remedies - full course notes
DESCRIPTION
Remedies law unit notes.TRANSCRIPT
CL DAMAGES IN CONTRACT Purpose: To place Pl in position (as far as money can do) as if contract had been performed (Robinson v Harman)
Onus is on P to prove there is a cause of action, causation and remoteness. Onus on D to prove Pl’s failure to mitigate unnecessary losses.
CAUSE OF ACTION:
1) [x] has a cause of action for breach of contract
Must prove actual loss for more than nominal damages (Erie County Natural Gas &Fuel Co case)
Rule: termination of the contract not usually required for P to claim damages (Luna Park v Tramways)
Exceptions:
Anticipatory breach: -‐damages only recoverable if contract is terminated (Mason v Sunbird Plaza)
Claims for expectation damages (loss of bargain damages) -‐damages only recoverable if contract is terminated
Ready and willing to perform:
To claim damages for the D’s breach, the P must be ready and willing to perform their side of the contract (Foran v Wight)
If the K has been terminated: where the P terminates the contract following an anticipatory breach, the plaintiff need only show that this intention (to perform contract) existed prior to termination (Foran v Wight)
CAUSATION:
P must show that the loss suffered was in fact caused by D’s breach of contract.
Single cause: “but for”: but for the defendant’s wrong would the P had suffered the loss or damage complained of? (Reg Glass v Rivers Locking System)
REG GLASS v RIVERS LOCKING SYSTEMS – • Contract to install security door • Breached it by installing incorrect door • Someone broke in
HELD: • Burglary would not have occurred if the breach had not occurred – (but for test)
Multiple causes: March v Stramare: test of “ordinary common sense and experience”
Contributory negligence: Negligence of Pl can break chain of causation
LEXMEAD (BASINGSTOKE) LTD V LEWIS – • P bought towing hitch to tow trailer • He saw that it was damaged but continued to use it HELD: • P was Contributory Negligent • His own neglect (using something broken) caused his losses • Severed the chain of causation à no claim
Apportionment? In Astley: HC held that he apportionment legislation did not allow for a reduction in damages in any contract case.
• Law reform act reversed it. o ‘wrong’ means an act or omission that:
§ Gives rise to a liability in tort for which a defence of contributory negligence is available at common law; or
§ Amounts to a breach of a contractual duty of care that is concurrent and coextensive with that duty of care in tort.
• Eg go to dentist to have teeth repaired • Eg. book into hotel: concurrent claim in K and tort – implied
term that won’t slip and hurt your back. o Apportionment – s 10 – CN can completely remove causation or be an
apportionment issue § (1) If a person (claimant) suffered damage partly because of the
claimant’s failure to take reasonable care (CN) and party because of the wrong of someone else:
• (a) a claim in relation to the damage is not defeated because of the claimant’s contributory negligence; and
o (still have a claim despite CN) • (b) the damages recoverable for the wrong are to be reduced to
the extent the court considers just and equitable having regard to the claimant’s share in the responsibility for the damage.
o (and damages will be reduced)
Novus actus interveniens:
Test: was the event reasonably foreseeable by def?
MONARCH STEAMSHIP V KARLSHAMNS OLIEFABRIKER – • Ship chartered to carry cargo from Venturia to Sweden • Ship not seaworthy. War ready to break out • Government ordered it to unload in Glasgow because of the way HELD: • No novus actus. They knew of the risk of war. It was ‘reasonably foreseeable’ ALEXANDER V CAMBRIDGE CREDIT CORP -‐ • Auditors failed to give proper advice on their financials. • If they had known, they would have put it into receivership • Sued auditors for breach of K • Auditors blamed government-‐ bad economic policies economic policies affected the company, not their failure to
perform their duty HELD: • Can’t say that the continued existence of the company caused the loss. • Actual effect of the economy after the breach of auditors was so big that it wiped away consequences of auditor’s
breach • To establish causal connection, P need only to show that it was one cause (common sense approach)
REMOTENESS
Test: Hadley v Baxendale: The loss/damage is not too remote if:
First limb
1) Damages arising naturally in usual course of things from breach of Contract itself • Direct loss • Presumed to be in the contemplation of the parties
Second limb
2) Was reasonably supposed to have been in contemplation of both parties at time of contract as the probably result of the breach of it
• Indirect loss • Innocent P to prove that D knew or ought to have known that
damage would be a probably result of breach o And in contemplation of both parties at the time of the
contract • Mere knowledge is insufficient – need an undertaking to bear the
unusual loss (As term of C or orally)
• Undertaking to bear the unusual loss may be implied (Robophone Finance Facilities v Blank)
• Factors: what was D’s actual knowledge; payment If D received something extra as part of the price for performance, it will be easier to draw the inference that the D has accepted the risk for unusual losses because the risk is reflected in the price. (premium for the risk)
HADLEY V BAXENDALE • P owned flour mill. Krank shaft in mill broke. Had to send it away to get replica manufactured. Gave it to a
courier company and they took it to be repaired • Courier company breached K à shaft arrived later than contracted • EFFECT: mill had to shut down for 5 days
HELD: • Courier not liable • Courier would not know that a failure to return would cause the loss in production that the plaintiff suffered • D liable for natural, ordinary loss • For others, you to need to show that at the time they agreed, the additional losses were in the contemplation of
the parties • NB: is special circumstances were communicated to P?
LIMB ONE: damages arising naturally in usual course of things from breach of contract itself LIMB TWO: was reasonably supposed to have been in contemplation of both parties at time of contract as a probable result of breach VICTORIA LAUNDRY V NEWMAN INDUSTRIES
• Washing and drycleaning establishment had K for supply of boiler • Boiler arrived 20 weeks late. Vic laundry didn’t want to accept it. • Vic had secured a contract from the government to dye sheets. They therefore lost out on this contract because
of the boiler. HELD:
• First limb: ordinary losses would have been not being able to wash and dry clothes • Second limb: not satisfied (they wouldn’t have contemplate that late delivery would cause them to miss out on
a contract.) CZARNIKOW V KOUFOS
• K was contracted to to ship sugar from Constanza to Basrah. Koufos arrived nine days late. • Sugar prices had fallen. • Czarnikow sued for loss of profits in the sale of the sugar.
HELD: • Loss was recoverable under the first limb of Hadley v Baxendale. • Although Koufos did not know that it was intended that the sugar be sold at Basrah, he did know that Czarnikow was
a sugar merchant and that there was a market for sugar in Basrah. This was enough knowledge for Koufos to have contemplated that Czarnikow would suffer the loss in question.
• Reasonably foreseeable that a delay or a different delivery date would have a lower price. JACKSON V RBOS
• Imported dog chews. Sold to second company who packaged them into different packages. • Both banked at RBOS. Payment was by a letter of credit • RBOS accidentally showed Jackson’s client one of their invoices • Jackson’s client terminated the contract • Claimed against bank for breach of contract à implied confidentiality and HELD
• RBOS negligently exposed info • Another issue: loss of chance of future profits
H PARSON (LIVESTOCK) V UTTERLEY INGHAM
• Farmed pigs. • Contracted with Uttley Ingham for machinery (hopper) to store pig nuts. • Hopper was negligently installed à didn’t leave hatch open. Pig nuts went mouldy. Pigs died. HELD • Falls under first limb. – natural result of feeding toxic food to animals is illness, and perhaps death • Future loss of profits were possibly under the second limb
PANALPINA INTL TRANSPORT V DENSIL UNDERWEAR
• D made it clear that it was important that ht goods arrive in Nigeria in time fort he Christmas trade, but there was no provision in the contract to that effect
• Transport underwear to Nigeria. Arrived late on the 21rd of Dec. • Most xmas trade had passed • Q: would they have known Densil would lose huge profits? HELD • Yes. Second limb. • There must be an undertaking to bear the unusual loss -‐ it need not be a term in the contract – an oral
undertaking may be sufficient. • Undertaking to bear the unusual loss may be implied (Robophone Finance Facilities v Blank)
o If D received something extra as part of the price for performance, it will be easier to draw the inference that the D has accepted the risk for unusual losses because the risk is reflected in the price.
MITIGATION
Damages can be reduced if :
• P failed to take reasonable steps to reduce loss OR • P did actually take reasonable steps, and the loss was actually reduced
NB:
• Attempted mitigation that increases loss is recoverable in damages (Simonious Vischer & Co v Holt & Thompson)
• Cost of mitigation is recoverable (irrespective of whether or not it was effective)
What is reasonable?
• Accepting an offer to help from D (alternative performance or another contract) (Payzu v Saunders)
• If D’s breach enables the P to obtain benefits not otherwise available, the P’s gain reduces the D’s liability (British Westinghouse Electric v Underground Electric Railways Co.) – credit for benefits
• P not required to accept a new offer of employment from the D if the new job is a at a lower status, even if at the same pay (Schindler v Northern Raincoat Co)
BRITISH WESTINGHOUSE ELECTRIC V UNDERGROUND ELECTRIC RAILWAYS CO • Made turbines in London underground. • Not powerful enough. Breach of K. • London underground threw them out and bought new ones which worked. • Buying new ones was reasonable mitigation. • But now they put themselves in a better position, so there was not an offset. Couldn’t claim future losses. Could
only claim for the period they used them. PRINCIPLE: • Aim is to put them back in the position they would be in had the breach not occurred. • Here, the new turbines put them in a better position. • P took reasonable steps (replacing the turbines) which reduced the actual loss – so the future loss that they
would have otherwise incurred (had they not replaced the turbines) was not recoverable. PAYZU V SAUNDERS
• Buyer had a credit contract with the seller. Could buy silk. Seller cut of their credit and would only sell on cash. • They 1) repudiated it 2) offered to allow them to pay cash
HELD • Reasonable mitigation to accept to buy on cash because then they could have got what materials they needed.
