death or illness [11.340] Where the contract is one of personal service and the party to perform the service dies or suffers from some serious disability or illness making performance of the contract impossible the contract will be terminated: Robinson v Davison (1871) LR 6 Ex 269 at 274, 278.

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Destruction of subject matter [11.350] Where performance of the contract is rendered impossible by the physical destruction of the subject matter before performance falls due, the contract is terminated. A contract for the hire of a building for a concert at a future date was held to be terminated by the building being burnt down: Taylor v Caldwell (1863) 3 B & S 826; 122 ER 309 at 839–840 (B & S); 314–315 (ER).

Common objective no longer attainable [11.360] When the happening of some particular event can be regarded as the real basis of the contract, then if that event fails to eventuate without the fault of either party the parties are discharged.

case [11.370] For the coronation of Edward VII a flat on the route of the coronation procession was hired for two specified days. When the procession was postponed the lessee refused to complete. It was held that the contract was frustrated by the cancellation of the coronation: Krell v Henry [1903] 2 KB 740 at 750, 755. [11.380] Contrast with the latter case the following decision by the same court:

case [11.390] The HB Company agreed to hire a boat to H to view the naval review at the coronation and to cruise around the fleet. Owing to the King’s illness the naval review was cancelled but the fleet was assembled and the boat might have been used for the intended cruise. It was held that H was not discharged from performance as the naval review was not the sole basis of the contract: Herne Bay Steamboat Co v Hutton [1903] 2 KB 683 at 689, 691-692.

Governmental intervention [11.400] Where government interference is such that it would make the subsequent carrying out of the remainder of the contract radically different from that envisaged by the parties, then they are absolved from further performance:

case [11.410] D contracted with the Metropolitan Water Board to construct a dam within six years, subject to a proviso that if the contractors should be delayed or impeded in the completion of the contract it would be lawful for the engineer to grant an extension of time. The Ministry of Munitions, exercising wartime powers, appropriated the machinery of the company and work on the dam ceased. It was held that the interruption suffered was of such duration and character as to alter the contract on resumption, and therefore the contract had ceased to be operative: Metropolitan Water Board v Dick, Kerr & Co Ltd [1918] AC 119 at 130, 135, 139.

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Other supervening circumstances resulting in radical difference in performance [11.420] The basis of the doctrine of frustration is that performance of the contract has become radically different from that undertaken by the contract. This can be illustrated by Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337:

case [11.430] Codelfa contracted to excavate tunnels and do concrete work in connection with a railway. Various stages of the work were to be completed by certain dates. The whole of the work was to be completed within 130 weeks of the date of notice to proceed. Time was made of the essence of the contract. The work generated considerable noise and vibration. A resident obtained an injunction to restrain Codelfa from performing construction work between 10 pm and 6 am. Codelfa contended that the changed working conditions necessitated by the injunction resulted in frustration of the contract: at 395-396. The dispute was referred to arbitration under the terms of the contract. The arbitrator found that the work could not be carried out as agreed except on the basis of three shifts per day, and that “neither party … foresaw the possibility of restrictions being imposed on the hours of work” as a result of the injunction: at 397. A majority of the High Court held that the situation produced by the grant of the injunction was such as to make it impossible lawfully to perform the contract in a manner that would have complied with its requirements. Accordingly, performance had become a thing radically or fundamentally different from that undertaken by the contract resulting in frustration of the contract: Codelfa Construction Pty Ltd v State Rail Authority of New South Wales (1982) 149 CLR 337 at 345, 362-363, 376, 380.

Changes in circumstances not amounting to frustration [11.440] There have been many cases in which the courts have held that the change in circumstances did not give rise to frustration of the contract.

case [11.450] The appellants entered into a number of contracts with the respondents for the installation of neon advertising signs on the respondent’s hotels and the respondent agreed to hire the signs for a period, and to pay the rentals whether or not the signs were used or operated. The signs were conspicuous even when not illuminated. During the currency of the contract and after the signs had been operated for a substantial period, the use of lighted signs outside any building was prohibited by State order because of the outbreak of war with Japan: at 183-184. The High Court held that the making of the State order did not frustrate the contracts and that the respondent remained liable for the rental payments. In the court’s view, there was no ground for concluding that the lighting of the signs was the basis on which the parties had contracted: at 202, 216-217, 231. The court also rejected the contention that a term should be implied providing for the termination of the contract in the events which had happened: Scanlan’s New Neon Ltd v Tooheys Ltd (1943) 67 CLR 169 at 197-198, 230.

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[11.460] An interesting example of the occurrence of an event that in the particular circumstances was held not to frustrate the contract arose in consequence of the closing of the Suez Canal as a result of hostilities in 1956:

case [11.470] On 4 October 1956, the appellants agreed to sell to the respondents Sudanese groundnuts for shipment from Port Sudan to Hamburg during November-December 1956. On 2 November the Suez Canal was closed. The alternative route via the Cape of Good Hope would have increased the length of the voyage by four weeks and also increased the appellant’s costs of shipment: at 110. No delivery date in Hamburg and no particular route had been specified in the contract, while extra expense does not in itself justify a finding of frustration: at 115, 118, 128. It was held by the House of Lords that although the route via the Cape would have involved a change in the method of performance of the contract than that originally contemplated by the parties, it was not such a fundamental change as to entitle the appellant sellers to say that the contract was frustrated: Tsakiroglou & Co Ltd v Noblee Thorl GmbH [1962] AC 93 at 115, 119, 133.

case [11.471] A licence agreement allowed the licensee to maintain a large advertising billboard on the roof of an office building. The construction of another office building subsequently impaired the visibility of the billboard. The licensee’s advertising revenue was drastically reduced. The Victorian Court of Appeal held that the contract was not frustrated. It was foreseeable at the time the agreement was concluded that the visibility of the billboard was at risk of being reduced by construction of a building: at [80]. Since this risk was foreseeable it was difficult for the licensee to claim that the continuation of the same level of visibility of the sign was the common assumption of the parties when making their agreement: at [114]. The licensee could have insisted upon the inclusion of a clause providing for termination of the agreement in the event the visibility of the sign was reduced: oOh! Media Roadside Pty Ltd v Diamond Wheels Pty Ltd (2011) 32 VR 255 at [113].

Effect of frustration [11.480] When frustration of a contract occurs it automatically terminates the contract: Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd [1942] AC 154 at 163. Furthermore, the effect of frustration is to bring the whole contract to an end and not just some part of it: Aurel Forras Pty Ltd v Graham Karp Developments Pty Ltd [1975] VR 202 at 207. A frustrated contract is not void ab initio (that is, from the beginning) but is determined by the supervening impossibility. The future obligations of the parties are discharged, but rights and liabilities that have already accrued are not discharged: Renehan v Leeuwin Ocean Adventure Foundation Ltd (No 3) (2006) 17 NTLR 83 at [77]. The contract is brought to an end as a result of the frustrating event that has arisen since the formation of the contract. This rule that the contract is not void ab initio is subject to the exception that money paid under a contract where the consideration wholly fails may be recovered. In other words, where one party to the contract has paid money (such as a deposit) under a contract and, because of frustration, there is a total failure of consideration, the other party is under a duty to refund the money to the person paying it. This

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may cause hardship where a party to a contract has performed part of the work preparatory to performing their promise, as by manufacturing machinery in readiness for delivery, and tends to nullify the protection of obtaining a deposit. In Fibrosa Spolka Akcyjna v Fairbairn, Lawson, Combe, Barbour, Ltd [1943] AC 32 at 49 Viscount Simon LC in the House of Lords said: “[The law] cannot be regarded as dealing fairly between the parties in all cases, and must sometimes have the result of leaving the recipient who has to return the money at a grave disadvantage. He may have incurred expenses in connection with the partial carrying out of the contract, which are equivalent, or more than equivalent, to the money which he prudently stipulated should be prepaid but which he now has to return for reasons which are no fault of his. He may have to repay the money, though he has executed almost the whole of the contractual work, which will be left on his hands. These results follow from the fact that the English common law does not undertake to apportion a prepaid sum in such circumstances.” There is earlier Australian High Court authority to the effect that where a contract was frustrated, progress payments which had been made prior to the frustrating event were not recoverable even where the consideration for the payments had totally failed: Re Continental C & G Rubber Co Ltd (1919) 27 CLR 194 at 201, 204. However, it is probable that the High Court would now follow the contrary decision on this issue in Fibrosa Spolka Akcyjna v Fairbairn, Lawson, Combe, Barbour, Ltd [1943] AC 32 in preference to its own earlier decision.

Victoria [11.485] In Victoria the Australian Consumer Law and Fair Trading Act 2012 (Vic) provides that all sums paid to any person before the time of the discharge through frustration are recoverable: s 36(1). This extends the effect of Fibrosa Spolka Akcyjna v Fairbairn, Lawson, Combe, Barbour, Ltd [1943] AC 32 in that a complete failure of consideration is not necessary. However, if the payee incurred expenses for the purposes of the contract before the time of discharge, the court hearing the case may allow the payee to retain the whole or part of the money paid, up to the amount of the expenses incurred: s 37. If one party to the contract has by reason of anything done by the other party obtained a valuable benefit (other than a payment of money) before the time of discharge, the other party may recover such sum as the court considers just (up to the value of the benefit): s 38(1) – (2). The court may have regard to the amount of expenses incurred before discharge by the benefited party in performance of the contract and the effect, in relation to such benefit, of the circumstances giving rise to frustration of the contract: s 38(3). If the contract contains a provision that is intended to continue to have effect in the event of frustration of the contract the court must give effect to that provision. The court may give effect to the frustrated contracts provisions of the Act only to the extent that is consistent with the provisions of the contract: s 41. These provisions do not apply to a charter-party, any other contract for the carriage of goods by sea or a contract of insurance (subject to certain exceptions): ss 36(3), 40. On the other hand, these provisions apply to the situation where under the Goods Act 1958 (Vic) a contract for the sale of goods is avoided by the goods perishing before the property passes to the buyer: Australian Consumer Law and Fair Trading Act 2012 (Vic), s 35(1)(c).

