Cases BLAW10001

Question 1

ABC v Australasian Performing

Answer 1

not the function of the court to attribute to the parties an intention for which their express words/terms don’t provide; assumption that parties agree to convenient & sensible commercial terms (commercial realism), however when it override expressed terms

Question 2

ACCC v TPG Internet:

Answer 2

misleading conduct; ‘headline’ message of the ads had a tendency to lead consumers into error as regards the nature of offer; ads deliberately sought to present message selectively by emphasising some (internet fee), while de-emphasising others (bundled cost + set up fee)

Question 3

Alcatel Australia v Scarcella:

Answer 3

duty of good faith implied as universal term of contract, but Scarcella hadn’t breached it by ensuring fire safety measures are carried out in expense of Alcatel bearing cost as part of their contract obligation; He hadn’t exercise power in a capricious/arbitrary manner

Question 4

Allcard v Skinner:

Answer 4

undue influence; Relationship between Allcard & the order was that of devotee & religious adviser(fiduciary relationship), hence the court presume undue influence occurs in this transaction and decided it can be voided, however Allcard had waited too long to seek relief, she has in effect ratified the transaction when she was no longer under any undue influence

Question 5

Associated Newspapers Ltd v Bancks:

Answer 5

breach of condition; AN’s promise to put Bancks’ comics in the front page is an essential term/condition; hence, Bancks is entitled to terminate contract and sue for damages.

Question 6

Aust. & NZ Bank Ltd v Ateliers de Constructions:

Answer 6

implied authority; duty to keep principal’s funds separate; ACEC appointed Helios as its agent in Aus. to sell their equipment; cheques from sales were paid into Helios’ ANZ account, before giving it to ACEC; however, when Helios went bankrupt not all cheques were forwarded & ACEC asked ANZ to pay it back; Court decided that even though Helios was not given authority to pay the cheques to their own account by ACEC, the authority could be implied from the necessity to make the contract commercially workable (give business efficacy to the transactions)

Question 7

Australian Knitting Mills Ltd v Grant:

Answer 7

terms implied by legislation; Underwear sold was of merchantable quality, even with defect, as the same underwear would not have posed a problem to most people (sulfur allergy)

Question 8

Baldry v Marshall:

Answer 8

Mere fact that goods are described by trade name doesn’t necessarily exclude the implied term regarding suitability of purpose, with the test of did the buyer, in purchasing goods by name, form judgement that it would be suitable for their own purpose without reliance on seller

Question 9

Balfour v Balfour & Cohen v Cohen:

Answer 9

intention to bound; agreement between married couples are not meant to be legally enforceable

Question 10

Baltic Shipping Co v Dillon:

Answer 10

distress/disappointment; Dillon entitled to damages for distress from shipwreck as the defaulting party had expressly or impliedly agreed to provide pleasure, etc and hence in breach and liable

Question 11

Barton v Armstrong:

Answer 11

physical threats; even though threats/duress was not the only reason behind Barton’s decision to buy shares from Armstrong, it was still sufficient for the contract to be void

Question 12

Bertram, Armstrong & Co v Godfray:

Answer 12

duties of agent; duty to follow instructions; Godfray instructed BA to sell the stocks when its price reached “85% or above that price” at which they’ve bought it; BA failed to do so in expectation of a higher price; court held that instruction given by Godfray was specific and BA, as their agent, had no discretion to wait; agents are required to carry out the instruction given by their principal and hence liable for losses

Question 13

BP Refinery v Hastings Shire

Answer 13

terms implied ad hoc; officious bystander test failed – the court do not hold the term that lower rates would only be payable while BP itself occupied the site rather than its subsidiary

Question 14

Brinkibon Ltd v Sthal…

Answer 14

acceptance by fax/telex was effective when and where the acceptance was received

Question 15

Buckenara v Hawthorn Football:

Answer 15

injunction; court issued an injunction ordering Buckenara not to play for any other club that was in competition with Hawthorn; this is done to prevent a likely breach of contract

Question 16

Burger King v Hungry Jack’s:

Answer 16

Duty of good faith is implied in this contract and has been breached by BK’s refusal to approve sub-franchise outlets, which is required term for HJ to achieve; BK was found in breach as it has used its contractual powers for a purpose outside the contract (thwart HJ)