The only loss they were entitled to was the value of the credit facilities (nominal.) SCHINDLER V NORTHERN RAINCOAT CO
• Employer purported to terminate employment contract • Wasn’t entitled to. • Offered employee another position. Employee didn’t take it. • Kept contract on food (affirmed it.)
HELD • Employee had no duty to mitigate. Couldn’t say that he should have taken the other job.
WHITE & CARTER V MCGREGOR
• Contract with McGregor to put ads on wheely bins. • On day it was due to start, McGregor wanted out. White & Carter put the signs up anyway (affirmed it) and did
it for 3 years. • NB: you can affirm a contract once it has been repudiated if:
o You have a legitimate interest o You don’t need the cooperation of the other party
HELD • White & Carter had no duty to mitigate (ie to sell the space to someone else.)
CLEA SHIPPING CORP V BULK OIL INTL
• Ship was chartered (2 years). Ship had 2 months repairs. Party who rented it said they didn’t want it. Owners affirmed by fixing it and not renting it someone else
HELD • Unreasonable to affirm it because of the economic circumstances. • “there is a line between conduct that is merely unreasonable and wholly unreasonable.”
Anticipatory breach
• When prior to the date set by the contract for its performance, one of the Ps makes it clear that its obligations will not be performed.
• When there’s an anticipatory breach, innocent party can choose: o Affirm the contract: ignore the anticipatory breach and hold other party to the
contract § No duty to mitigate. Contract remains on foot until time for
performance actually arrives o Accept repudiation and terminat the contract
§ Duty to mitigate arises immediately § P can seek damages immediately (date for assessment will be date set
for performance.)
ASSESSMENT OF QUANTUM
To be assessed even if difficult to assess
Date of assessment:
• Assessment at date of breach, but flexible o Not followed if will cause injustice (Johnson v Perez)
• Once and for all rule applies – periodic payments cannot be given (Todorovic v Walker)
GOLDEN STRAIT CORP V NIPPON • K for charter of ship. Contract to run for 5 years. Had provision: if war broke out between
US and Iran, parties could terminate the Contract. • Chartered breached it: repudiated it. • Owner of ship accepted repudiation.
• Couple of weeks later: war broke out. • Went to arbitration. Court considered the provision.
HELD • P not entitled to the benefit of the rest of the K, only up to the war.
Not claimable: mental distress, hurt feelings, loss of reputation (Addis v Gramophone)
HEADS OF DAMAGE
Mental distress
Rule: no recovery in breach of contract
Except: the object of the contract is to provide enjoyment, relaxation, freedom from molestation
CASES:
BALTIC SHIPPING v DILLON Breach of K injured the P both physically and mentally
• Ship sank • Generally no claim for lost feelings/ disappointment
HELD • Mental distress flowed form what the K was actually for. The object of the K was enjoyment. • Didn’t allow full refund because she had 9 of the 14 days.
JARVIS v SWAN TOURS Skiing holiday
• Went on alpine skiing holiday • Description: amazing things • No house party etc
HELD • Generally no compensation for lack of enjoyment but that is exactly what they contracted for. • He got the bed etc but not the pleasure. à awarded damages. •
HEYWOOD V WELLERS P’s solicitor failed, in breach of their retainer, to obtain an injunction which would have restrained a man from molesting her
• Put junior solicitor on a job. Injunction not granted because of the way the solicitor’s firm dealt with it. Didn’t get the restraining order on someone who was molesting the victim.
HELD • Allowed return of all lawyers fees – she got no value. Proceedings useless.
RUXLEY ELECTRONICS AND CONSTRUCTION v FORSYTH Pool mean to be a of a certain design and depth
• Wanted a pool 7ft deep. • Pool only 6ft deep
HELD • Allowed a reduction. Compensated for the fact that you’ll enjoy it a little less.
FARLEY v SKINNER Loss of enjoyment – surveyor erroneously reprted that the land would not be affected by aircraft noise
• Paid $420,000 on property and $100k on improvements. Near airport. Surveyor checked property before he bought it. Surveyor didn’t say the airport would be too loud.
HELD • Awarded $10,000 for distress.
Expectation losses
Purpose: put in position Pl would have been had the contract been properly performed
• ‘loss of profits’ or ‘loss of the bargain’ • What profit would P have received if the contract had been properly performed?
• Even if no net profit would have been generated for the plaintiff, it can still recover damages for wasted expenditure or reliance damages.
• Generally only available once contract has been terminated (Sunbird Plaza v Maloney)
Reliance damages
P’s actual costs or wasted expenditure as a result of relying on the D’s contractual promise
• Reubttable Presumption: that the contract would not have been entered into unless the costs were recoverable. P need only prove that the expenditure was incurred and that it was reasonable. (Commonwealth v Amann)
• Onus then on D to show: the wasted expenditure would not have been recouped under the contract has it been performed.
o If P made a bad bargain (wouldn’t have recouped all losses even if the K was performed properly) then only entitled to damages for the amount that would have been earned if it had been properly performed. – principle – P is not entitled to be placed in a superior position due to the breach.
• Payments made under the contract – eg supplying team of workmen ready to work; costs and damages associated with employing a subcontractor
• CAN CLAIM BOTH reliance and expectation losses o No double recovery allowed
McRAE V CTH DISPOSAL COMMISSION • Mcrae had K with Cth to salvage wreck of ship. They money to Cth (making the wreck theirs.) There was no
wreck. HELD
• Reliance damages for loss incurred for money lost in reliance. • Too difficult to award expectation losses-‐ didn’t know how much the wreck would have been worth
o “impossible to value a non-‐existent thing” COMMONWEALTH V AMANN AVIATION – expectation losses
• Amann got tender. • Signed Amann to do surveillance along coast of Aus. They had to get train staff etc to do the work. Very
expensive. Cost 5.5-‐6 million to get started (planes etc.) There were nowhere near ready to start on the contracted date. Commonwealth terminated the contract, contrary to the contract: provision: to terminate the K, would first have to engage the other party to “show cause.”
• Amann sued Cth. • Amann did not get any income of out of this. They wanted to claim their losses. • In the first couple of years, they couldn’t make a profit. Would only make it if it was renewed. • PRESUMPTION in CORPS LAW: If P proves that they’ve incurred expenses, a presumption arises that they
would recover the costs in the contract. D bears the burden to prov that they would not make a profit. •
HELD
• Cth had not complied with terms of the K. • Court gave pure reliance damages • Couldn’t prove they’d make a profit à therefore no expectation losses.
Restitution damages
• Can get back what you have performed. • D had benefit in circumstances where it would be unjust to allow D to retain it at P’s
expense. o Solicitor’s fee returned for bad handling of the case (Heywood v Wellers) o Awarded an amount for wasted salvage rights (Mcrae v Cth)
Indemnity damages
• Purpose: to indemnify against loss. • Damages not part of the contract and not necessary for the performance of the contract
o AN EXAMPLE: new boat has been purchased and because of breach of contract, negligent mounting of engine, caused personal injury. Claims for personal injury possible as part of damages.
o CASE OF EXPLODING LIGHTBULB: § Damages awarded where defective light bulb result in death – breach of
an implied term. Couldn’t sue in tort – no negligence alleged or proven.
Loss of an opportunity or chance
• If treated as a causation issue then loss only recoverable if ‘on balance of probabilities’ a loss would have occurred (50%+) -‐ tort
• If treated as assessable head of damage (IN CONTRACT) then it is recoverable even though the calculation of the loss cannot be precise.
LOSS OF AN OPPORTUNITY OR CHANCE LUNA PARK V TRAMWAYS ADVERTISING
• Advertiser didn’t advertise as per contract HOWE V TEEFY
• Race horse leased to P for 3 years • Contract was breached when owner took horse back • Claimed for chance of winning, getting money from betting etc
HELD • Yes. Natural consequences of the breach. Not too remote.
JACKSON v RBOS (dog chew – bank mistake case)
• Losses for future renewals of the K HELD
• Over time, contract would have minimised and contract would have likely stopped. This reduced the damages paid for loss of chance.
BURGER KING V HUNGRY JACKS
• Contract since early 1970s that Hungry Jacks could sell franchises. • Disputes because Burger Kind terminate the contract.
HELD • Q: whether Hungry Jacks had suffered a loss by not being able to franchise • Yes. Potential loss of royalty income from franchise process.
Gratuitous benefits
• P not entitled to damages for loss of benefits which the D not obliged to provide (NSW Cancer Council v Sarfaty)
• Court will look at express and implied terms to determine what P has lost o Can include ‘tips’ (Mannhaus v Leon)
Damage to reputation
Traditional view in Addis – loss of reputation caused by a breach of K not available.
• Addis does not apply to all breaches of K. injured feelings, disappointment, loss of publicity and loss of goodwill have been compensated.
DAMAGE TO REPUTATION ADDIS – traditional view
• Wrongful dismissal case. • Claimed for injured feelings and the fact that it would make it more difficult for him to obtain fresh
employment. HELD
• Not awarded.
FLAMINGO PART V DOLLY DOLLY CREATIONS
• Fashion designer made designs for fabric • Contract with textile company stated: only to be used on good material and solely for her. • Dolly dolly took the designs and printed on other bad fabric for someone else • Affected reputation of the fashion house.
HELD • Injury to reputation was compensatable for breach of contract claim.