New South Wales [11.490] In New South Wales the Frustrated Contracts Act 1978 (NSW) similarly adjusts the rights of the parties where a contract has been frustrated. In essence, the Act provides for: (a)

the repayment of moneys paid before frustration;

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(b)

payment for any benefit which a party has obtained from what another party has done under the contract; and

(c)

payment of one-half of the reasonable costs incurred by a party for the purpose of performing the contract.

However, where the court is satisfied that as regards the particular contract before it, the scheme of adjustment provided by the Act is manifestly inadequate or inappropriate, then the court may exclude the contract from the statutory scheme and substitute such adjustments in money or otherwise as it considers proper: s 15. The Act does not apply to contracts of insurance, contracts for the carriage of goods by sea, charter-parties and, perhaps most importantly, any other contract in which the parties have excluded the operation of the Act: s 6(1). The Act applies to the situation where under the Sale of Goods Act 1923 (NSW) a contract for the sale of goods is avoided by the goods perishing before the property passes to the buyer: Frustrated Contracts Act 1978 (NSW), s 5(1).

South Australia [11.500] In South Australia, the Frustrated Contracts Act 1988 (SA) provides that the frustration of a contract discharges the parties from all contractual obligations, with the exception of: (a)

an obligation that according to the proper construction of the contract is to survive frustration; or

(b)

a right of action for damages for breach of contract which arose before frustration, although in assessing damages the fact that the contract has been frustrated is to be taken into account: s 6.

On frustration there is to be an adjustment between the parties so that no party is unfairly advantaged or disadvantaged in consequence of the frustration: s 7(1). The formula for working out an adjustment between the parties is as follows: (a)

the value of contractual benefits received by each party up to the date of frustration are to be assessed and the values aggregated;

(b)

the value of the contractual performance of each party up to the date of frustration (including the costs incurred in carrying out, or preparatory to carrying out, contractual obligations) is to be calculated and the values aggregated; then

(c)

the aggregate amount under (b) is to be subtracted from the aggregate amount under (a), and the remainder notionally divided between the parties in equal shares: s 7(2).

Where the court considers that, in the circumstances of a particular case, there is a more equitable basis for making an adjustment between the parties then the court can make an adjustment on that basis rather than the one outlined above: s 7(4). In effecting an adjustment between the parties, the court is given wide powers to make orders for: the payment of money; the sale of property; the creation of a charge on property or the appointment of a receiver: s 7(5). Importantly, the Act is subject to any provision in the contract itself as to the consequences of frustration. The Act does not apply to a charter-party; a contract for the carriage of goods by sea; an insurance contract; a contract under which an association is constituted; or a partnership agreement: s 4(2). The Act applies (unless excluded by the contracting parties) to a case where under the Sale of Goods Act 1895 (SA) a contract for the sale of goods is avoided by the goods perishing before the risk is passed to the buyer: Frustrated Contracts Act 1988 (SA), s 3(2).

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Termination by operation of law [11.510] A contract may be terminated independently of the wishes of the parties by operation of law.

Bankruptcy [11.520] If a party liable under a contract becomes bankrupt they are personally relieved of the contract and the other party may prove in the bankrupt’s estate. There are also other provisions in the Bankruptcy Act 1966 (Cth) under which a trustee in bankruptcy may adopt or rescind certain contracts into which the bankrupt has entered. When the affairs of the bankrupt have been wound up, the bankrupt is given a certificate of discharge by the court, which releases the bankrupt from all debts provable in bankruptcy but the bankrupt is not released from liability in respect of certain types of debts, such as liability for fraud: see Chapter 31.

Merger [11.530] A deed may in certain cases displace a simple contract (which is then terminated) and the relations and rights of the parties are governed by the deed. When that happens the simple contract becomes merged in, and is extinguished by, the deed. The first agreement is terminated because the rights in the lesser contract merge by the operation of law into the greater. In order that merger of a simple contract in a deed may take place, the following conditions must be fulfilled: (a)

the parties to the two agreements must be the same;

(b)

the subject matter must be the same; and

(c)

the second security must be of a higher value than the first.

Another but different type of merger is that which takes place when a party recovers judgment upon a cause of action for breach of contract. Here the cause of action merges in the judgment.

Further reading See contract texts listed at the end of Chapter 2.

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Remedies [12.20] Remedies depend on the nature of the breach................................................................................ 198 [12.70] The remedy of damages .............................................................................................................................. 199 [12.290] Penalties and liquidated damages...................................................................................................... 205 [12.340] Specific performance.................................................................................................................................. 209 [12.400] Injunction .......................................................................................................................................................... 210 [12.410] Limitation of actions.................................................................................................................................... 210 [12.430] Restitution........................................................................................................................................................ 212 [12.440] The basis of restitution.............................................................................................................................. 212 [12.450] Circumstances where restitution applies ....................................................................................... 213

Introduction [12.10] This brings us to a discussion of the principles concerning the remedies available where the contract is not performed in the way agreed between the parties. This chapter is divided into two main parts. The first part is concerned with the remedies available to an innocent party where there has been a breach of contract. An award of damages, that is, monetary compensation, is the basic common law remedy for a breach of contract. In certain circumstances, the equitable remedies of specific performance and injunction may be available. The second part of this chapter discusses restitution. A remedy in restitution is imposed by law independently of contract. An action in restitution is usually brought either because there is no express contract between the parties or such contract is void or unenforceable. Accordingly, an action in restitution may provide a remedy where otherwise there would be none.

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Remedies depend on the nature of the breach [12.20] The remedies available to an innocent party on breach of the contract by the other party largely depend upon the nature of the breach. Accordingly, it is useful to outline the basic remedies available to an innocent party in the event of a breach of contract where: (a)

the contract is terminated for the breach; and

(b)

the contract is not terminated for the breach.

Termination of the contract must be distinguished from repudiation of the contract. The party in default may have repudiated the contract, whereas the innocent party may have the right to terminate for breach of the contract: Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 at [45].

Remedies where the contract is terminated for breach [12.30] If there has been a serious breach of contract such as a breach of a condition, that is, an essential term of the contract, the innocent party may elect to terminate the contract. In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115 the majority of the High Court accepted that a “sufficiently serious breach of a non-essential term” can also justify termination of the contract where that breach goes to the “root of the contract”: at [49], [53]-[54]: such a breach deprives the injured party of a substantial part of the benefit to which they are entitled under the contract: at [55].

case [12.40] In Koompahtoo Local Aboriginal Land Council v Sanpine Pty Ltd (2007) 233 CLR 115, the Land Council entered into a joint venture with Sanpine for the development and sale of land. The development did not eventuate. An administrator was appointed. Among other breaches, Sanpine had not kept adequate financial records and was unable to inform the administrator of the true financial position of the joint venture: at [68], [70]. The High Court held that while the individual terms breached would not justify termination for any breach, Sanpine’s breaches were gross and had serious consequences. The breaches went to the “root of the contract” and justified termination since they deprived the Land Council of a substantial part of the benefit to which it was entitled under the contract: at [71]. [12.50] If the innocent party does elect to terminate the contract for the breach then the contract comes to an end and the parties are released from further performance of their obligations under the contract: Richmond v Moore Stephens Adelaide Pty Ltd [2015] SASCFC 147 at [193]. In such a case, the innocent party can also sue for damages for the loss they have suffered in consequence of the breach.

Remedies where the contract is not terminated for breach [12.60] The breach may not be of such a serious nature as to entitle the innocent party to terminate the contract. This will be the case where there was only a breach of warranty. Alternatively, the breach may have entitled the innocent party to treat it as discharged but they have elected not to do so. In either situation the contract remains on foot and the parties remain liable to perform their obligations under the contract. In both these situations the innocent party is entitled to sue for damages for the breach of

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contract. In other words, at common law, any breach of an obligation under a contract by one party entitles the innocent party to seek monetary compensation by way of an award of damages for the loss they have suffered in consequence of the breach.

The remedy of damages [12.70] An award of damages, that is, monetary compensation, is the basic common law remedy for a breach of contract. The object of awarding damages for breach of contract is to compensate the innocent party for the loss resulting from such breach.

Principles applying to the assessment of damages [12.80] The common law has developed a number of basic principles concerning the assessment of damages. These are considered under the following headings: (a)

the general principle;

(b)

the damage must not be too remote; and

(c)

the duty to mitigate the loss.

The general principle [12.90] The general principle underlying an award of damages is that damages for breach of contract are awarded to place the innocent party, as far as money can do so, in the same position as they would be in if the contract had been performed: Robinson v Harman (1848) 1 Ex 850; 154 ER 363 at 855 (Ex), 365 (ER); Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [13]. The decision of the High Court in Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 established the following propositions: 1.

In most cases, the plaintiff is compensated for the loss of the benefits (usually the loss of profit) that it expected to receive in exchange for its own promise (described as “expectation damages”). The onus of proving such loss is on the plaintiff: at 80.

2.

Where it is not possible for a plaintiff to demonstrate whether, or to what extent, the performance of the contract would have resulted in a profit, the plaintiff can seek to recover the expenses (that is, the “wasted expenditure”) he or she reasonably incurred in reliance on the defendant’s promise to perform its obligations under the contract (such damages are referred to as “reliance damages” or “damages for wasted expenditure”): at 81, 104, 126-127, 154. 1

3.