Question 17

Burns v MAN Automotive (Aust) Pty Ltd:

Answer 17

loss mitigation; Plaintiff is not required to take steps to mitigate loss if they don’t have the necessary means to do so; Burns’ impecuniosity allows him to be compensated as he couldn’t afford to buy a new vehicle or to fix the engine (hence unreasonable for him);

Question 18

Butcher v Lachlan Elder Realty:

Answer 18

disclaimers; misleading conduct; Lachlan had not engaged in conduct that amounted to a breach in s52 of TPA; disclaimer written in the brochure was in small writing, but was clear and legible; He didn’t purport to do anything more than pass on information from another source, which turns out to be false

Question 19

Carlill v Carbolic Smoke:

Answer 19

1. promise to pay award intended to be binding as Carbolic expressly stated they had deposited 1000£,
2. The act of buying and using by Carlill => performed in expectation of a known promise, constitutes executed consideration => promise enforceable.
3. Offer’s made to people who used productàCarlill is legally capable to accept the offer
4. Acceptance of an offer can take place by conduct (e.g. Perform required acts by offeror)

Question 20

Causer v Browne:

Answer 20

liability of bailee; expressed terms; Statement is written in laundry docket, which is not expected to be of contractual nature and hence the statement had not become an enforceable term.

Question 21

Cehave NV v Bremer HandeL..:

Answer 21

breach of innominate terms; Pellets delivered by Bremer weren’t in good condition, hence breaching contract; but term in breach was an innominate term which has few consequences, Cehave had no right to termination of contract but had rights to sue for damages

Question 22

Codelfa Cons. v State Rail of NSW:

Answer 22

1. OBT failed; noise law never considered ad hoc; must be inferred from agreed term, not external ones;
2. discharge by frustration; injunctions (noise laws) makes impossible for Codelfa to complete contract on time; Court held that performance as originally agreed had been frustrated; unfair to enforce original agreement; contract discharged by court

Question 23

Ermogenous v Greek Orthodox:

Answer 23

intention to bound; even if the agreement is made in a religious/friendly circumstance, the work is intended to be legally binding in this specific circumstance; the notion of ‘presumption’ dangerous; it is advised to make a judgement on the case by case basis

Question 24

Commenwealth Bank of Aus. v Amadio:

Answer 24

unconscionable dealing; Amadio had acted in unconscionable dealing by not informing parents of his debtness and coupled with the bank’s choice not to ensure the Amadios understand the true extend of their decision and risks, made the mortgage contract voidable

Question 25

Concrete Construct. v Nelson:

Answer 25

meaning of ‘in trade or commerce’; misleading conduct; Nelson’s injured resulting from false information given by foreman of company during construction; but the company hadn’t breached s52 (misleading conduct) as info. was not part of the company’s commercial or trading activities, but rather only something incidental to those activities

Question 26

Connor v Stainton:

Answer 26

non-performance; Stainton hadn’t substantially performed the contract, as what he had done is fundamentally different to what is agreed; hence not entitled to payment for fences built (contract termination)

Question 27

Coulls v Bagot's Executor:

Answer 27

privity; right of 3rd parties; even though Mrs Coulls had signed contract, she had not given any consideration to making contract legally binding between herself & O’Neill, hence she is not considered the party of contract and has no right to enforce royalty payment from O’Neill

Question 28

David Jones v Willis:

Answer 28

terms implied by legislation; broken shoes wasn’t of merchantable quality; it hasn’t fulfilled the purpose such goods are used for

Question 29

Donoghue v Stevenson:

Answer 29

duty of care; foreseeable harm; court decided Stevenson owed Donoghue a duty of care and may sue for damages for negligence on the basis that he had supplied the contaminated food

Question 30

Donoghue v Stevenson:

Answer 30

duty of care; foreseeable harm; court decided Stevenson owed Donoghue a duty of care and may sue for damages for negligence on the basis that he had supplied the contaminated ginger beer

Question 31

Dougan v Ley:

Answer 31

Ley entitled to specific performance (taxi + operating license); the object in question is unobtainable elsewhere, hence damages cannot provide adequate remedy in these circumstances

Question 32

Esso Petrol v Comm. of Customs

Answer 32

agreements reached in commercial context is considered legally binding, Esso’s promise to give coins is considered a legally binding offer/sale, hence subject to purchase tax.