WHITE V AUSTRALIAN AND NEW ZEALAND THEATRES
• White: pantomime artists. • Theatre appointed new producer who wanted to call the shots. • This affected their reputation
HELD • Compensation allowed for damage to reputation
Interest
• P is entitled to payment when the cause of action arises • If payment is later, then interest for the period between the date on which te loss
acrrued and the date when the judgment takes effect • Purpose: to compensate for ‘being kept out of their money’ (MBP v Gocic) • Not on all heads of damage – not on those that represent loss after date of judgment
Exemplary damages
NOT AVAILABLE FOR BREACH OF CONTRACT
• Even where the K has been breached maliciously or intentionally. (Butler v Fairclough) • If there is concurrent claim in torts, courts can award exemplary damages.
o Eg Tort of deceit o Inducement of breach of contract o Interference with contract. (Zhu-‐ court awarded exemplary damages for
interference with contract)
TORTS
[1] Limitations of actions Personal injury: actions for negligence, trespass or nuisance (contract or tort) involving personal injury or death must be brought 3 years from the date on which the cause of action arose. Actions of contract and tort and certain other actions: actions for breach of contracts, or actions in tort which do not involve personal injury must be brought within 6 years from the date on which the cause of action arose.
(i) Time begins to run on the date of the injury or the day the damage arises.
Extension in cases of disability: if Pl suffered from a disability preventing the bringing of an action, the Pl may bring the action up to 6 years from the date on which the disability ended (or the person died) Ordinary actions: if a material fact (of a decisive character relating to the right of action) was not within the means of knowledge of the Pl until a date after the limitation period has ended, then the court may extend the limitation period by 1 year from that date. [1] Cause of action [x] has a cause of action in negligence for:
• Property damage • Personal injury
[2] Causation To prove causation under the CLA, the breach must be a ‘necessary condition’ s 11(1)(a) CLA and it must be appropriate to extend the scope of liability to [the harm caused.] To decide the scope, the court is to consider whether or not and why responsibility for the harm should be imposed s 11(4). We must use CL tests to determine why responsibility should be extended. Single cause: BUT FOR TEST: Would [P]’s [specific damage] have happened but for [D]’s [wrongful act] on a balance of probabilities? (Barnett v Chelsea Hospital Management Committee)
Multiple causes: [D]’s negligence need not be the sole cause of the particular harm, it need only be a necessary condition. (Cox v NSW) In cases with multiple causative factors, Australian judges use test of “ordinary common sense and experience.” (March v Stramare)
Proportionate liability: if there are multiple causative factors, the court can apportion liability to reflect what the court considers ‘just and equitable’ ‘having regard to the extent of the Def’s responsibility for the loss or damage’ s 31(1)(a)
Exception: Personal injury claims are not apportionable. Therefore, [x] can only select one defendant and if more than one person causes the injury, they can claim from each other.
NOVUS ACTUS INTERVENIENS
[D] will argue that the intervening event [‘the collision with the ambulance’] is an intervening event that breaks the chain of causation. Therefore, [P] will argue that the subsequent event was a reasonably foreseeable consequence of [D]’s negligent conduct and that [D] is liable for all of the damage.
Q: Is the subsequent event a reasonably foreseeable consequence of [D]’s negligent conduct?
It [is/is not] rf , not fff, that [D’s negligent conduct] would result in [intervening event] as….
Its occurrence won’t be sufficient to break the chain of causation if it is precisely the sort of thing you would expect to happen. (Haber v Walker.)
Chain of causation broken by:
a) A human action that is to be properly regarded as voluntary (by a 3rd party or [P]) • Suicide of [P] not truly voluntary as his mental state was such that he had been deprived
of making a free choice. (Haber v Walker) • Not truly voluntary for police officer to lose control of his car during high speed chase
because he was only responding to the danger created by the driver of the vehicle being pursued. (Hirst v Nominal Defendant.)
• Becoming addicted to drugs after primary injury was the voluntary choice of [P] and the drug pusher (Yates v Jones.)
• Alcoholism not caused by primary negligent act as alcohol consumption was truly voluntary. [D] could be found to have caused it if it was the only way to relieve the pain. (Havenar v Havenaar)
b) A causally independent event, the conjunction of which with the wrongful act or omission is by ordinary standards so extremely unlikely as to be termed a coincidence (Haber v Walker.) • A negligent driver running into a car parked in the middle of the road is not an
independent event; it is reasonably foreseeable ‘in the ordinary course of things.’ -‐facts of March v Stramare
• D is not liable merely because [his/her] negligence brought the plaintiff into a position where the plaintiff encounters an ordinary hazard of life, except where [D]’s negligence imposed a handicap upon [P] meeting that hazard. (Pyne v Wilkenfield).
• Tripping over in hospital when recovering from primary damage could have occurred anywhere and was not caused by [D] (McKiernan v Manhire)
• Coincidence = being hit by a golf ball.
[3] Remoteness
In order to recover, [P] must show the damage suffered is not too remote in law.
The [specific damage-‐eg cuts] suffered by [P] must have been of such kind that the reasonable man would have foreseen: Wagon Mound No 1. In this case, this [kind – physical injury/psychiatric injury] of damage would be reasonably foreseeable as it is not far fetched or fanciful that [he/she] would suffer as a result of [D’s wrongful conduct]: (Wagon Mound No 2.)
o Provided the type of harm is foreseeable, the extent of that harm and the precise manner in which it occurred is irrelevant: Hughes v Lord Advocate;
Egg Shell Skull Rule: If [P] has shown that the damage is reasonably foreseeable, then [D] is liable for any consequential damage, which results because of [P’s] peculiarities: Smith v Leech Brain. The tortfeasor takes his victim as he finds him with all of his/her weaknesses and beliefs.
[4] Mitigation [x] has a duty to mitigate losses flowing from D’s wrong.
• Cost incurred in mitigation is recoverable from [D] if reasonable, even if the attempt increased the loss.
TEST: what would a reasonable person in [P]’s circumstances have done?
• Takes into account actual circumstances of P. Previously the hospital deformed his finger, wife had many unsuccessful treatments, he had anxiety. Held: no unr’able failure to mitigate his damage (Glavonjic v Foster)
• P suffering from conditions casued by emissions from smeltering factory. Emissions ruined his roof. Not fixing roof was no a failure to mitigate (Alcoa Minerals of Jamaica v Broderick).
• What if mitigation provides a benefit? • 7yo tractor burnt down. Had to replace tractor and mower urgently to avoid crop losses.
Purchase new tractor. Had to account for the benefit. Circumstances: He was going to stop farming and sell the tractor. Otherwise it may have been a different outcome. (Hoad v Scone Motors)
D can give written notice to suggest specified actions P should take to mitigate. Court will consider if P acted reasonably if he/she did not follow recommendations
• Consider if D offered to pay. • Failure to follow can reduce award of damages if unreasonable.
[4] Quantum Why? To put the P in the position as if the tort had not been committed. Once-‐and-‐for-‐all rule: you have one chance to submit your claim. No provision for going back.
• Award given by lump sum, but period payments available through statutory exceptions CLA.
• Why? Finality in litigation (Fitter v Veal) Exceptions:
1. Substituted award by appellate (rare) 2. Where there are different causes of action (Brunsden v Humphrey) 3. A continuing tort, eg recurrent nuisance or trespass 4. Statutory exceptions – allows installments to be paid s 63 CLA
Date of assessment
• Damages assessed by reference to: date on which cause of action arose: o Date of tort o Date on which injury occurred/became visible
• Court has discretion to fix own date to provide fair compensation • Date of judgment
o Damages for personal injury and defamation normally assessed as at the date of judgment.
Heads of damage: Future hospital and medical expenses
• Injuries requiring further medical or other services o Goods and treatment necessary for health and comfort o ‘Reasonable’ o At home or in hospital – whatever is fair to both P and D o Sharman v Evans
§ Seriously injured in accident. Damaged brain stem. Unconcious for one month. Could speak/walk and no control over basic bodily functions. Suffered from epilepsy and struggled to breathe but was unconscious.
§ REMEDY: would be better to be cared for at home w minor adjustments. The cost was double what it would cost to be care for in hospital.
• CONSIDERATIONS: o What would be reasonable between P and D o No real evidence she’d be better at home o The court denied the request and based the remedy n
the cost of the hospital stay only o REASON:
§ So it’s not punitive to D. Gratuitous services (provided TO the injured person)
• Services rendered by a family member without compensation • Would otherwise have been rendered by a professional • P is compensated
• Capped by CLA s 59 • Griffiths v Kerkemeyer
o Services provided free of charge. If P was not compensated, the D gets benefit from family’s good nature.
o underlying principle that it is a “plaintiff’s accident–caused need” which is compensated
• Damages calculated at market rate – ie not the lost earning capacity of the carer – it’s the need that is created.
• CLA: must have been provided for at least 6 hours a week for at least 6 months (see below)
Damages for gratuitous services provided to an injured person – CLA s 59 (1) Damages for gratuitous services provided to an injured person are not to be awarded unless— (a) the services are necessary; and (b) the need for the services arises solely out of the injury in relation to which damages are
awarded; and (c) the services are provided, or are to be provided— (i) for at least 6 hours per week; and (ii) for at least 6 months. (2) Damages are not to be awarded for gratuitous services if gratuitous services of the same kind were being provided for the injured person before the breach of duty happened. (3) In assessing damages for gratuitous services, a court must take into account— (a) any offsetting benefit the service provider obtains through providing the services; and
(b)periods for which the injured person has not required or is not likely to require the services because the injured person has been or is likely to be cared for in a hospital or other institution.