If a plaintiff’s expenditure would not have been fully recovered if the contract had been performed, the plaintiff is entitled to damages only for an amount equivalent to that which would have been earned if the contract had been performed: at 84. The onus of proving that the plaintiff’s expenditure would not have been recouped even if the contract had been performed lies on the defendant.

case [12.100] In Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64, the respondent entered into a contract with the Commonwealth to conduct aerial coastal surveillance for three years. To 1

See G Ng, “The Onus of Proof in a Claim for Reliance Damages for Breach of Contract” (2006) 22 Journal of Contract Law 139.

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enable it to perform the contract, the respondent spent a substantial amount in acquiring specially equipped aircraft. The Commonwealth purported to terminate the contract but the notice it served was invalid. This amounted to a repudiation of the contract entitling the respondent to elect to terminate the contract and sue for damages. The High Court held that the respondent was entitled to recover the amount it had expended in preparing to perform the contract (that is, the respondent’s wasted expenditure was recoverable as “reliance damages”). It was not possible in the circumstances of the case to determine whether, or to what extent, the performance of the contract would have resulted in a profit for the respondent. This was particularly so in that performance of the contract would have put the respondent in a favourable position to obtain a renewal of the contract for coastal surveillance for a further term: at 94, 144-145.

case [12.110] A tenant of an office building carried out substantial renovations to the foyer without the consent of the landlord as required under the lease. The High Court held that the landlord had a contractual right to the preservation of the leased building against alterations to which it had not given its consent. The measure of damages was the cost of restoring the foyer to the state it would have been in had the tenant not breached its contractual obligation: Tabcorp Holdings Ltd v Bowen Investments Pty Ltd (2009) 236 CLR 272 at [15], [20].

case [12.111] When business assets were sold a substantial proportion of the assets did not comply with the contract. The purchaser had to buy suitable assets from an alternative source. The High Court held that the measure of damages was the value of what the purchaser would have received if the contract had been performed: at [10], [25], [106]. In this case that was the “loss to the purchaser of the value of the stock”, which was to be assessed as at the date of the breach: at [13], [24], [75], [109]. It was irrelevant that the damages were thereby higher than the contract price: Clark v Macourt (2013) 253 CLR 1 at [13], [135]. 2

The damage must not be too remote [12.120] The consequences flowing from a breach of contract might be completely unexpected and unforeseen. In such circumstances, the common law considered that it would be neither just nor practicable for the party in breach to be liable for every conceivable loss that might arise in consequence of their breach of contract. Accordingly, the principle was developed that the damages recoverable are limited to those that are not too remote. That is to say, the loss suffered, to be compensable by an award of damages, must have been within the reasonable contemplation of the parties as likely to result from the breach of contract. The party who is in breach of contract is liable in damages to the other contracting party for: (a)

2

loss arising naturally from the breach, that is, loss occurring in the usual or normal course of things from the breach of contract; or See JW Carter, “Issues of Principle in Assessing Contract Damages” (2014) 31 Journal of Contract Law 171; JW Farinha, “Damages for Breach of Contract: Clark v Macourt” (2014) 28(2) Commercial Law Quarterly 47.

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(b)

loss which is actually contemplated as a probable result of the breach, that is, loss occurring as a result of special or exceptional circumstances where such were made known to the party in breach so that they could have reasonably contemplated the likelihood of exceptional loss if the contract was broken: Hadley v Baxendale (1854) 9 Exch 341; 156 ER 145 at 354 (Exch), 151 (ER). 3

The effect of these rules on the question of the remoteness of damage was explained by the House of Lords in Koufos v Czarnikow Ltd [1969] 1 AC 350. In that case it was held that damage in the reasonable contemplation of the parties must be “a serious possibility”, “a real danger”, “liable to result” or “not unlikely” to occur: at 388, 406, 410, 414-415, 425. In particular, Lord Reid said that: “The crucial question is whether, on the information available to the defendant when the contract was made, he should, or the reasonable man in his position would, have realised that such loss was sufficiently likely to result from the breach of contract to make it proper to hold that the loss flowed naturally from the breach or that loss of that kind should have been within his contemplation”: at 385.

case [12.130] The plaintiffs ordered a bulk food storage hopper from the defendants for the purpose of storing pignuts for feeding their pig herd. When the defendants installed the hopper they failed to ensure that the ventilator at the top of the hopper was open. The result was that the pignuts became mouldy and caused the outbreak of an intestinal infection in the pigs and 254 of them died. The plaintiffs brought an action for substantial damages. It was held by the United Kingdom Court of Appeal that the plaintiffs were entitled to recover their loss. The court said that damages for breach of contract were recoverable in respect of injury or loss where the parties, at the time of the contract, would have “contemplated as a serious possibility the type of consequence, [though] not necessarily the specific consequence” that would ensue in the event of a breach of the contract: at 813. On the particular facts, it must have been within the contemplation of the parties that injury to the pigs was a serious possibility if, in breach of the contract, the hopper was unfit for storing nuts suitable to be fed to the plaintiffs’ pigs: H Parsons (Livestock) Ltd v Uttley Ingham & Co Ltd [1978] QB 791 at 805, 813.

case [12.140] The appellant flooring contractors were engaged by the respondents to resurface a parquetry floor in a house they were renovating. The appellants’ work was so defective that the floor had to be replaced. There had also been considerable delays in completion of the work. It was held that the respondents were entitled to damages for the cost of replacing the floor: at 210. However, the respondents’ claim for loss of rent was rejected since the appellants were never informed of the respondents’ intention to let the house; such loss was “not a loss in the ordinary course of things nor was it one which should have been reasonably contemplated by the appellants”: Day v O’Leary (1992) 57 SASR 206 at 212.

The duty to mitigate the loss [12.150] The law imposes a duty upon a person claiming damages to take all reasonable steps to mitigate, that is minimise, the loss caused by the breach of contract. A person who fails to mitigate their loss cannot 3

See A Tettenborn, “Hadley v Baxendale Foreseeability: a Principle Beyond Its Sell-by Date?” (2007) 23 Journal of Contract Law 120.

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recover any part of the loss that is attributable to their failure to do so. The question whether a person claiming damages has failed to take reasonable steps to mitigate their loss is one of fact dependent upon the particular circumstances. The burden of proving that there has been a failure to mitigate the loss rests upon the person from whom the damages are claimed.

case [12.160] For example, under a contract to deliver goods by instalments, payment to be made within one month of each delivery, less 2.5 per cent discount, the buyers failed to make a punctual payment of the first instalment. The seller wrongly treated this as sufficient to repudiate the contract but offered to continue deliveries at the contract price if the buyers would pay cash at the time of each order. This offer was rejected. The price of the goods having risen, the buyers sued for breach of contract: at 581-582. It was held that the seller was liable for damages since the failure to make a punctual payment in respect of the first instalment did not amount to a breach on the part of the buyers sufficient to entitle the seller to treat the contract as repudiated: at 584. On the other hand, it was held that the buyers should have mitigated their loss by accepting the seller’s offer, and that the damages recoverable were not to be measured by the difference between the contract and market price but by the loss that would have been suffered had the offer been accepted: Payzu Ltd v Saunders [1919] 2 KB 581 at 589. [12.170] A person suing for damages for breach of contract is only required to act reasonably in mitigating their loss and is not required to take undue steps, expose themselves to risk, or spend money which they cannot afford simply to reduce the amount of their loss. This is particularly so where the plaintiff’s financial difficulties were primarily the consequence of the defendant’s breach of contract: Burns v MAN Automotive (Aust) Pty Ltd (1986) 161 CLR 653 at 658-660 per Gibbs CJ.

case [12.180] A purchaser of land terminated the contract for breach of a contractual provision regarding time for completion. The vendor offered to complete the contract under judicial supervision. The New South Wales Court of Appeal held that the purchaser had failed to mitigate its loss by accepting the vendor’s offer: at [54]. An innocent party who was entitled to terminate may act unreasonably by not mitigating its loss by completing the contract: Castle Constructions Pty Ltd v Fekala Pty Ltd (2006) 65 NSWLR 648 at [79], [81], [83].

case [12.181] When business assets were sold a substantial proportion of the assets did not comply with the contract. The purchaser had to buy suitable assets from an alternative source. The buyer charged their customers for the cost of acquiring the assets from the alternative supplier. The High Court held that the purchase of the replacement assets left the buyer no better or worse off than before the replacement purchase: at [19], [37]. If the purchaser had been better off, that would have been a mitigation of their loss: Clark v Macourt (2013) 253 CLR 1 at [21].

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Difficulty of quantifying damages no bar to recovery [12.190] In certain circumstances it may be difficult to quantify or assess the loss in monetary terms resulting from the breach of contract, particularly where the loss is of a speculative nature. However, mere difficulty in estimating damages does not relieve a court from the responsibility of estimating them as best it can: Placer (Granny Smith) Pty Ltd v Thiess Contractors Pty Ltd (2003) 196 ALR 257 at [38]. In fact, it has been said that the “assessment of damages … does sometimes, of necessity involve what is guesswork rather than estimation”: Jones v Schiffmann (1971) 124 CLR 303 at 308 per Menzies J. It has been held that damages may be awarded for the loss of a chance or an opportunity to secure a benefit where there is a legal obligation to provide the chance or opportunity:

case [12.200] In Howe v Teefy (1927) 27 SR (NSW) 301, a racehorse was leased by the defendant to the plaintiff trainer for three years. Three months later, in breach of the contract, the defendant retook possession of the horse. The plaintiff brought an action claiming damages for the loss of profits he would have made from his own bets on the horse and supplying information for reward to other persons. The jury awarded the plaintiff £250 damages. The defendant appealed on the grounds that the prospective winnings of the plaintiff from bets and stable commissions were too remote to be recovered as damages, and that there was no evidence on which the jury could have assessed such winnings: at 303-404. The New South Wales Full Supreme Court dismissed the defendant’s appeal. In the court’s view, the plaintiff had been deprived of his right to make what profit he could from the use of the horse and that right was capable of assessment in monetary terms: at 307. Street CJ said: “[I]f a plaintiff has been deprived of something which has a monetary value, a jury is not relieved from assessing the loss merely because the calculation is a difficult one or because the circumstances do not admit of the damages being assessed with certainty”: at 306.