Question 33

Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd:

Answer 33

Pateman was in breach of an implied term that they should provide goods that’s suits Expo’s purpose, which is a leak-proof window, which they hadn’t provided

Question 34

Fitzgerald v FJ Leonhardt:

Answer 34

statutory illegality; effects of penalty and prohibition; the Water Act 1992 (NT) required landowners to acquire permit in advance of drilling any boreholes; even though Leonhardt has drilled in Fitzgerald’s land without him having a permit, the contract was still enforceable because the Act penalised such conduct, but does not prohibit it; court consider statute not to imply prohibition was intended by legislature

Question 35

Freeman & Lockyer v Buckhurst Park:

Answer 35

grant of authority; agency; apparent authority; 1. Court held that Kapoor had not been granted any actual authority to bind Buckhurst in a contract with Freeman; 2. But, court found that board knew Kapoor was acting as manager (even if never specifically granted the position); hence Buckhurst shouldn’t be allowed to deny liability as Kapoor had acted in good faith and rely on apparent authority to act as company’s agent

Question 36

Garcia v National Aus. Bank:

Answer 36

unconscionable dealing; mortgage should be set aside as void as Ms Garcia didn’t understand the effect of the deal (but rather just trusted her husband) and gained no financial benefit from undertaking, & creditor failed to ensure that she’d been properly explained

Question 37

Garry Rogers Motors v Subaru (Australia):

Answer 37

vitiating circumstances; unconscionable conduct; Subaru was found to not done any unconscionable conduct in breach of s51AC ; even though Subaru failed to provide written reason for termination of franchise agreement (industry code of conduct), the reason was known well by both party, hence court finds this reason insufficient in the circumstance to amount to unconscionable conduct

Question 38

George Wills & Co Ltd v Davids Pty Ltd:

Answer 38

canned beetroot is of merchantable quality as it has a reasonable half-life of 1 year and a reasonable person would accept them under the circumstances given

Question 39

Govt. of Newfoundland v Newfoundland Railway Co:

Answer 39

divisible contracts; NRC entitled to land promised for each of the seven 5-mile sections completed, even though the complete railway would no longer be built

Question 40

Great Peace Shipping v Tsavliris:

Answer 40

mistakes regarding quality; strict approach by court to preserve reliability of agreement; even if there are ships closer to help than Great Peace, it’s still close enough to perform the task it’s contracted to do (rescue the crew) & wasn’t ‘essentially different’ to what was intended; contract was not void in common law, nor voidable in equity

Question 41

Hadley v Baxendale:

Answer 41

consequential loss; Hadley wasn’t entitled to lost profits as it’s not considered to be a consequential loss cause Baxendale (courier) isn’t told that mill would be inoperational; loss hasn’t been in both parties’ minds

Question 42

Handbury v Nolan:

Answer 42

representations and terms; statement made during the formation of a contract becomes term of the contract if it’s inferred that it was intended to be legally binding; contra proferentem interpretation in regard to another clause regarding exclusion of liability in favour of buyer

Question 43

Hawkins v Clayton:

Answer 43

liability of professionals; tort; Clayton was liable for Negligence; the solicitor owed Hawkins a duty to find him and tell him he was the beneficiary of Brasier’s estate (which has depreciated and lose value)

Question 44

Henthorn v Fraser:

Answer 44

acceptance by letter/post was effective as soon as posted

Question 45

Hide & Skin .. v Oceanic Meat:

Answer 45

interpretation of H&S was correct; by giving words their true meaning, and establishing parties’ intention and post contractual behaviour

Question 46

Hochester v De la Tour:

Answer 46

anticipatory breach; de La Tour had breached contract even though deadline had not been passed yet, as he had expressly announced that he won’t perform his contractual obligation; hence he has the right to terminate and sue for damages in expectation of a breach

Question 47

Hoenig v Isaacs:

Answer 47

substantial performance; Isaac was not obliged to pay full price, but only entitled to deduct the actual cost of damages; substantial performance by Hoenig means no right to terminate by Isaacs

Question 48

Hole v Hocking:

Answer 48

liability for physical harm; acceleration of harm; Hole was entitled to damages for harm that he would have not suffered without the driver’s negligence; Hocking is not found responsible for the haemorrhage that would have happened anyway, but still liable for damages due to acceleration of the harm & the extent to which it became more severe