Gratuitous services (provided BY the injured person) – s 59A (1) Subject to section 59B, damages (section 59A damages) may be awarded to an injured person for any loss of the person’s capacity to provide gratuitous domestic services to someone else (the recipient) if subsection (2) or (4) applies. (2) Generally, the court may award section 59A damages only if it is satisfied of all of the following— (a) either— (i) the injured person died as a result of the injuries suffered; or
(ii) general damages for the injured person are assessed (before allowing for contributory negligence) at the amount prescribed under section 58, or more;
(b) at the relevant time the recipient was— (i) a person who resided at the injured person’s usual residence; or (ii) an unborn child of the injured person; (c) before the relevant time, the injured person— (i) provided the services to the recipient; or (ii) if the recipient was then an unborn child—would have provided services to the recipient
had the recipient been born; (d) the recipient was, or will be, incapable of performing the services personally because of the
recipient’s age or physical or mental incapacity; (e) there is a reasonable expectation that, if not for the relevant injury, the injured person would
have provided the services to the recipient— (i) for at least 6 hours a week; and (ii) for a period of at least 6 months; (f) there will be a need for the services for the hours and the period mentioned in paragraph (e), and the need is reasonable in all the circumstances. Future economic loss and lost earning capacity
• Loss of wages and earnings after verdict • Loss of earning capacity not as loss of earnings • Not easily quantifiable • TEST:
o (i) Earning capacity has in fact been diminished through negligently caused injury
§ eg losing fingers may not affect earning capacity to teach o (ii) reduction in earning capacity will cause a financial loss
• Medlin v State Govt Insurance Commission o Professor at Flinders uni. A lot of pain after injury. Impossible for him to do his
work. Retirement age at Flinders uni was 65. He decided to retire at 60. Early retirement was the result of the injury.
• Capped under CLA s 54 o 3 times average weekly earnings.
• DEDUCTIONS: o Discount rate ensures the lump sum payment takes into account NPV the 5%
rate-‐ (CLA s 57) is part of an actuarial calculation. o Vicissitudes of life
§ Must consider the probability of something happening (Malec v JC Hutton)
§ When looking to the future, a ‘chance’ is taken into account, provided ‘not trivial, not insignificant’
• Eg a 10% chance in future that P would become unemployable in any event
§ Periods of unemployment, leave, illness, accidents
Superannuation Cost of alterations to home
• P entitled to recover cost of alterations to home to accommodate post-‐injury position o Eg wheelchair ramps
• Principle: where ‘reasonable’ • Munzer v Johnston
o M seriously injured in car accident. 44 yo at accident. 48 when at court. Awarded 3.1 mil. Anniverary of her daughter’s death was coming up. Found drugs in her system; Property 20ks from nearest town. House on the property was shed-‐like. Had outdoor toilet. Bath-‐ they’d raised it 45cm to wash the dogs.
o One option would have been for her to live in Gladestone. Q: should be be allowed to stay on property? She had already decided to buy a kit home and put it on the property.
o HELD: not unreasonable to allow her to live on the property even though cheaper in Gladestone. The barn would suit her needs. She could also build her hydrotherapy pool. Hydrop pool was 50k. Would be beneficial. Awarded the projected cost of maintaining that pool. Also paid for hoist to get her in and out of the hydrotherapy pool.
Loss of amenities and enjoyment of life
• Loss of ability to consciously enjoy life to the full or to the extent that P would have enjoyed it, had it not been for the injury
• May include enjoyment and satisfaction you get from work o Court will not award damages if not aware of the loss
§ Skelton v Collins • Permanent vegetative state. Alive but not conscious.
§ Sharman v Evans • Couldn’t do anything. Life shortened, reliant on everyone. She
was aware of her loss. Pain and suffering (past and future)
• Includes physical and mental pain • Precise calculation impossible
o Difficulty does not prevent calculation (O’Brien v Dunsdon) o Capped under CLA s 61 and s 62
§ General damages include ‘pain and suffering’ and ‘disfigurement’ Loss of expectation of life
• Lifespan shortened as a result of injury • By how much? Basis of calculation = ‘historical’ tables of Aus Bureau of Statistics • Awarded for prospective happiness in period by which life has been shortened. • Capped under CLA s 61 and s 62
o ‘non economic loss’ defined to include ‘loss of expectation of life’
Injury scale value • Work out where they fall on the scale. This will tell you the monetary range. Once you
have an injury scale value, there’s no room variation of general damages. Loss of consortium, loss of servitium s 58
• Loss of partnership, friendship etc of a spouse. • Not for injured person but for the third party eg husband. • Statutory requirement CLA s 58
o Injured person died as a result of the injuries, OR o General damages for injured person assessed (before allowing for contributory
negligence) at $30,000+ o Loss of consortium capped at 3 times average weekly earnings.
[4] Defences Contributory negligence
• Contributory negligence can defeat a claim • Reduction of 100% possible • Adjustment to be made right at the end. • TEST: Standard of care required: reasonable person in the position of the Pl, with
consideration of what the person knew or ought to have known – CLA s 23(2) (a) and (b) Volenti
• Voluntary assumption of risk • Complete defence • (1) Knowledge (2) understood and accepted the risk (3) participated voluntarily in the
risk Other CLA:
• dangerous recreational activities – presumption of awareness of risk, no general duty to warn of obvious risks, and no liability if an inherent risk materialises.
Exemplary and punitive damages Available for many claims in tort. S 52 CLA: RULE: Exemplary (punitive) and aggravated damages cannot be awarded for a claim for Personal Injury
Exception: When the personal injury is cause negligently, but intentionally – eg banana peel left on flood hoping they’d slip.
Aggravated damages (PUT AS A HEAD OF DAMAGE)
• Awarded to compensate for injured feelings or dignity • Not available for negligently caused personal injury • Available for intentionally caused personal injury; also trespass, false imprisonment,
defamation, assault etc • Actual physical injury may be insignificant although aggravated damages awarded for
injury to feelings or dignity • Plead specifically.
Joint and severally liable? Will depend on their involvement
• Konstantiniidis v Foreign Media: liability of 4th defendant reduced because he did not engage in defamatory conduct
• RULE: aggravated damages are assessed on the basis of the particular malice of each joint tortfeasor (De Reus v Gray)
Exemplary damages • Purpose is punitive • Also intended to deter and stop need for revenge and self-‐help that threatens peace and
order • Def’s conduct to have been high-‐handed, insolent, vindictive or malicious, cruel, or
showing a contumelious disregard for the Pl’s rights • Often claimed, rarely awarded • If awarded in addition to compensatory/nominal damages, it will be a windfall
o General rule is that proof of loss is part of the gist of the action, then exemplary damaged will be parasitic on such compensatory dmages – must first satidfy the host claim
• Can have a claim for exemplary damages for negligence (Coloca v BO Australia) • Typically awarded separately to different defendants
XL Petroleum v Caltex Oil
• Vandalised smaller petrol stations by putting things in their oil • Business damage was minimal • Exemplary damages awarded -‐ $125,000
SELF HELP REMEDIES Self help means providing a remedy that does not require judicial intervention (but still must be within parameters of the law) Self help and the law
• Self-‐help actions may not breach the law • All of the risks which you attempt to avoid in K can be broadly considered self-‐help
remedies. Self help remedies in CONTRACT
• Contract may include virtually any terms • Contract terms are subject to rules regarding penalties and statutory provisions • Reasons for contractual remedies:
o Reduce hostility o Prevention of disputes o Avoidance of litigation
EXAMPLES OF NEGOTIATED CONTRACT REMEDIES • Progress payment clauses
o Eg pay only once work has progressed eg. building to windowsill height so that you don’t have to spent money until performance has been met.
• Liquidated damages (fixed sum, predetermined, a genuine pre-‐estimate of the loss) o Eg interest to be paid if late
§ Court interpreting it? 1. Look at ordinary/natural meaning of the clause 2. Interpret the clause by taking the overall contract into
considerationàto establish intention of the parties (wont consider the clause in isolation
3. Contra preferentum: if ambiguity, interpreted against the person for whose benefit it was inserted.
o Renting while building a house ie important contract finished b 1st Dec. If not contractor will pay you the cost of rental to compensate you for the loss you would have suffered
• Right to terminate for serious breach o Eg a “timing is of the essence” clause – makes any clauses about timing a
condition à therefore can terminate for breach INTERPRETATION OF SELF-‐CREATED CONTRACTUAL REMEDIES
• Aim: to give effect to the intention of the parties • If a term has been designated as a “condition”, generally seen as a “serious term”
o But not if result would be so unreasonable that court may decide that it could not have been the intention of the parties
Schuler v Wickham
• Condition that agent visited all of the customers once a week. • Court had to look at how it would interpreted strictly • HELD: although ordinary meaning made it clear that not visiting was a breach,
when they looked at the overall K and all of the things that the agent had to do, the court said that the clause did not take into consideration reasons that this couldn’t happen (eg sick) so it couldn’t be the intention of the parties to require, without exception, agent to visit every customer.
o Not a condition even though they said it was
• Penalty clauses o Acceptable if a genuine pre-‐estimate of damages not punitive
Dunlop Pneumatic Tyres v New Garage
• Dunlop wanted a minimum (list) price no matter where they’re sold • K said “we agree to pay Dunlop 5 pounds for every tube, tyre etc sold in breach
of this agreement by way of liquidated damages and not by way of penalty” • IMPORTANT: how to distinguish between liquidated damages
(purpose=compensate) and penalties (purpose=to punish)
o 1. TEST: what does the purpose appear to be? § Terrify? Ie. Will people perform for fear of paying penalty. If to
coerce/punish à penalty. NB: sheer size may indicate that it’s a penalty
§ Is it a genuine pre-‐estimate of the damage? If yes, liquidated damages clause.