Damages not usually recoverable for disappointment or distress [12.210] The general rule is that damages are not recoverable for disappointment, distress, injured feelings or mere inconvenience arising from a breach of contract: Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 361, 368–369, 380–381, 394–395, 404–405.

case [12.220] The defendant retail merchant contracted with the plaintiff, a householder, to supply and install an oil heater in the plaintiff’s home. The defendant installed the heater and engaged an electrician to connect it. The electrician informed the plaintiff that a new power point was necessary and that it would cost an extra $5. The plaintiff refused to pay and so the electrician did not complete the wiring. Some months later, the plaintiff ran a temporary lead from a power point in the kitchen to provide electricity to the heater: at 448. The plaintiff sued the defendant claiming damages for the cost of the electrical installation and for the inconvenience he had suffered. It was held that the contract was an ordinary commercial contract for breach of which the plaintiff was not entitled to recover damages for inconvenience and mental distress. The measure of damages

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was limited to the cost involved in remedying the breach by the defendant to fully install the heater (by then, $11): Falko v James McEwan & Co Ltd [1977] VR 447 at 452-453. [12.230] An exception to the general rule is that damages are recoverable for distress or disappointment arising from breach of an express or implied term that the promisor will provide the promisee with pleasure, enjoyment or personal protection, or where the distress or disappointment is consequent upon the suffering of physical injury or physical inconvenience: Baltic Shipping Co v Dillon (1993) 176 CLR 344 at 363, 371-372, 381, 383, 405.

case [12.240] In Baltic Shipping Co v Dillon (1993) 176 CLR 344, the respondent paid $2,205 in advance for a 14-day cruise in the South Pacific. The object of the contract was to provide an enjoyable and relaxing holiday experience and there was an implied term to this effect. However, after eight days the ship struck a rock and sank. In an action against the appellant owners and operators of the vessel, the respondent was awarded $5,000 for disappointment and distress in addition to compensatory damages for loss of belongings and personal injuries including the trauma she suffered in the shipwreck. The High Court affirmed the $5,000 damages awarded for the respondent’s disappointment and distress: at 366, 383, 387, 406. The High Court further held that the respondent was not entitled to recover the whole of the cruise fare since there had not been a total failure of consideration, the respondent having enjoyed the benefits of the first eight days of the cruise: at 353, 367, 372, 378, 383, 386, 392. In the court’s opinion to award full restitution of the fare in addition to damages for breach of contract would have been to give the respondent excessive compensation: at 366, 379-380, 383, 406.

Damages and contributory negligence [12.250] Under the apportionment legislation of the various States, the damages awarded to a successful plaintiff suing in tort are reduced by the extent of any contributory negligence on the part of the plaintiff. However, in Astley v Austrust Ltd (1999) 197 CLR 1, the High Court held that the apportionment legislation of South Australia required apportionment for contributory negligence only in a tort action, not in an action for breach of contract. The Court held that the South Australian apportionment legislation was directed only to claims in tort, and not to claims in contract: at [89]. The apportionment legislation of the other States was in similar terms. Consequently, the case would have been of application throughout Australia. However, all jurisdictions subsequently amended their apportionment legislation to permit the apportionment of damages for breach of contractual duty of care in cases of contributory negligence. 4

4

See Law Reform (Miscellaneous Provisions) Act 1965 (NSW), s 9; Wrongs Act 1958 (Vic), s 26; Law Reform Act 1995 (Qld), s 10; Law Reform (Contributory Negligence and Apportionment of Liability) Act 2001 (SA); Law Reform (Contributory Negligence and Tortfeasors’ Contribution) Act 1947 (WA), ss 3A–4; Wrongs Act 1954 (Tas), s 4; Civil Law (Wrongs) Act 2002 (ACT), s 102; Law Reform (Miscellaneous Provisions) Act 1956 (NT), s 16.

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Ordinary, nominal and exemplary damages Ordinary damages [12.260] The damages we have so far considered in this chapter are variously referred to as ordinary, actual or compensatory damages, that is, the damages flowing from the breach of contract to compensate the innocent party for the actual loss suffered. These are by far the most important kind of damages. To be distinguished from such damages are two other kinds of damages, namely, nominal damages and exemplary damages.

Nominal damages [12.270] Where there has been an infringement of a legal right, for example a breach of contract, but the plaintiff is unable to establish that they have suffered any actual loss, only nominal damages will be awarded, that is a token sum of, say, $1: Luna Park (NSW) Ltd v Tramways Advertising Pty Ltd (1938) 61 CLR 286 at 301, 305, 312.

Exemplary damages [12.280] Exemplary damages are not only awarded as a means of compensation but to punish the party in default in view of the intentional or flagrant nature of the breach. They are only awarded in exceptional circumstances.

Penalties and liquidated damages [12.290] In the normal case damages are “unliquidated”, that is, no amount is mentioned in the contract, and the matter is left for the court to determine. If there is an amount fixed in the contract as to what should be paid in the event of a breach, then the damages are said to be “liquidated”. Where an amount is mentioned in the contract as the amount to be paid by a defaulting party on a breach of contract, it will be construed as liquidated damages if the amount is a genuine pre-estimate of damages for loss sustained through breach of the contract. Otherwise it will be construed as a penalty, that is to say a sum inserted merely in terrorem in order to deter the other party from a possible breach. A penalty is not directed to the consequences of a breach, but seeks to “coerce performance”: Fermiscan v James (2009) 261 ALR 408 at [145]. “If, as a matter of substance, the provisions of an agreement operate, in the case of breach or non-performance, to impose some additional or different financial obligation in the nature of a punishment (as distinct from a genuine pre-estimate of damage or withdrawal of a mere incentive), they will prima facie impose a penalty …”: Acron Pacific Ltd v Offshore Oil NL (1985) 157 CLR 514 at 520 per Deane J. If the amount stated is held to be a penalty, then only the actual loss sustained can be recovered. If the sum named is held to be liquidated damages, then that sum is recoverable, whether it exceeds or is less than the actual loss.

case [12.300] In the leading case of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79, manufacturers sold certain motor car tyres and other accessories to the defendants who agreed not to sell at a figure below certain listed prices. The defendants also agreed to pay £5 by

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way of liquidated damages for every breach of the agreement. They sold a tyre in breach of this clause: at 85. It was held that the sum was not a penalty and was recoverable as it was intended as a genuine pre-estimate of estimated loss: at 88, 97, 99, 105. [12.310] The significance of Dunlop Pneumatic Tyre Co Ltd v New Garage & Motor Co Ltd [1915] AC 79 lies in the guidelines set down by Lord Dunedin in determining whether the sum stipulated in the contract as being payable in the event of breach constitutes a penalty or liquidated damages. He said: (a)

It will be held to be a penalty if the sum stipulated for is extravagant and unconscionable in amount in comparison with the greatest loss that could conceivably be proved to have followed from the breach. …

(b)

It will be held to be a penalty if the breach consists only in not paying a sum of money, and the sum stipulated is a sum greater than the sum which ought to have been paid. …

(c)

There is a presumption (but no more) that it is a penalty when “a single lump sum is made payable by way of compensation, on the occurrence of one or more or all of several events, some of which may occasion serious and others but trifling damage”.

… On the other hand: (d)

It is no obstacle to the sum stipulated being a genuine pre-estimate of damage, that the consequences of the breach are such as to make precise pre-estimation almost an impossibility: at 87-88.

It is frequently difficult to determine whether an amount expressed in a contract to be payable on a breach is actually a penalty or liquidated damages. The issue arose for consideration before the High Court in O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 374-375, 383, 393, 404:

case [12.320] The appellant lessees entered into a leasing contract with the respondent company for a prime mover. The agreement provided for a lease of the vehicle “for a period of 36 months at an entire rental of $39,550.32”, which sum was stated to be due on the signing of the lease with the proviso that if the lessees duly performed all the conditions of the lease and punctually paid the instalments, the lessor would not enforce payment of the entire rent other than by the stipulated monthly instalments of $1,098.62. The lease contained a further clause to the effect that if the lessee defaulted in the punctual payment of any monthly rental instalment, the lessor could immediately retake possession of the vehicle and on such event “all moneys due for unexpired terms shall become immediately due and payable”. The lease further provided that on the goods coming into the lessor’s possession either at the end of the lease, or on the lessor’s repossession of the goods, the lessees were to be liable for the difference between the best price obtainable by the lessor for the goods and the appraisal value (that is, the estimated residual value of the goods) stated in the lease. There was no provision requiring the lessor to account to the lessees for any amount received on a resale of the goods even in the event that the price obtained on the resale exceeded the stated appraisal or residual value of the goods. The lessees duly paid the monthly rental under the lease for seven or eight months when they defaulted in payment. The lessor retook possession of the vehicle and sold it for $20,000, the appraisal value stated in the schedule to the agreement being only $13,300. The lessor then brought