Question 49

Imbree v McNeilly:

Answer 49

breach of duty of care; contributory negligence; An inexperienced driver owes the same standard of care as any other person driving a motor vehicle – to take reasonable care to avoid injury to others; however, the court found that Imbree had contributed to his injuries by his own negligence, to a significant extent (contributory negligence), responsibility for the harm was apportioned between both parties (70:30)

Question 50

JC Williamson Ltd v Lukey:

Answer 50

specific performance would not be ordered in these circumstances; enforcing Lukey’s exclusive right to sell sweets in the theatre would have required constant court supervision

Question 51

Johnson v Buttress:

Answer 51

general undue influence; Buttress was an old man who was dependent on Johnson with his affairs, when Buttress wanted to make a will in her favour, Johnson brought him to her own solicitor; in these circumstances, the transfer of house set in the new will was voidable under grounds of undue influence; Johnson should have brought Buttress to an independent solicitor to show that his decision is independent

Question 52

Koompahtoo .. v Sanpine Pty Ltd:

Answer 52

breach of innominate terms; Termination of joint venture by Koompahtoo justified because consequences of breaches went to root of contract; right to terminate arose from seriousness of breach’s effects; in this case depriving the council’s right of supervision

Question 53

Koufos v Czarnikow Ltd:

Answer 53

immediate loss; Czarnikow can claim damages from Koufous for the loss caused by the drop in price of sugar due to deviations of ship route; direct loss was foreseeable as loss flowing from the breach

Question 54

Leaf v International Galleries:

Answer 54

objective unconditional agreement; mistake; even if both parties have mistaken the painting as a work of John Constable, subject matter of the case merely stated the ‘painting of Salisbury Cathedral’; contract isn’t void as the error isn’t pertinent to contract matter.

Question 55

L'Estrange v Graucob:

Answer 55

assent to express terms in signed document; L’Estrange was bound to contract she signed, even though she didn’t read it.

Question 56

Lindner v Murdock's Garage:

Answer 56

illegal contracts; restraint of trade; restrain clause was held to not be reasonable (unenforceable) by preventing Lindner to work in two towns, whereas he had only worked in one

Question 57

Lintrose Nominees Pty Ltd v King:

Answer 57

duties of agent; good faith; court decided that King was entitled to avoid contract of sale with Lintrose due to breach by John Hopkins, King’s and Lintrose’s agent, of the duty to avoid undisclosed conflict of interest; agent can’t honestly serve two principals;

Question 58

Lumley v Wagner:

Answer 58

injunction to stop Wagner singing elsewhere for that period; injunction wouldn’t indirectly force Wagner to sing in Lumley’s Theatre

Question 59

Maritime National Fish Ltd v Ocean Trawlers:

Answer 59

MNF was not entitled to rely on frustration of contract as it was their own decision that had brought the circumstances in which they are not able to fulfil contract with OT

Question 60

Masters v Cameron:

Answer 60

conditional intention; intention to be bound; Cameron clearly had intended not to be bound by contract until a formal one was prepared; hence has not breached it; contract with conditional agreement

Question 61

McRae v Commonwealth Disposals Commission:

Answer 61

damages for wasted expenses; bilateral mistake; McRae was entitled to claim the expenses that had been incurred to find the non-existent tanker, in addition to price paid for tanker; contract not void ab initio since error is Comm’s fault

Question 62

McWilliam's Wines v McDonalds:

Answer 62

misleading conduct; court decided that McWilliams’ conduct wasn’t likely to mislead/confuse consumers; advertisement by McWilliams did not in any way suggest his product (wine cask) was related to McDonald’s; if anyone did make a mistake suggested by McDonalds, it wouldn’t be because of McWilliams’ fault

Question 63

Merritt v Merritt:

Answer 63

intention to bound; exception to Cohen v Cohen, agreements made by spouses no longer in amity is legally enforceable

Question 64

Moorhead v Brennan:

Answer 64

OBT success; implied ad hoc that Brennan would not obstruct opportunities for Moorhead to obtain royalties from book sale

Question 65

Musumeci v Winadell:

Answer 65

practical benefit or detriment as consideration; promise to reduce rent was properly supported by consideration that Winadell receives “the practical benefit” of not having to sue Musumeci & hence legally binding, even if he hasn’t offered something new in value; overrides Stylk v Myrick