HELD: difficult to determine loss arising from each particular tyre sold. HELD: this was a genuine pre-‐estimate, especially if lots of tyres are being sold below the list price.
LIQUIDATED DAMAGES VS PENALTY CLAUSES o Withholding: If you’re taking away more than you would receive, likely a penalty o Fixed charge: if no matter whether the breach is big/small you’ll be charged $80, then
pure penalty because it’s not linked with what actual loss is likely to be incurred. o If it’s outrageously high à prob a penalty (not a genuine pre-‐estimate of the loss)
SELF HELP REMEDIES IN TORT Abatement of nuisance
o Privilege of abatement (do something to stop it – within parameters of the law) o Only what is necessary to avoid the harm o On own land o If on land of the creator the nuisance à possible trespass and would need strong
justification o Requies notice to the owner
§ Unless immediate danger to life or health making it unsafe to wait (Traian v Ware)
o Need not wait for loss to occur – can be pre-‐emptive o But need to be careful because you need proportionality
o Abatement – damages before can be claimed, but probably not for damages AFTER abatement (because once you “abate” you’ve taken away the loss)
Traian v Ware
o Went onto neighbours land and broke the bank because it was damming up the water.
o HELD: self help remedy had been used high-‐handedly. D could have contacted P. P could have channelled the water elsewhere. The lack of notice meant it was a trespass to property.
o Principle: only reasonably measures which are necessary to avert the harm/avoid the loss (proportionality) can be taken.
Abatement: 1. Give notice 2. The cost is born by the person abating
a. BUT if you’ve acted to mitigate, you may claim the cost 3. Must be reasonable 4. Can’t do significant damage 5. Avoid force 6. If entering someone else’s land, must have good reason.
Tort-‐ trespass
o Evict uninvited intruders/trespassers o May use reasonable force to achieve that purpose
§ Person who takes these steps must prove: • 1) there was a trespass • 2) the steps taken were reasonable (what is r’able depends on facts)
o Proportionality is important o Should ask them to leave first
o Defensive action against trespassers o Intention is important
§ Deterrent or retributive?
o Would depend on the nature of the ‘attack’, whtehr it is propery or person attacked, and currently applicable legal and social standards as to degree to which property may be protected
Bird v Holbrook Shooting guy who was stealing his bulbs
• Tulips reached exhorbitant prices • Farmer had trouble with people stealing his bulbs • He set up a spring gun à whoever tripped the wire would be shot by
pellets (it wouldn’t kill them) • HELD: not a valid self-‐help remedy. Problem: the degree of force used but
mostly the purpose: o If it was a deterrent it would have been visible. o Here-‐ punitive (retributive) o Taking law into own hands. It was malicious.
• Principle: self help remedy has to commensurate with what would be a legal penalty. Can’t inflict more harm that what would be a legal remedy.
o Squatters
o Can also evict persons in possession of property and squatters o Can use force that is reasonably necessary
o Persons with some lawful right/previous lawful right o Need to use legal process
o Chattels or good that can harm property or inhabitant/owner o Eg Frisbee in neighbours yard. o Reason for trespass à is it serious? What is socially acceptable? Circumstances
will determine what is reasonably necessary and then what is proportionate. Tort-‐ defence against trespass to person
o Can defend against attack with force but not a greater degree of force than is ‘reasonable’ when protecting human life
o What is reasonably necessary? o Question of proportionality o Self-‐defence defences can be rejected if force is excessive
o Fontin v Katapodis o Argument in hardware shop. o Katapodis accused F of stealing something that he didn’t. o F hit Katapodis with a stick. Other employee came to help. Katapodis took a
piece of glass to defend himself which caused harm to F. o HELD: not proportionate. Not acceptable self help remedy.
o Underhill v Sherwell o Her injuries indicated some sort of force o He has to show that it was reasonable in the circumstances.
Specific Performance What is it? Order from court that directs a party to perform the agreement. It can be a threatened or actual breach. Narrowly:
• Executory contracts In a wider sense:
• Executed contract • Contract with consideration
Available if:
1. An agreement (TEST 1) 2. Breach or threatened breach of agreement by Def (TEST 2)
o But contract can’t be terminated 3. CL damages would be an inadequate remedy TEST 3 4. No discretionary defence or denial to disentitling relief. TEST 4
[ELE 1]: Agreement Either: 1) Agreement that is enforceable 2) Unenforceable agreement that can be made enforceable by doctrine of Part Performance (in equity) Unenforceable if:
• K is uncertain • K has been rescinded by the Pl
Doctrine of Part Performance:
• Transaction unenforceable at law or under a statute may be enforced if equitable doctrine of part performance has been satisfied.
o Eg: where there is an oral agreement that has to be in writing through statutory requirement
• Purpose of doctrine: enlarge part performance to full performance o Mainly applies to land.
• Maddison v Alderson – housekeeper on farm
o A had oral agreement with housekeeper, M, that he would give her a life estate in the farm
o She would then work for free o He didn’t leave it in his will o AT CL: had to be in writing o PART PERFORMANCE:
§ Evidence of existence of K § HELD: living on a farm and working for free is not part performance.
Actions must be “unequivocally referrable” to the promise. That was not the only reason she performed the services.
• Kouri v Kouri – selling house to brother o 7 brother and sisters. o Some of them bough a house. 2 lived in it. o 3rd sold his ownership to his brother, B (who paid him). o All done orally, not in writing. o B also repaid some loans his brother had to get the house.
o He didn’t get the house o HELD: he did not perform the actions of an owner
[ELE 2]: Breach or threatened breach of agreement by def [X] has [breached/threatened to breach] the agreement by […] K must not be terminated: [X] has terminated the K by […], therefore specific performance is not available. [ELE 3]: CL damages would be inadequate Damages are inadequate if they cannot satisfy the demands of justice. Justice to a promisee may require that a promisor perform what he has promised (Zhu v Treasurer of NSW).
• Sale of racehorse • Publication of an apology • Contract to settle litigation • Land
o Equity always ordered SP for contracts for sale of land § No real substitutes, land may have ‘a peculiar and special value’ (Adderley v
Dixon) o Remedy usually has to be available to both purchaser and vendor (mutuality)
• Money o Damages generally adequate for breach of K to pay money o Except
§ If purchaser can obtain SP, then the vendor can also obtain SP § If damages inadequate (some indemnity contracts, security contracts,
contracts for payment of money and land) • (Loan Investment Corp. v Bonner)
o Combo of sale of property and a loan attached o Breach: failure to grant a loan o HELD: no SP because they were so interlinked
§ Agreements to pay money to 3rd parties (privity doctrine) • Coulls v Bagot’s Executor and Trustee Co
o Agreement to quarry a property and would pay for the rights when did – did privity prevent her from claiming?
o HELD: she was a third party • Beswick v Beswick
o Uncle sold his business to nephew in exchange for sale of business. Agreed to pay him an amount each month for the rest of his life.
o After uncle died, would have to pay wife 5 pounds every week.
o She sued because she was the executor of the estate. o HELD: No. Not because she didn’t follow the right process
but because he had passed away. (agreement was to pay the husband.)
• Goods (personal property, chattels) o Generally, contracts for sale of goods not specifically enforceable o Except
§ If article is of unusual beauty, rarity or distinction (original painting, vintage) – damages will be inadequate
• Not inadequate if: supply is merely low (temporarily) • Cook v Rodgers
o Sale of car after WW1 o HELD: mere temporary unavailability of car did not mean
that damagers were inadequate • Dougan v Ley
o K for sale of taxi after WW1. Vehicles were rare. o Taxi license was attached to the car à had to buy vehicle
with license (licenses were rare and hard to come by) o HELD: taxi unique. Damages not an adequate remedy
• Doulton Potteries v Bronotte [FIX THIS] o Dye. o Breach: repairer and Doulton o HELD: mandatory injunction because dye was
irreplaceable. If you wanted to make a copy you reduced it.
• Personal services Damages may not be adequate if the services of a particular person are required. Often not possible to obtain SP because of discretionary factors. -‐slavery: forcing someone to work for someone else.
• Intellectual property These rights are unique Contracts concerning patents, designs, copyright or trade marks are specifically enforceable if damages are inadequate
• Goodwill and business assets Chattels with business value – SP possible
• Stocks, shares and securities SP not available unless a type of share is not readily available on the market
[ELE 4]: No discretionary defence of denial to disentitling relief
[1] Continuing supervision: courts may refuse order of SP if the continued performance o the K will require continuous supervision of the court
• Ie it’s likely the dispute would continue and the SP would not solve the problem o Carrying on a business:
§ Courts will not order a business to be carried on over an extended period of time (Cooperative Insurance Society ltd v Argyll Stores)
o Building and repair covenants: § Courts do grants orders of SP in building and repair covenant cases despite
the need for supervision provided the terms of the order is precise (Cooperative Insurance Society ltd v Argyle Stores)
• A entered into lease with company who owned shopping centre for 35 years
• After 15, close up shop (breaking K). They were head tenants à when they left, it affected the income for other tenants.
• P wanted SP to make A open up their store • Here, damage may be inadequate • Must think about the practicality of this order – can you calculate
the $$ effect on other tenants? • HELD:
o If we order them back in, the K doesn’t say exactly what is considered “trading” for it to be performed.
o Considered burden on the D, compared with the loss the landlord has suffered.
o SP NOT granted.
Effect of ignoring an order for specific performance: contempt of court
[2] Personal services: Courts traditionally do not award SP for breach of K for personal services
Reasons:
• Would require constant supervision of the court • May compel unwilling parties to maintain personal cooperative relations • Difficult to enforce because performance of personal service contracts involve matters of
personal opinion and taste (eg. not performing it to the best of their ability) (Lumley v Wagner).