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an action against the lessees claiming, inter alia, the difference between the total rent payable under the agreement, that is, the total rent payable for 36 months less the amount of the instalments paid – the sum claimed under this head being $31,436.04. No provision was made in the agreement for a rebate or discount on the balance of the instalments by reason of their having become immediately payable: at 364-366. It was held by the High Court that the amount sought to be recovered by the lessor under the terms of the lease constituted a penalty and not a genuine pre-estimate of damage, and hence the terms of the lease providing for the recovery of such sum was unenforceable. Gibbs CJ said: “The [lessor] became entitled under the contract to receive the accelerated payments of the rental without any rebate and to receive back the vehicle sooner than would otherwise have been the case without giving credit for its value, and, in these circumstances, the amount receivable by the (lessor) was manifestly excessive in comparison with the greatest loss that it could possibly suffer as a result of the default in payment of the instalments. … I have no doubt in principle that the provisions requiring the payment of the entire rent amount to a penalty”: at 369. Accordingly, the lessor was only entitled to recover the arrears of rental up to the time of repossession, certain other incidental costs, and damages for the actual loss they could establish resulting from the lessees’ breach of contract: O’Dea v Allstates Leasing System (WA) Pty Ltd (1983) 152 CLR 359 at 374-375, 383, 393, 404. [12.330] In Ringrow Pty Ltd v BP Australia (2005) 224 CLR 656, the High Court held that mere disproportion to the likely damage was not sufficient to render a clause a penalty. The Court unanimously stated that, to be a penalty, the amount “must be judged ‘extravagant and unconscionable in amount’. It is not enough that it should be lacking in proportion. It must be ‘out of all proportion’”: at [32]. In Andrews v Australia and New Zealand Banking Group Ltd (2012) 247 CLR 205 the appellants challenged various bank “exception fees” as penalties. The Federal Court held that most of these fees did not operate as a consequence of a breach of contract by the customer: at [21]-[22]. The High Court held that the application of the law of penalties was not restricted to situations where there had been a breach of contract or where a party was obliged to avoid the occurrence of a certain event: at [45], [84]. The Court also held that the law of penalties was not solely a common law rule as it derives from equity: at [51], [63]. The case was returned to the Federal Court to determine whether the fees at issue were penalties: at [83]. 5

case [12.331] A bank charged a substantial fee for late payment of the minimum monthly amount required under a customer’s credit card: at [1]. The High Court held that this late payment fee was not a penalty. The bank had three legitimate interests that were protected by the late payment fee. The first interest was the operational costs of seeking payment by customers: at [59]. The second interest was provisioning costs, since the risk of default by customers increased with late payment: at [63],

5

See A Gray, “Contractual Penalties in Australian Law After Andrews: An Opportunity Missed” (2013) 18 Deakin Law Review 1; R Manly, “Breach No Longer Necessary: The High Court’s Reconsideration of the Penalty Doctrine” (2013) 41 Australian Business Law Review 314; S Harder, “The Relevance of Breach to the Applicability of the Rule Against Penalties” (2013) 30 Journal of Contract Law 52; P Easton, “Penalties Percolating Through the Construction Industry: Andrews v Australia and New Zealand Banking Group Ltd” (2013) 29 Building and Construction Law Journal 233.

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[99]. The third interest was increased regulatory capital costs, since an increase in the risk of default by customers increased the amount of regulatory capital that the bank was required to maintain: at [58], [100]. Kiefel J held that the interests that may be protected by a contractually required sum payable upon breach were not restricted to the amount that would be recoverable in an action for breach of contract: at [26], [41]. These interests “may be of a business or financial nature”: at [29]. The customer had called evidence in relation to the bank’s operational costs, but not in relation to the other interests protected by the fee. It had thus not been shown that the fee was a penalty: at [68]. French CJ agreed with Kiefel J: at [2]. Gageler J also held that the interests that may be protected were not limited to the amount that would be recoverable for breach of contract: at [161]-[162]. One factor that suggested that the fee could be a penalty was the fact that the amount payable was the same irrespective of the amount overdue and for how long it was overdue. However, other factors outweighed that consideration. The minimum amount was payable monthly and was a small percentage of the full debt. The customer controlled the transactions made using the card and was able to cancel the card: at [168]. The bank’s provisioning costs and regulatory capital costs arising from a breach would not have been recoverable in an action for breach of contract: at [171]. However, both of those costs were commercial interests of the bank: at [172]. When those interests were taken into account, the late payment fee was not “grossly disproportionate” to the bank’s costs arising from a breach: at [173]. Keane J also held that the bank’s legitimate interests were not limited to its operational costs in seeking payment of the overdue amount: at [216]. A genuine pre-estimate of damage could include losses that would not be recoverable in an action for breach of contract. Recovery of such losses did not have a punitive purpose: Paciocco v Australia and New Zealand Banking Group Ltd (2016) 90 ALJR 835 at [283].

Forfeiture of deposits [12.332] A contract may provide for the payment of a deposit as “an earnest of performance which, on default, may be retained and credited against the damage suffered”: NLS Pty Ltd v Hughes (1966) 120 CLR 583 at 589 per Barwick CJ.

case [12.333] A property owner entered into a contract with a fencing manufacturer to install a fence and gates. The contract price was $47,300 with a deposit of $17,300. At the time they entered into the contract the parties had not discussed the details of the gates. The manufacturer was unable to manufacture gates of the width sought by the property owner, but was able to manufacture and install the fence. The property owner told the fencing manufacturer that its services were no longer required as he had contracted with a different company to manufacture and install the fence and gates. The fencing manufacturer did not refund the deposit: at [5]–[7]. The Victorian Supreme Court held that the deposit had been forfeited by the property owner’s unilateral repudiation of the contract and the retention of the deposit by the manufacturer was not unconscionable: Fiorelli Properties Pty Ltd v Professional Fencemakers Pty Ltd (2011) 34 VR 257 at [69].

chapter 12 Remedies

Specific performance [12.340] A decree of specific performance is an order of the court requiring a party to perform the obligations under the contract. It is a remedy directed towards enforcing the carrying out of the contract as originally agreed to by the parties. Specific performance is an equitable remedy and is entirely within the discretion of the court. An application for a decree of specific performance will only be granted in circumstances where damages do not provide an adequate remedy for breach of contract. It is mainly granted with respect to contracts for the sale of land 6 and also in contracts where the goods are unique, for example, rare works of art. Specific performance will not be granted in the following cases:

(a) Where damages are an adequate remedy [12.350] It is for this reason that specific performance of a contract for the sale of goods will not normally be ordered. An award of damages is usually a sufficient remedy to compensate for the breach of contract, for example the buyer can go out into the market and buy equivalent goods. However, in exceptional circumstances, for example where the contract is for the sale of rare or unique items that cannot be readily purchased elsewhere, specific performance of the contract may be granted.

(b) Where the contract is for personal services [12.360] Specific performance will not be ordered to enforce a contract for personal services.

(c) Where the contract would require constant supervision by the court [12.370] Specific performance will not be ordered where constant supervision by the court would be necessary to ensure compliance with the order: JC Williamson Ltd v Lukey and Mulholland (1931) 45 CLR 282 at 297-298 per Dixon J.

case [12.380] The lessor of a block of flats agreed to provide a porter who was to be “constantly in attendance” and perform specified duties. The porter appointed by the lessor was also employed as a chef in a nearby club and during his absence for several hours each day, his duties were performed by other persons. One of the tenants sought an order for specific performance of the obligation: at 118. It was held that specific performance could not be ordered since the court could not guarantee by its order that the porter would remain in constant attendance without constantly supervising such attendance: Ryan v Mutual Tontine Westminster Chambers Assoc [1893] 1 Ch 116 at 123, 125, 128.

(d) Where the order is not mutually available [12.390] Specific performance will not generally be granted unless it is available to both parties: Boyd v Ryan (1947) 48 SR (NSW) 163 at 165.

6

See K Yin, “Specific Performance in Favour of a Purchaser under a Contract for the Transfer of Land — An Analysis of the Present Australian Position” (2015) 41 Australian Bar Review 79.

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Where the circumstances do not fall within one of the exceptions discussed at [12.350]–[12.390], specific performance may be ordered. However, since it is an equitable remedy, the court has discretion whether or not to grant an application for the remedy. Accordingly, specific performance will be refused if its effect would be to cause unfairness or undue hardship to the defendant. Such circumstances include where there has been a mistake on the part of the defendant; undue delay in seeking the remedy; or breach by the plaintiff of her or his contractual obligations in circumstances where the grant of specific performance would be unjust to the defendant. A threatened refusal to perform a contract is sufficient to entitle the other party to apply for an order for specific performance: Turner v Bladin (1951) 82 CLR 463 at 472.

Injunction [12.400] An injunction is an order of a court restraining a person from doing a wrongful act. In the present context, an injunction is an order restraining (prohibiting) a party from breaching their contractual obligations. It is usually granted to prevent a party from doing something that he or she has promised not to do. An injunction will not be granted where its effect would be to compel a person to do something that he or she would not have been ordered to do by a decree of specific performance. An injunction will not be granted where its effect would be to require a contract for personal services to be specifically performed: Page One Records Ltd v Britton [1968] 1 WLR 157 at 167. On the other hand, if the injunction sought would not necessarily have the effect of forcing the defendant to perform their contract for personal services, then an injunction may be granted: Warner Bros Pictures Inc v Nelson [1937] 1 KB 209 at 219-220; Warner Bros Pictures Inc v Ingolia [1965] NSWR 988 at 992. Like a decree of specific performance, an injunction is a discretionary remedy and accordingly is likely to be refused where, for example, the plaintiff has been guilty of delay or is in breach of their obligations under the contract. Furthermore, again like a contract of specific performance, an injunction will not usually be granted if in the particular circumstances, damages would be an adequate remedy.

Limitation of actions [12.410] Certain Acts, generally referred to as the “Statutes of Limitations”, limit the periods during which legal proceedings may be taken to enforce a right under a contract. 7 The statutes do not in general affect the rights of the parties under the contract but merely their remedies, that is, the statutes prevent parties suing on such contracts after the expiration of a certain time. 7

Limitation Act 1969 (NSW): simple contracts (6 years), s 14(1)(a); torts (6 years), s 14(1)(b); specialties (12 years), s 16; recovery of land by persons other than Crown (12 years), s 27(2); recovery of land by Crown (30 years), s 27(1). Limitation of Actions Act 1958 (Vic): simple contracts (6 years), s 5(1)(a); specialties (15 years), s 5(3); recovery of land (15 years), s 8. Limitation of Actions Act 1974 (Qld): simple contracts (6 years), s 10(1)(a); specialties (12 years), s 10(3); recovery of land (12 years), s 13. Limitation of Actions Act 1936 (SA): simple contracts (6 years), s 35(a); specialties (15 years), s 34; recovery of land (15 years), s 4. Limitation Act 2005 (WA): simple contracts (6 years), s 13; deeds (12 years), s 18; recovery of land (12 years), s 19. Limitation Act 1974 (Tas): simple contracts (6 years), s 4(1)(a); specialties (12 years), s 4(3); recovery of land by persons other than Crown (12 years), s 10(2); recovery of land by Crown (30 years), s 10(1). Limitation Act 1985 (ACT): simple contracts (6 years), s 11(1); deeds (12 years), s 13; mortgages (12 years), ss 23 – 24. Limitation Act 1981 (NT): simple contracts (3 years), s 12(1)(a); deeds (12 years), s 14(1); mortgages (12 years), ss 26 – 27.

chapter 12 Remedies

The object of these statutes is to prevent the possibility of litigation continuing indefinitely. If such a statute were not in operation, a person might find it necessary to defend an action a considerable number of years after an alleged breach of contract, when perhaps they would be unable to secure evidence and witnesses might be dead. Briefly, the effect of the Statutes of Limitations is to prevent an action being brought: (a)

(b)

in the case of specialty contracts (contracts under seal), after the expiration of: (i)

12 years (New South Wales, Queensland, Tasmania, Western Australia, Australian Capital Territory and Northern Territory);

(ii)

15 years (Victoria and South Australia) from the date upon which the cause of action arose;

in the case of simple contracts, after six years from the cause of action arising (three years in the Northern Territory).

On the expiration of the period prescribed, the right of taking proceedings is barred although the actual debt itself may still exist. For example, where a simple debt has been ignored for six years, the creditor would not be able to recover the amount by legal action, although if the creditor held goods or other property as security for the debt the statute does not affect in any way their right of lien on these. Nor, if the situation arose that the creditor came to owe money to the debtor, would it prevent the creditor deducting from the amount of such money the statute-barred debt. 8 The time limitation begins to run from the date when an action can be first instituted, for example, where goods have been delivered on the condition that they are to be paid for on the expiration of 60 days from date of invoice, the right of action does not arise until the expiration of the period of credit. The commencement of the operation of the Statutes of Limitations is suspended where certain disabilities attach to the parties (for example, minority or insanity) at the time when the cause of action arises. In these circumstances the period runs from the time when the disability ceases. An important point to note is that, except in New South Wales, if the period once begins to run, it cannot be stopped or affected by any subsequent disability. 9 In cases where fraud has been perpetrated, the period runs from the discovery of the fraud or from the time when, with the exercise of reasonable diligence, it might have been discovered.

Acknowledgment of statute-barred debts [12.420] The right of action on a contract may be revived either by acknowledgment or part payment. 10 8

It is doubtful whether in New South Wales a statute-barred debt may now be revived by an acknowledgment or part payment. Section 54 of the Limitation Act 1969 (NSW) which deals with acknowledgments or “confirmations” applies only after the limitation period has commenced to run but before it has expired. Section 63 provides that upon the expiration of the limitation period the right title and interest of the person who formerly had the cause of action is extinguished. Notwithstanding the provisions of s 63, s 68 preserves the debt where the creditor has a possessory lien, but only in such cases.

9

In New South Wales, the Limitation Act 1969 (NSW) provides that if, after the limitation period has commenced to run, the person having the cause of action suffers a disability as defined in s 11(3) the running of the limitation period is suspended for the duration of the disability: s 52. It is doubtful whether in New South Wales a statute-barred debt may now be revived by an acknowledgment or part payment. Section 54 of the Limitation Act 1969 (NSW) which deals with acknowledgments or “confirmations” applies only after the limitation period has commenced to run but before it has expired. Section 63 provides that upon the expiration of the limitation period the right title and interest of the person who formerly had the cause of action is extinguished. Notwithstanding the provisions of s 63, s 68 preserves the debt where the creditor has a possessory lien, but only in such cases.

10

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Provided sufficient acknowledgment or part payment is received after the expiration of the statutory period the right of action will be revived for a further period. Should the acknowledgment or part payment be made before the expiration of the statutory period the time begins to run again from the date of that event. 11 In order to constitute a valid acknowledgment of a simple contract, 12 there must exist in the written notice of the debtor an express or implied promise to pay and in order to sue for the total amount owing there must be an unconditional promise to pay the whole amount. The kind of acknowledgment needed has been described as follows: “There must be one of these three things to take the case out of the statute. Either there must be an acknowledgment of the debt, from which a promise to pay is to be implied; or, secondly, there must be an unconditional promise to pay the debt; or, thirdly, there must be a conditional promise to pay the debt, and evidence that the condition has been performed”: Re The River Steamer Co, Mitchell’s Claim (1871) LR 6 Ch App 822 at 828 per Mellish LJ. Should the debtor, for example, write to their creditor stating, “You may as well be satisfied as you will not be paid another cent”, there is no revival of the debt as no promise to pay the balance can be implied. However, it has been held that a statement by the debtor of their inability to pay at the present time is sufficient to constitute a revival provided a promise to pay the balance can be inferred.

Restitution [12.430] The term restitution refers to the remedies provided by the law to compel the payment of money by A to B where it would be unjust to allow A to retain the benefit of money, goods or services which A has received at the expense of B. A remedy in restitution is imposed by law independently of contract. An action in restitution is usually brought either because there is no express contract between the parties or such contract is void or unenforceable. Accordingly, an action in restitution may provide a remedy where otherwise there would be none.

The basis of restitution [12.440] Some case law has regarded the remedy of restitution as based on unjust enrichment. That is, the defendant is ordered to restore money or other benefit (or its value) that they have received from the plaintiff because otherwise the defendant would be unjustly enriched at the plaintiff’s expense. The concept of unjust enrichment has been described as “a unifying legal concept which explains why the law recognises, in a variety of distinct categories of case, an obligation on the part of a defendant to make fair 11

12

In New South Wales s 54 of the Limitation Act 1969 (NSW) provides that where after a limitation period has commenced to run but before it has expired the person against whom the cause of action lies confirms the cause of action, the time prior to the date of confirmation shall not thereafter count in the reckoning of the limitation period in respect of the cause of action confirmed. It is doubtful whether in New South Wales a statute-barred debt may now be revived by an acknowledgment or part payment. Section 54 of the Limitation Act 1969 (NSW) which deals with acknowledgments or “confirmations” applies only after the limitation period has commenced to run but before it has expired. Section 63 provides that upon the expiration of the limitation period the right title and interest of the person who formerly had the cause of action is extinguished. Notwithstanding the provisions of s 63, s 68 preserves the debt where the creditor has a possessory lien, but only in such cases. However, acknowledgments or “confirmations” and payments are still of importance since if given or made before the expiration of a limitation period they, in effect, start a fresh period of limitation running. For the purpose of the New South Wales Act, a person “confirms” a cause of action if, but only if, he or she: (a) acknowledges in writing signed by her or him to the person having the cause of action, the right or title of the person having the cause of action; or (b) makes to the person having the cause of action a payment in respect of that cause of action.

chapter 12 Remedies

and just restitution for a benefit derived at the expense of a plaintiff”: Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 256-257 per Deane J. 13 However, the High Court has recently emphasised that unjust enrichment is not a “definitive legal principle” and is “not a principle supplying a sufficient premise for direct application in a particular case”: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at [73] per Hayne, Crennan, Kiefel, Bell and Keane JJ, see also at [139] per Gageler J. Restitution will usually be awarded only where: (a)

the defendant has received some form of benefit (that is, has been “enriched”);

(b)

that benefit or “enrichment” was at the plaintiff’s expense;

(c)

it would be “unjust” to permit the defendant to retain the benefit; and

(d)

there are no defences available to the defendant, for example change of position, estoppel, incapacity or illegality. It is a defence to restitution that the recipient of a mistaken payment has in good faith changed their position to their detriment in reliance upon the mistaken payment: Australian Financial Services and Leasing Pty Ltd v Hills Industries Ltd (2014) 253 CLR 560 at [27], [77], [84], [157]. For example, not taking legal action to enforce a debt and continuing to trade with the debtor may constitute such a change of position: at [28], [93], [166]. 14

Circumstances where restitution applies [12.450] There are two basic situations in which restitution may provide an appropriate remedy: (a)

where the plaintiff is claiming the return of money, for example because of a total failure of consideration, or where it was paid under a mistake; and

(b)

where the plaintiff is claiming a “reasonable remuneration” for work done or services provided and there is no enforceable contract between the parties.