Look at:
[1] Hardship [2] Clarity with which services has been described (Posner v Scott-‐Lewis) [3] Continuous supervision [4] Whether terms would be too harsh on D if enforced (De Francesco v Barnum)
• De Francesco v Barnum o Dancer: obligations onerous o She wasn’t allowed to get married etc. He had hardly any obligations o SP wouldn’t be granted because of the harsh terms
• Lumley v Wagner o W was opera singer. Promised she would only sing at the Globe and to only play for
this one guy. o If court ordered her to sing in Lumley’s theatre + she was spiteful, she would sing
poorly. o SP not possible here.
[3] Mutuality: Should be capable of being awarded to both parties
Court is reluctant to do so but has discretion to grant the P SP even though not available to the D
Examples of lack of mutuality:
• P has already performed obligations • P has not performed obligations but that breach can be compensated for in damages • D is guilty of fraud or unconscionable conduct
• Price v Strange o P wanted to rent house from S. S was a tenant. P would become sub lessee. o Deal: in exchange for renta, she would:
§ D’s obligation: grant sub lessee to price § Price’s obligation: to do repairs inside and out
o Before lease was granted, she kicked him out. He had already done the inside. o She ended up doing the outside. o She argued: No mutuality – nothing left for him to do o HELD: allowed him in to do the work àhe thought he was getting sub-‐lease.
§ Created an equity against her. It wasn’t his fault that he didn’t do the outside: she did that.
§ ORDERED SP.
[4] Hardship: Reluctant to order SP if it will cause undue hardship or unfairness to the D.
Examples: 1. An unfair or low purchase price for the defendant vendor (Farrell v Bussell) 2. An erroneous valuation fixed the price of the contract (Legal & General Life of Australia v A
Hudson) 3. Enforced removal of a physically disabled defendant vendor with children from property
where she was able to receive help form relative and friends who lived close by (Patel v Ali) 4. The land purchased by the D would be subject to forfeiture (Norton v Angus) 5. The order would expose the defendant to prosecution (Pottinger v Genge) 6. The defendant lessor of a hotel would be required to undertake many costly repairs and pay
taxes without receiving rent or profit for many months while the plaintiff retained possession (Dowsett v Reid)
7. The defendant would be required to run a business at a loss (Cooperative Insurance Society v Argyll Stores)
8. The defendant would be forced to become the reluctant proprietor of a brothel (Hope v Walters)
9. The defendant would be required to maintain a joint venture after an “irretrievable breakdown of relations” (Cannavo v FCD)
Longtom v Oberon Shire Council – quarry
• Farm land. Council had rights to build a quarry. They gave a covenant: “would repair and restore after they had finished.”
• It was going to cost $360k. Council pleaded hardship • Mere financial hardship not enough. • Something more required. • P couldn’t see the quarry from the house. Value of farm unaffected by quarry. No real benefit
to having it filled up. • If claimed in damages, wouldn’t get much. Court saw it as a bargaining chip.
[5] Ready and willing to perform:
At all material times, P must be ready and willing to perform the substance of the contract.
Mulkearns v Chandos Developments
P generally shows that P is not able and willing to perform by showing the P is in breach
• Must be a breach of an essential term
Green v Somerville
• Purchaser of land arrived at settlement without enough money à delayed settlement • Allowed to move into property • Agreed on new settlement date • She didn’t have the money to pay the interest. She said she wouldn’t pay the interest because
she paid rent. • HELD: the fact that relied on an incorrect interpretation of the K didn’t make her
unwilling/not ready to perform. o QUANTUM: paid interest less a deduction for the rent (ie the amount already paid)
[6] Unclean hands:
“Unmeritorious conduct”
Only conduct that relates directly to the equity (equitable remedy) sought
Examples:
• Fraud • Undue influence by the P
Not unmeritorious
• Hard bargaining – ‘sharp practice’ • Innocent misrepresentations • Unconscionability
[6] Futility:
• If SP futile – court may refuse order o Eg restoring property that will be demolished next month
• If D establishes that the performance of the Contract is impossible – order of SP refused.
Iambic v Northwind holdings
• Not futile to order SP of a K to sell shared in a private company where the purchaser could no longer afford the agreed price.
[7] Delays:
• Mere delay not enough unless it amounts to an: o Acquiescence
§ your conduct appears you’ve accepted the circumstances o Lache
§ your delay has caused some sort of injustice
Lamshed v Lamshed
• Degree of promptness depends on the nature of case and circumstances. • Waiting 6 years = too long.
Fitzgerald v Masters
• Delay of 26 years = not too long.
RECTIFICATION [1] Written instrument
• Incl. deeds, insurance policies, bonds, documents, conveying gifts [2] Mistake by the parties as to contents or effect Traditionally Maralinga v Major Enterprises
• Vendor (seller) of property said to auctioneer “when you auction my property, these are the terms I’m willing to accept”
o “I will take the first $75,000 of the purchase price in cash and the balance, I will grant a mortgage on (I will lend the money to the buyer over a period of 3 years.)”
• When the K was actually written, the finance option was not reflected in the document. The house was sold for $155,000 so it was the $80,000 that would have been under the 3 year mortgage.
• At the time the contract was signed, it was known that there was a mistake in the contract. It wasn’t a surprise later.
• The buyer didn’t think that would preclude him from getting the mortgage. • HELD: rectification not granted bc it was a mistake with regard to the effect, not the
contents.
Modern View: It would have also covered that where it was about the effect of the contract.
Commissioner of Stamp
• Parties intended that the trust deed had to be amended so the company would become an income beneficiary.
• Document drafted, which made the company a capital beneficiary and the company incurred some additional duties as a result
• It was an issue with the effect of the way it was drafted • HELD: rectification ordered to fix the contract to reflect the true intention between the
parties.
Will provide rectification as remedy for unilateral mistake where defendant takes advantage unconscientiously of a mistake: Medsara v Sande (2005)
• 6 adjoining lots of land (w 6 different owners) • lots bought up and sold to a developer for $5mil. • Although they were individually owned, all of the individual contracts were dependent
on the others. • Put in a call option to the developer-‐ meaning he could call up his option to buy within a
certain period of time. If he didn’t do so, the owners had a “put” option, meaning they would put it to him to buy the property and he would then be obliged. Both of them were really protected.
• It was important to them that the sale would be concluded by a certain date. • The completion date was a year later than what they had really wanted. • The undertone of this cases is that it was a mistake made by the solicitors. • Developer (M) knew the mistake had been made. • He didn’t make the mistake, didn’t intentionally do that or deceive them (eg no fraud or
deceit) but you do have unconscionable conduct • HELD: rectification allowed to reflect intention of the parties even though it wasn’t a
common mistake.
[3] Intention of the parties as to what instrument should contain at the time of execution
Must how evidence that the written instrument does not reflect true and concurrent intention of both parties at the time of execution of the contract.
• Not the time of negotiation • The term must have been actually agreed upon and either not included or incorrectly
included Slee v Warke
• Option to lease a Victorian hotel • Negotiated that the contract would contain an option to purchase the hotel, but the
purchase had to be completed within the first year of the rental. • The document was incorrectly drafted and it granted the option whenever (not just
within the first year) • Tenant (W) noticed this. She though that the owner of the hotel must have changed his
mind. • At the time of the execution of the contract the two parties did not have the same
intention-‐ the tenant’s intention was to execute it at any time, whereas the intention of the landlord remained the same – that it should only be exercisable within the first year.
• Therefore, because they did not have the same intention…recificiation not ordered. • Landlord lost out • Need concurrent intention
Antecedent K unnecessary Previously it was necessary to show an antecedent (often oral) contract – but approach now more liberal. Jocelyn v Nissen
• J and his wife were tenants • Out of this house he ran a car rental business • He ran into financial difficulties and his daughter came to the rescue • She bought the house that he rented so that her dad could keep on running the business
and she and her husband would live in the top part • They made a written agreement (dad and daughter) • At one stage her mother became ill and the father spent more time looking after that.
The daughter became more involved in the business • Made a written agreement that he can continue living in there forever and that she can
take over the car rental business. • Daughter paid for electricity and gas and the father basically lived there for free • Somebody had a look at agreement and told her that she was not obliged to continue
paying gas and electricity. It was not appropriately drafted. • Mr J approached the court and asked for a rectification fo the contract • Daughter argued “we had no antecedent oral contract before the written agreement and
therefore you cannot get rectification” • HELD: rectification granted because there was some outward expression of the intention
of the parties. • Still have to show the common intention but don’t have to show an antecedent
agreement.
NB: Key point in this element: intention must be actual-‐ not presumed and there must be convincing proof of it. [4] Discretionary factors Refused only in exceptional circumstances NO RECTIFICATION IF:
• Contract is incapable of performance • Contract has been fully performed
• Intention is illegal • If right to rescission exists, and rescission is preferred by Pl
o Ie walking away from it – if it’s available and the parties prefer it, the court won’t grant rectification.
NB: just because a party didn’t read the contract does not mean that rectification is not available.