Recovery of money paid [12.460] Restitution may provide a remedy for the recovery of money paid where: (a)

there is a total failure of consideration;

(b)

it is paid under a mistake of fact;

(c)

it is paid under a mistake of law; or

(d)

it is paid under compulsion or duress.

Money paid where there is a total failure of consideration [12.470] Where the plaintiff has paid money under a contract that has been discharged by reason of the defendant’s breach, the plaintiff can recover such moneys in an action for restitution provided that there has been a total failure of consideration, that is, where the plaintiff has received no benefit under the contract. The money is recoverable by the plaintiff in such a case because, otherwise, the defendant would be unjustly enriched: see Roxborough v Rothmans of Pall Mall Australia Ltd (2001) 208 CLR 516 at [20], 13

See generally R Andrew, “The Fabrication of Unjust Enrichment in Australian Law: Pavey & Matthews v Paul Reassessed” (2010) 26 Building and Construction Law Journal 314.

14

See E Bant and P Creighton, “The Australian Change of Position Defence” (2002) 30 University of Western Australia Law Review 208; A Duke, “The Knowing Receipt ‘Knowledge’ Requirement and Restitution’s ‘Good Faith’ Change of Position Defence: Two Sides of the Same Coin?” (2010) 35 University of Western Australia Law Review 49.

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[173], [199]. 15 Conversely, the provision of good consideration by the payee is a defence to a restitutionary claim: Adrenaline Pty Ltd v Bathurst Regional Council (2015) 322 ALR 180 at [79]-[83].

Money paid under a mistake of fact [12.480] Where money has been paid under a fundamental mistake of fact, the recipient is bound prima facie to repay the amount received. 16 However, an agent who receives money for their principal will have a good defence to an action if the agent either paid the money to the principal, or on the principal’s behalf, before learning that the money had been paid under a fundamental mistake. This was decided by the High Court in Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662:

case [12.490] ANZ made a telegraphic transfer of a sum of money on behalf of a customer to a Westpac customer. As a result of a clerical error, $100,000 more was transferred than should have been. ANZ informed Westpac of the mistake three days later. In the meantime, Westpac had paid cheques of its customer totalling some $83,000 out of the $100,000 overpayment. Westpac’s customer subsequently went into liquidation and ANZ sought to recover the overpayment from Westpac: at 668, 677. It was “common ground … that, if ANZ had demanded repayment of the $100,000 immediately after the transfer of funds had been received and before Westpac had … dealt with the money, Westpac would have been liable to repay the $100,000 to ANZ on the ground that it was money paid [under] a fundamental mistake”: at 671. However, on the particular facts, the High Court held that since Westpac had received the transfer from ANZ as an agent or intermediary for its customer, its liability to ANZ was limited to $17,000, the rest of the overpayment having already been paid out by Westpac on behalf of its customer before it received notice of the overpayment: Australia & New Zealand Banking Group Ltd v Westpac Banking Corp (1988) 164 CLR 662 at 674-675, 684.

case [12.500] An arbitrator ordered the Commonwealth government to pay the appellant lessee $215,000 in respect of the value of improvements made to certain land by the lessee and which was being resumed by the Commonwealth under the terms of the lease. The Commonwealth government paid the lessee the $215,000 awarded without deducting the sum of $75,000 which had previously been paid to the lessee as an advance against any sum found to be due to the lessee arising out of the arbitration. The High Court held that the full award of $215,000 had been paid under a mistake of fact and the Commonwealth was entitled to recover the $75,000 overpayment: McCormack v Commonwealth (1984) 155 CLR 273 at 275. 15

16

See generally J Tarrant, “Total Failure of Consideration” (2006) 33 University of Western Australia Law Review 132; TH Wu, “Unjust Enrichment within a Valid Contract: A Close Look at Roxborough v Rothmans of Pall Mall Australia Ltd” (2007) 23 Journal of Contract Law 201; K Raghavan, “Total Failure of Consideration as a Basis for Quantum Meruit Following a Repudiatory Breach of Contract” (2016) 42 Journal of Contract Law 179. For a criticism of this rule, T Camp, “Restitution on a Partial Failure of Basis” (2016) 28 Bond Law Review 21. See generally K Dharmananda, “Pleading Claims to Recover Money Paid by Mistake in Australia” (2008) 30 Australian Bar Review 337.

chapter 12 Remedies

Money paid under a mistake of law [12.510] The High Court has held that money paid under a mistake of law is prima facie recoverable: David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 at 376.

Money paid under duress or compulsion [12.520] A person who has paid money to another under duress or compulsion is entitled to recover the moneys so paid in an action for money had and received: J & S Holdings Pty Ltd v NRMA Insurance Ltd (1982) 41 ALR 539 at 555. Similarly, money paid under compulsion of a statutory provision that is later held to be constitutionally invalid is recoverable: Mason v New South Wales (1959) 102 CLR 108 at 117, 129–30, 133, 146.

Recovery of a “reasonable remuneration” [12.530] A plaintiff who does work for, supplies goods or provides services to, the defendant but for some reason has no contractual entitlement to payment may recover a “reasonable remuneration”. A claim for payment in such circumstances is generally referred to as an action on a quantum meruit. The expression quantum meruit literally means “for as much as he or she has earned”. The essence of a quantum meruit action is that the defendant has received some benefit from the plaintiff and that the defendant would be unjustly enriched if they were not required to pay a reasonable sum for the benefit accepted.

Recovery where the contract is unenforceable [12.540] Quantum meruit has proved to be a useful remedy where a person has provided work or services to another under a contract which is unenforceable, for example because of the absence of writing required by some statutory provision, and the party who has accepted the benefit sets this up by way of defence to a claim for payment. 17 The nature of an action on a quantum meruit in such circumstances was examined by the High Court in Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221:

case [12.550] In New South Wales the Builders Licensing Act 1971 (NSW), s 45(1) provided that a contract under which a licensed builder undertakes to carry out any building work is not enforceable against the other party to the contract unless it is in writing and signed by each of the parties. The appellant builder orally agreed to carry out certain renovations for the respondent. On the work being completed, the respondent refused to pay further moneys to the builder and when sued by the builder raised this statutory provision by way of defence: at 224-225. The High Court held that the builder could recover a reasonable sum for the work he had carried out by way of an action on a quantum meruit. The court said that such action was based on a claim to restitution or unjust enrichment arising from the purchaser’s acceptance of the benefit accruing to her from the builder’s performance of the unenforceable oral contract: Pavey & Matthews Pty Ltd v Paul (1987) 162 CLR 221 at 227, 262-263.

17

See R Andrew and S Kirton, “Quantum Meruit and Unjust Enrichment: Changing Jurisprudence in the High Court” (2008) 24 Building and Construction Law Journal 370.

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case [12.551] A family entered into a contract with a builder for the construction of a house. Unknown to the family, the work was mainly carried out by a sub-contractor. The family paid the contracted builder for the construction. The High Court held that the family was not liable to pay the sub-contractor on a quantum meruit as there had been no express or implied request by the family for the sub-contractor’s services. The request for the sub-contractor’s services came from the builder with whom the family had contracted: Lumbers v W Cook Builders Pty Ltd (in liq) (2008) 232 CLR 635 at [126]. 18

case [12.555] In Equuscorp Pty Ltd v Haxton (2012) 246 CLR 498 Rural Finance lent large sums to investors under unenforceable loan agreements. Rural Finance was controlled by the promoters of an investment scheme to which the loan agreements related. No prospectus had been issued for the investment scheme, in contravention of company law. The loan agreements were thus unenforceable as they were entered into in furtherance of an illegal purpose: at [27]. The right to sue under the loan agreements was later assigned to Equuscorp, which sought to recover the funds that had been lent. The High Court held that Equuscorp could not recover the loan moneys in an action for money had and received. French CJ, Crennan and Kiefel JJ held that the illegality that resulted in the unenforceability of the agreements deprived Rural Finance of the right to recover funds lent under the agreements: at [3]. The policy of the prospectus requirements was to protect the public by requiring promoters of investment scheme to disclose information that was relevant to the decision whether to invest: at [22]. Where benefits have been received under a contract that is unenforceable for illegality, the success of a restitutionary claim for those benefits will depend upon the “scope and purpose” of the statute that renders the agreement unenforceable. It is relevant that the statute seeks to protect the persons against whom the restitutionary claim is brought. It is also relevant whether the claimant is an innocent third party: at [34]. If Rural Finance had a right to recover the funds under restitution, that would enable it to recover what the policy of the law denied it in relation to the loan agreements. Rural Finance was controlled by the promoters of the scheme. The loan agreements were in furtherance of the illegal purpose of attracting investors without providing them with the benefit of a prospectus. The failure of consideration invoked by the assignee Equuscorp was the consequence of Rural Finance’s illegal conduct. Rural Finance did not have a right to recover the funds which could be assigned to Equuscorp: at [45]. In a separate judgment Gummow and Bell JJ held that the “scheme and purpose” of the statute was inconsistent with a right to recover for money had and received: at [99]. Here the statute did not

18

See M Bryan, “Lumbers v W Cook Builders Pty Ltd (in Liq): Restitution for Services and the Allocation of Contractual Risk” (2009) 33 Melbourne University Law Review 320; M Riley, “The Conceptual Relationship between Contract Law and Unjust Enrichment and the Decision in Lumbers v Cook” (2011) 28 Journal of Contract Law 267; A O’Brien, “The Relationship Between the Laws of Unjust Enrichment and Contract: Unpacking Lumbers v Cook” (2011) 32 Adelaide Law Review 83.

chapter 12 Remedies

expressly render illegal the agreement to repay the loan moneys. If the statute had been in those terms, it would have expressly precluded a restitutionary claim: at [100]. In this case the key issue was whether the policy of the statute precluded recovery: at [103]. The statute treated the prospectus requirement as serious enough to justify a five-year term of imprisonment for its breach: at [111]. To permit recovery in these circumstances would frustrate the policy of the statute. 19

Recovery where the contract is discharged [12.560] An action on a quantum meruit will also lie, as an alternative to an action for damages, where the plaintiff has done work under a contract which the other party has broken in such a way as to entitle the plaintiff to treat it as discharged. However, a plaintiff who only partially fulfilled their obligations under a contract, and did not complete performance owing to default on their part, will not usually be able to recover in an action on a quantum meruit for the work done: Sumpter v Hedges [1898] 1 QB 673 at 674-676. To be able to recover in such a case, the plaintiff would need to show not only that the defendant had received a benefit but also had undertaken a new obligation to pay by entering into a new contract on the basis of the part performance: Steele v Tardiani (1946) 72 CLR 386 at 394. Where work is carried out on a project by two parties on the assumption that a contract will be entered into but the project is later unilaterally abandoned by one of the parties, reasonable remuneration for the work carried out by the other party may be recoverable by way of an action on a quantum meruit depending on the particular circumstances: Sabemo Pty Ltd v North Sydney Municipal Council [1977] 2 NSWLR 880 at 902-903. Where there is a contract for the sale of goods or the supply of services but no precise sum is fixed, the person accepting the goods or services is bound to pay a reasonable price for them which obligation can be enforced by an action on a quantum meruit.

Further reading Contractual Remedies K Barnett and S Harder, Remedies in Australian Private Law (Cambridge University Press, Port Melbourne, 2014). W Covell, K Lupton and J Forder, Covell and Lupton’s Principles of Remedies (6th ed, LexisNexis, Sydney, 2015). DSK Ong, Ong on Specific Performance (Federation Press, Sydney, 2013). D Wright, Remedies (2nd ed, Federation Press, Sydney, 2014). Restitution K Barker and R Grantham, Unjust Enrichment (LexisNexis Butterworths, Sydney, 2008). 19

See M Borsky, “Contracts and Restitution: Restitution of Benefits Derived from Illegal Contracts as Money Had and Received: Equuscorp Pty Ltd v Haxton” (2012) 40 Australian Business Law Review 303.

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J Edelman and E Bant, Unjust Enrichment (2nd ed, Hart, Oxford, 2016). S Erbacher, Restitution Law (2nd ed, Cavendish, Sydney, 2002). J Glover, Equity, Restitution and Fraud (LexisNexis Butterworths, Sydney, 2004). K Mason, JW Carter and GJ Tolhurst, Mason and Carter's Restitution Law in Australia (3rd ed, LexisNexis Butterworths, Sydney, 2016).

Internet site Restitution and Unjust Enrichment Legal Resources http://www.ucc.ie/law/restitution

Journal Restitution Law Review

PART PT 3 COMMERCIAL TRANSACTIONS

Chapter 13 Chapter 14 Chapter 15 Chapter 16 Chapter 17 Chapter 18 Chapter 19 Chapter 20 Chapter 21 Chapter 22 Chapter 23 Chapter 24 Chapter 25

Agency Sale of Goods International Sales Contracts The Law of Electronic Commerce Consumer Protection Restrictive Trade Practices Credit Law Guarantees Bailments Property Negotiable Instruments I: Bills of Exchange Negotiable Instruments II: Cheques Insurance

chapter 13

Agency [13.20] Definition of agency........................................................................................................................................ 222 [13.90] Creation of agency .......................................................................................................................................... 223 [13.200] Nature and scope of an agent's authority....................................................................................... 226 [13.270] Duties of an agent........................................................................................................................................ 230 [13.390] Rights of agents ............................................................................................................................................ 233 [13.470] Liabilities of agents...................................................................................................................................... 236 [13.670] Termination of agency............................................................................................................................... 242 [13.790] Particular types of agents ....................................................................................................................... 244 [13.860] Statutory regulation of agents .............................................................................................................. 246

Introduction [13.10] Many business matters are conducted through the instrumentality of an agent. The relationship of agency generally arises as a result of agreement between the principal and the agent, and the rights and liabilities of each are based upon this original agreement. An agent is usually employed to bring about a contractual relationship between the principal and a third party. A principal will be bound by what the agent does on the principal's behalf provided that the agent acted within the scope of her or his authority. The general position is that where the agent acts within the scope of their authority and accordingly brings about a contractual relationship between the principal and a third party, such contract is between the principal and the third party. The agent is not a party to that contract.

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Definition of agency [13.20] Agency is the relationship existing between two parties whereby one (the agent) is authorised by the other (the principal) to do, on the principal’s behalf, certain acts which affect the principal’s rights and duties in relation to third parties. An agent, therefore, is a person who has authority (either express or implied) to act for a principal with the general object of bringing the principal into legal relations with a third party. However, in the business world the word “agency” is by no means so restricted and is often used in a much wider sense: International Harvester Co of Australia Pty Ltd v Carrigan’s Hazeldene Pastoral Co (1958) 100 CLR 644 at 652. In other words, the mere use of the word “agent” is not conclusive of the existence of an agency relationship in law.

Agency distinguished from other relationships [13.30] Agency overlaps with two other relationships which appear at first sight to be somewhat similar, namely, that of employer and employee and that between an independent contractor and the person with whom he or she contracts. Employees and independent contractors are mutually exclusive classes. The former comprises persons employed on such terms that they are subject to control regarding the manner in which their work is to be carried out. Independent contractors, on the other hand, exercise their own discretion as to the manner in which they carry out the work they undertake to perform. The difference may be further illustrated by distinguishing between a person employed under a contract of service (an employee) and a person engaged under a contract for services (an independent contractor). Some independent contractors are agents for those who employ them and some employees are general agents for their employers but it is not true to say that all employees or all independent contractors are agents for their employers. This is obvious in the case of the independent contractor but it is also true in relation to the employee. The essence of agency is that it should be within the scope of the employment that the person employed brings the employer into a legal relationship with a third party. In the case of some types of employee this will be readily implied, for example a shop assistant employed to sell goods is an agent. On the other hand a domestic servant is not generally an agent of the employer. An auctioneer (an independent contractor) retained to sell goods is an agent but not an employee. An agent should also be distinguished from a trustee. Both act in a similar manner, that is, on behalf of other persons. However, although a trustee exercises their powers on behalf of beneficiaries, a trustee is not the agent of the beneficiaries. Thus, a trustee does not bring the beneficiaries of the trust into a contractual relationship with third parties which is the normal function of an agent. In dealing with matters relating to the trust, the trustee is considered a principal not an agent.

Capacity to act as principal and agent [13.40] There is a marked distinction between a person’s capacity to act as a principal and their capacity to act as an agent. Generally speaking, only those persons with full contractual capacity may employ an agent, the rule being that anyone may appoint an agent to do any act which he or she has capacity to do themselves. Any person can be employed as an agent and can exercise any of the rights and powers conferred by the contract of agency even though they may not have the necessary contractual capacity to

chapter 13 Agency

bind themselves in similar negotiations. For example, although a minor is not able to bind herself or himself to certain contracts, a minor may be employed as an agent, and consequently may bind the principal to contracts he or she has entered into as agent. In respect of contracts to which a minor is able by law to bind herself or himself, it is permissible for the minor to appoint an agent for such purpose. A minor’s capacity to act through an agent is coextensive with the minor’s capacity to do the act which he or she purports to delegate. An agent cannot have greater powers conferred upon them than the principal possesses; and, if the principal is under some disability, the powers of the agent are equally limited according to the nature of such disability. Where the alleged principal is in fact incapable of giving authority to an agent to act on their behalf, an agent who represents that he or she has such authority is liable to the third party for breach of warranty of authority.

Classification of agents [13.50] A general classification of agents is as follows: (a)

special agents;

(b)

general agents; and

(c)

universal agents.

These classifications have no special legal significance apart from illustrating the varying authorities of the agents mentioned. The real problem is the actual extent of the agent’s authority.

Special agents [13.60] A special agent is one who is appointed for the performance of some special act, or to represent the principal in some particular transaction, such act or transaction not being in the ordinary course of the agent’s trade, profession, or business as an agent. For example, P appoints A his agent for the purpose of procuring a truck suitable for towing; the only authority given to A as agent, is that necessary to procure the type of truck mentioned.

General agents [13.70] A general agent is an agent who has authority: (a)

to act for the principal in all matters, or in all matters concerning a particular trade or business, or of a particular nature; or

(b)

to do some act in the ordinary course of their trade, profession or business as an agent on behalf of the principal, for example where a solicitor or broker is employed as such.

Universal agents [13.80] A universal agent is one whose authority is unlimited to do such things which the principal may do through the instrumentality of another. Such types of agents are rare in practice and, when they do exist, they are appointed by extensive powers of attorney. The only limits which are imposed upon the authority of a universal agent are those which the law imposes with regard to the legality of the objects and the capacity of the parties in relation to contracts in general.

Creation of agency [13.90] The relationship of principal and agent may be created in the following ways: (a)

expressly (that is, by agreement)

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(i)

by deed;

(ii)

by writing;

(iii)

by word of mouth;

(b)

holding out or estoppel;

(c)

ratification; or

(d)

operation of law (i)

agency of necessity;

(ii)

agency arising by cohabitation.

Expressly By deed [13.100] The appointment of an agent by deed (that is, instrument under seal) is necessary where the agent is required to execute any instrument under seal on behalf of their principal, in which case the document creating the power is termed a power of attorney. 1 A power of attorney is often given where a principal is going abroad and desires to leave another in char