EQUITABLE COMPENSATION Eg. if you wanted to donate coins to someone and we give them to Louise for that person’s benefit. Louise does something different with the money. Here, there’s no contract, it’s not a tort, no statutory breach – buuut it’s a breach of a fiduciary duty
Exclusive jurisdiction
• Eg. misapplication of trust assets • Breach of trust
Youyand v Minters (breach of trust)
• Minters held half a mil on trust for Y • Idea: they would subscribe to shares in a company with that (so they would be the
trustee or agent when they bough the shares) • They released the amount for the purchase of the shares in two instalments. They did
that without getting any security for the money they paid over • Breach of trust • HELD: equitable compensation
o It was because of the actions of minters that the money was lost
[1] Does the court have jurisdiction for Specific Performance or injunction? • They can be awarded in the place of or in addition to SP or injunction
[2] Discretionary factors • Equitable damages not awarded as a matter of right.
Sayers v Collyer
• Contract between the two for the rental of premises • D not allowed to use the premises for the purposes of a bottle shop • He did. • For 3 years, the plaintiff didn’t complain – he even bought beer from there • Breach of K. • Possibly a negative covenant in the contract (could get an injunction) • HELD: court did grant injunction because of the acquiescence – accepted the breach and
done nothing about it. That ruled out equitable damages for the same reason
Court can award both
• Can be awarded in addition to specific relief –but duplication of relief to be avoided (Grant v Dawkins)
Can award equitable damages instead of specific relief ‘
Eg if specific relief has become impossible during the litigation process
Damages can be awarded in substitution for an injunction, IF: (Shelfer v City of London Electric Lighting Co)
1. Pl’s injury to legal rights is small 2. Injury is capable of being estimated in money 3. Injury can be adequately compensated by a small money payment 4. Would be oppressive on D in the case to grant an injunction
[3] Wrongful act Equitable damages can be awarded for ‘any wrongful act’
• Torts
• Breaches of statutory prohibitions • Equitable wrongs
o Authorities recognize a jurisdiction for breach of confidence where the duty of confidence was purely equitable in nature.
Future loss/injury about to happen
Industrial Carpet Society v Slack
• Building buildings which would cut out the light when they were completed • Ie. A right to light case but the buildings were under construction • àcan’t claim in CL because • Can claim in equity.
[3] Assessment of damages
Follows CL principles of assessment in concurrent/auxiliary jurisdictions (Johnson v Agrew)
Governed by the compensation principle: “to put P back into the position he would have been in had it not been for the wrong”
Qualification: damages can be awarded under Lord Cairns Act even where damages at CL not available.
RESCISSION What is it? Reversal of a transaction so that each party is restored to its original position. In CL (for contracts) and in Equity (gifts etc) Available if:
5. Contract (TEST 1) 6. Vitiating factor in formation (TEST 2) 7. An election to rescind the contract TEST 3 8. There are not bars to restitution (restitutio in integrum) TEST 4
[ELE 1]: Contract [x] and [y] had a contract. [ELE 2]: Vitiating factor [z – vitiating factor] is a wrong recognised in equity, which renders the contract voidable.
• Misrepresentation • Mistake • Duress à pressure eg holding gun to your head • Undue influence à overbearing manner to persuade someone • Unconscionable dealing àletting someone with a disability be taken advantage of
[ELE 3]: Election to rescind (i) choice available: [x] may choose to:
• terminate and claim damages; or • rescind and obtain restitution
As [x] [was] aware of the [facts allowing the rescission—vitiating factor of…] and of [his/her] right to rescind, [he/she] [may] elect to: rescind and obtain restitution. (or alternatively may terminate and claim damages) NB: you may be held to have elected to affirm even if you didn’t have knowledge of your right to terminate. (Khoury v Government Insurance Office of NSW) CL 205 (ii) election: If [x] chooses to rescind:
• [he/she] extinguishes the right to enforce contract or claim damages If [x] doesn’t elect to rescind or terminate:
• affirmation of the contract extinguishes [his/her] right to rescind it. o Actions can amount to affirmation
The words/conduct of election must be unequivocal. Once made it is irrevocable. (Sargent v ASL Developments) CL 204 (ii) timing: immediate rescission not necessary (as long as they haven’t affirmed before they try to rescind) [ELE 3]: Restitutio in integrum – bars to rescission – restoration to precontractual position Rescission relieves parties of obligations yet to be performed under the transaction, and reverses anything done under the transaction. Not possible if (bars to rescission)
• Property has been destroyed or has deteriorated • Property passed under the contract has been acquired by a bond fide 3rd party (because they
have acquired property rights in it.) Scope of rescission Complete restitution is not possible because [piano broken/business doesn’t exist] so will not be ordered under Common Law.
However, if substantial restitution can be obtained, partial rescission may be ordered in equity where that is necessary to achieve what is “practically just” between the parties. (Maguire v Makaronis)
Rule: the court will limit the transaction to the extent that [P] would have been willing to enter it even without the misrepresentation (Vadasz v Pioneer Concrete).
Timing: restoration will be done as a the date of judgment, not as a the date of election (Alati v Kruger.) In equity:
• Alati v Kruger – shop case o K bought fruit business (ele 1 – contract to sell) o A misrepresented the potential turnover and didn’t mention that a supermarket was
about to open across the road (ele 2 – vitiating factor) o Made on average 30 pounds/wk rather than 100 pound/wk o K had to close it down o When applied for rescission there was no business that could be returned (restitutio
in integrum not possible at CL) o HELD:
§ the business closing was not Kruger’s fault § QUANTUM:
• take back the business and the money paid for it • deduct stock sold to third parties and the profits made • can make allowances for deterioration
• O’Sullivan v Management Agency and Music o O was a musician. Had K with MIM (ele 1 – contract) o MIM made many misreps about the contract (ele 2- vitiating factor) o When applied for rescission, contract had been performed (restitutio in integrum not
possible at CL) o HELD:
§ Rescission still possible § QUANTUM: got back the copyright in his songs and the master tapes. MIM
had to account for their profits but were given credit (incl small profit element) for their skill and labour in promoting the claimant and making a significant contribution to his success.
• Vadasz v Pioneer Concrete o V was a company director o Was asked to give a guarantee on company debts otherwise supplier would not
continue to supply (ele 1- contract) o He thought he was just guaranteeing future debts (ele 2 –vitiating factor: mistake) o The contract covered past and future debts o HELD:
§ The court only rescinded the contract to the extent of past indebtedness § He had promised to guarantee the future debts so he couldn’t “have his cake
and eat it too” – ie wouldn’t rescind it all • Maguire v Makaronis
o Maguire was Maks solicitor, who were buying a poultry farm o Maguire provided a link between Maks and the Commonwealth bank o Maguire set up a deal for them to get a mortgage o Maguire was a nominee (essentially acting for the bank) o Problem: a solicitor advising a client can’t become a party to the loan transaction and
he didn’t disclose it. o HELD:
§ Entitled to rescind. § Loan couldn’t be set aside because Maks would get a windfall. § So rescinded on term: mortgage to be repaid with interest. § Court rescinded the mortgage but put an obligation on them to pay back the
amount they borrowed.
RESTITUTION What is it? A cause of action outside contract, tort or equity and a remedy Basically a profit-based/disgorgement remedy. Examples of “restitutions for wrong”
• Mistaken payment (CoA in restitution) o Remedy=give the money back (restitution)
• Breach of confidence leading to profit (CoA in equity) o Possible remedy = give up profits made (restitution/account of profits)
§ Account of profits are for equitable wrongs (wk 11 lecture) • Trespass leading to profit (CoA in tort for trespass to land)
o Possible remedy = give up the profits made (restitution) Restitutionary causes of action Money had and received
• Mistaken payments • Payments made under duress • Money paid and consideration failed totally (in a contract)
Quantum Meruit • Claim for payment “as much as it was worth” or reasonable value of services received –
where contract cannot be enforced. Restitution as a remedy
• A remedy for causes of action in restitution • Also for certain torts – certain recognised categories • Common law wrong
o Eg property wrongs § Such as in torts – trespass, detinue
o Unclear- fraud? Defamation? Assault?
PROPERTY WRONGS Pl can choose to have damages assessed on a restitution basis instead of a compensatory basis. [ELE 1]: [Def] must have been enriched at the expense of [Pl] It is irrelevant that [P] has not lost anything. [ELE 2]: Quantum Gain from unauthorised use of equipment (trespass to goods) Rule: if there’s no loss to P, restitution can be measured as equivalent rental of such a piece of equipment, which is the saved expense (Olwell v Nye & Nissen Co) Gain from trespass to land Rule: if there’s no loss to [P], restitution can be calculated by measuring the benefit to [D], which is the saved expense (Penarth Dock Engineering v Pounds) Quantum: is normally calculated by the market value of rent for the period of the trespass (Penarth Dock Engineering v Pounds).
Exception: if the market value is unjust in the circumstances, the court may make a subjective devaluation (Ministry of Defence v Ashman)
Gain from trespass to goods (detinue) Rule: P is entitled to the value of the benefit to the D without P having to prove any loss. NB: it is irrelevant that the goods retained may not have been hired out for the entire time if D did have them in his possession (as this is the loss to the P- and would be considered in an action for tort, but this is an action for restitution.) (Strand Electric & Engineering Co v Brisford) Olwell Nye & Nissen Co
• Plaintiff sold their business to the D but terms of sale: P to retain ownership of egg-washing machine. P stored in a space next to the premises occupied by D.
• D took it out of storage without P’s knowledge and used if or the next 3 years. • Tort: trespass to property • No loss to P à there was no damage to the machine and he could still wash his eggs with it • HELD: even though there was no damage…
o BASIS OF CALC: § D made a saving in labour costs and not having to hire it from elsewhere by
using the egg washing machine § “the loss lies in the very essence of property- it’s exclusive use” § Awarded 10 pounds a week
Penarth Dock Engineering v Pounds
• P sold a pontoon to D • Terms of contract: pontoon to be moved away from the berth. D didn’t move it away. • Claim brought in trespass for mooring the pontoon onto P’s property • No loss to P • HELD: even though there was no damage… D infringed P’s exclusive right of use to land
o BASIC OF CALC: § How much they would have to pay elsewhere.
LJP Investments v Howard Chia Investments
• 2 adjoining properties • Asked permission from P to let scaffolding hang over. P said he would let them for $30,000 • D did it anyway without paying • No loss to P • HELD: initial amount quotes indicated the value that P placed on the infringement of his
right. o BASIS OF CALC:
§ If D had not infringed P’s right, D would have had to build a smaller a building or build further away from the fence.
Edwards v Lee’s Administration • P had part of cave on his property. So did D. But D had entrance. • D capitalised on this by building hotel and running tours. • P wanted compensation for trespass. • HELD:
o Rental not appropriate way to calculate the restitutionary remedy because “rental implies a long period of occupation.” Here, he just trespassed at regular intervals.
o BASIC OF CALC: § Real profits D made out of using their cave. § Brochures advertised all 31 caves, 12 of which were under P’s property § Remedy based on the licence- amount to be paid to waive the trespass. § Awarded cave profits proportionate to the number of the seeds under P’s
property
Ministry of Defence v Ashman • A married a guy who work for the RAF so they stayed in the RAF accommodation • He left her and she stayed on. Had nowhere else to go. • She didn’t pay rent for the time she stayed there (she did eventually move on.) • RULE: claim damages for loss (in trespass) or what the defendant benefitted • HELD:
o BASIC OF CALC: § it wasn’t the reduced rate they would normally charge the RAF staff, but the
market value (because this is what she would have had to pay elsewhere.) • in actual fact, she was eligible for housing commission so they
used a low rate. Strand Electric & Engineering Co v Brisford
• D detained and used for its own purposes the P’s switchboards, which P otherwise hired out for profit.
• HELD: o BASIC OF CALC:
§ Market hiring charge for the whole 43 weeks of detention, without any deduction for the likelihood that the goods would otherwise have been left unhired for part of that time.
ACCOUNT OF PROFITS What is it? Restitutionary in nature – disgorge a benefit (alternative to damages), and prevent unjust enrichment. Equitable remedy. EXCLUSIVE JURISDICTION Breach of trust or fiduciary duty Breach of confidence Trustee or judiciary to account for the entire profit made by reason of the breach (Consul Development v DPC Estates)
1. Is not penal or punitive 2. An equitable allowance as remuneration for work and skill (as long as not dishonest)
a. Only granted in cases where award of account of profits could not have effect of encouraging trustees to put themselves in a position of conflict of interest.
3. If trustee makes profit entirely by misapplication of trust money, beneficiary entitled to the entire profit
4. If profit made partially from trust money – beneficiary entitled to profit pro rate 5. If property purchased, account to be made even before property intended to be sold to realise
the profit Scott v Scott
• Mother died • Left a will: “house in which te husband and children were staing was to be
placed in trust with her husband having the right to stay in the house untl his death and then the assts would dissolve to the children.
• Husband remairre,d and sold the house • It was that house that had to be accounted for because the money from that
house was used
6. Acquisition of a business and its operation – allowances to be made for skills, effords property and resources of the Def.
AUXILIARY JURISDICTION Infringement of intellectual property rights [ELE 1]: An injunction must be capable of being awarded [ELE 2]: Account limited to profits derived from Def’s knowing infringement of P’s rights. Colbeam Palmer
• Awarded even though injunction not possible • Trademark stolen • During litigation, he assigned the trademark – his right in trademark expired • HELD: entitled to account of profits. Granted for period of time there was a knowing
infringement [ELE 3]: A discretionary award - discretionary factors apply [ELE 4]: Assessment of quantum: deductions
Even if ‘notoriously difficult’ and not capable of ‘mathematical exactitude’ – still needs to be awarded this remedy.
Court will consider deductions:
1. Costs of the Def for manufacture and sale (Peter Pan Manufacturing Corp v Corsets Silhouette
a. Def bears onus b. Costs of materials, wages other ‘solely referable’ to manufacture and sale:
i. Not costs of overheads if unused capacity utilized ii. Costs of overhead if opportunity to manufacture non-infringing goods
forgone (Colbeam Palmer v Stock Affiliates)
Peter Pan
• Manufactured corsets • They had particulr way they manufactured. • During a visit to the US and they revealed some of their dieas in confidence • Silouhette manufactured these “U25 and U15” • Infringed • Made it clear how you would define profit: income derived from the business, less the cost.
You have to look at what portion of the profit the D is entitled to keep. Can deduct the cost of manufacture
2. Part of the profit that Def is entitled to keep
Apportionment of profits between owners and infringers
RULE: if another person’s IP is used, accountable for any profits made attributable to use of another’s property (Colbeam Palmer v Stock Affiliates)
TEST:
1) What is entire profit from sales of infringing goods? 2) What part of the profit is attributable to infringing use of the mark?
Dart Industries v Décor Corp – all sales attributable to infringement
• Household canisters that they manufactured • Distinguished their idea because it had a push button on the lid. It was stolen by Décor Corp. • The court stripped all of the profits – stripped 100%. No apportionment for the fact that a part
of the product was infringed.
TPA [ELE 1]: Does TPA apply? [x] is a corporation. REMEDY: s 82(1) [1] Loss or damage
§ eg. loss of money/lawnmower didn’t work § any monetary, physical, economic loss (wider than tort), personal injury or
death § Must show ‘worse off’
Marks v GIO Aus Holdings:
• False rep that interest rate would be made at x% • Actually allowed variable interest rate to be made • D won the case because no loss was sustained because
that was still the best loan available.
[2] By the conduct of another person [3] Conduct in contravention of relevant provisions of Act
Purpose: place Pl in position that he would have occupied if wrong not committed.
CL principles imported:
• Compensatory • Causation • Remoteness • Mitigation • CN: - s 82(1B)
o Damages can be reduced proportionately unless D acted intentionally or fraudulently o No apportionment in Personal Injury or death claims o P’s gross negligence can sever the link between contravention and the P’s loss.
REMEDY: Damages - s 87
• ELEMENTS OF BOTH: o Cause of action
§ Resctrictive trade practices, unconscionable conduct, misleading and deceptive conduct, other consumer protection issues
o Causation § Practical or common-sense approach (March v Stramare) § If there’s an intervening cause à sufficient if D’s contravention was ‘a’
cause (need not be the sole cause) § S 82: right to a remedy § S 87: discretionary
o Damage not too remote § Damages for misleading and deceptive conduct usually similar to those of
tort of deceit § TEST: “All directly caused losses”
• Entitled to recover all loss flowing directly from the deceit/contravention of the TPA
• Likely test: ‘reasonably foreseeable in a general way’ –not sure if different from CL test
§ Pure economic loss is recoverable irrespective of damage to person or property
o Reasonable steps taken to mitigate damage § Duty on P to mitigate the loss or damage
o Contributory negligence § Mere CN is not sufficient to affect claim against D
• Needs to be ‘grossly unreasonable conduct’ or ‘gross negligence’ or ‘extraordinary stupidity’
§ Apportionment possible to the extent the court thinks is ‘just and equitable’
s 87: provides additional cause of action and remedies
• S 87(1) – orders as court thinks appropriate o Much broader “smorgasboard” or remedies o Eg rescission, dismantling contracts
Difference under 87:
• Can give any order • It’s discretionary • For loss actually suffered and likely to be suffered • Can be for part of a loss
S 82 s 87 Creates both a right and a remedy All remedies are discretionary – but discretion is
wide with remedies not available under CL or Equity
Damage is the gist of the action Order can be made for loss suffered but also loss likely suffered
Gives a right to complete recovery of loss or damage
Relief may be given to only compensate for part of the loss or damage
Does not have the ability to reduce or prevent likely loss
ASSESSMENT OF DAMAGES (FOR BOTH)
• Put P in same position as would have been has breach of Act not occurred • No double recovery • Lump sum rule does not necessarily apply • Structured settlements – s 87ZC • Date of assessment: likely date of breach or date of damage
o And ‘all matters known at a later date’ o Because in many instances the loss only occurs after the contravention (so would be
taken from the time that loss occurs) • Expectation loss not available • Loss of opportunity can be recovered • Mental stress • Reputation
o In actions similar to ‘passing off’ and ‘defamation’ • Interest
o Possible • Exemplary and aggravated damages – s 87ZB • Limitation period: 6 years from the date of cause of action accrued
TORT OF DECEIT
Tantamount to fraud
1) Factual misrepresentation 2) Person who made the misrep knew it was false
a. Recklessly – indifferent to the truth
b. No belief in the truth 3) Intended P to rely on it 4) P did rely to his detriment.
REMEDY: RESCISSION
• Rescission for vitiating factor in contract formation – s 87(2)(ba) o Through an order refusing to enforce any or all o the provisions of a contract made in
contravention of the TPA o Guided by equitable principles of rescission
• NB: s 87 is very flexible. Can combine damages order with order for rectification; can dismantle contractual arrangements; can vary part of the contract, can return property; can repair goods or services; can make order against 3rd parties
REMEDY: SPECIFIC PERFORMANCE
• Mandatory injunction – s 80(5) only possibility o Where loss has been suffered or is likely to be suffered.
• Object is to compensate, prevent or reduce the loss (different from equitable remedy)
REMEDY: INJUNCTIONS
• S 80 • Prohibitory and mandatory • Aim is protection of the public • Any person can apply for an injunction • Order can be given irrespective of whether or not damages would be adequate • Equitable principles not relevant
REMEDY: Mareva order
• Available under s 87A