Question 66

North Ocean Shipping v Hyundai Construction

Answer 66

economic threats; NOS agreed to pay higher price (due to devaluation of US$) for tanker due to economic threats from HC (NOS need tanker to perform other contract), contract’s voidable (but NOS had delayed unreasonably and unable to reclaim money)

Question 67

Oscar Chess Ltd v Williams:

Answer 67

representations and terms; statement regarding car’s age is considered to be a mere representation rather than a contractual promise cause dealer had expertise in cars while Williams do not; when circumstances in which the statement is made can’t be justified in treating it as a promise, it’s called a ‘representation’, which isn’t legally binding

Question 68

Partridge v Crittenden:

Answer 68

advertisement not an offer; the ads put on by Partridge does not amount to an enforced offer, but rather an invitation to enter negotiation & offer something in value (money), which may be rejected

Question 69

Perre v Apand Pty Ltd:

Answer 69

tort; duty of care in cases of purely economic harm; Apand owe Perre a duty of care; factors in the court decision includes that Perre belonged to a limited class of person who suffered harm (nearby potato farmers), he was dependent solely on Apand acting responsibly (Perre couldn’t protect himself from harm), and finally Apand was aware of the risk of the disease and of Perre’s vulnerability as a potato farmer

Question 70

Perri v Coolangatta:

Answer 70

1. Contract formation: Perri was in breach of contract, as conditional term agreed upon is in regards on performance of contract rather than the formation itself; contract’s enforceable even if the agreement hadn’t been met 2. When no time is laid down for a condition to be fulfilled, it must be completed within a reasonable time; hence Cl is valid to terminate the contract due to Perri’s failure to sell his property

Question 71

Phillips v Ellinson Brothers Pty Ltd:

Answer 71

performance of divisible contracts; Phillips wasn’t entitled to claim payment under contract, as it is not divisible but rather a single, indivisible contract; payment promised after work done for set amount of time (two years) rather than at a regular time interval

Question 72

Placer Development v Commonwealth:

Answer 72

Illusory promises are not legally enforceable; when details of a promise are left at the discretion of the promisor (in this case Cth hadn’t promised subsidy but gave it on discretion)

Question 73

Price v Easton:

Answer 73

privity; one who’s not party to a contract doesn’t acquire legally enforceable rights, even if performance of contract benefit 3rd party; builder owe money to Price, do job for Easton; Easton don’t pay Price;

Question 74

Radford v de Froberville:

Answer 74

objective of damages; Radford entitled to claim damages equal to cost of building wall, rather than the price property difference because of the wall; if contract performed as agreed, wall would have been built; Objective of an award damages is to put the non-defaulting party in the position had the breach not occurred or contract performed

Question 75

Raffles v Wichelhaus:

Answer 75

mutual mistake; there are two ships named Peerless; When contracting, Raffles had one ship in mind, while Wichelhaus the other; court decided no contract existed (void ab initio) cause objectively the parties hadn’t reached an agreement on which ship to use in the contract.

Question 76

Rogers v Whitaker:

Answer 76

breach duty of care; Rogers, an eye surgeon, has the duty to his patients to warn them of risks involved in treatment, of which he failed

Question 77

Secured Income Real Estate v St Martins Investments

Answer 77

universal term; there was implied term to cooperate, but SMI had not breached the term; SMI had not acted ‘capriciously/arbitrarily’ by refusing SI’s lease based on their merits as tenant

Question 78

Shaddock & Assoc. v Parramatta City:

Answer 78

tort; liability for causing economic harm; court decided no duty of care arose from the advice given over telephone (informal); however, advice given in written information is and the council is liable for the loss (land taken away for road widening proposals)

Question 79

Steele v Tardiani:

Answer 79

partial performance; Tardiani had not performed contract substantially, but entitled to payment for value of work done (not agreed price) because Steele had known of the incomplete performance and chose not to exercise his right to insist on complete performance

Question 80

Stylk v Myrick:

Answer 80

insufficiency of past consideration; crew had given nothing of new value in exchange to the captain’s promise of extra pay, hence no binding contract for the extra pay was created; crew’s work was considered as ‘past consideration’ as it is already previously given for another reason

Question 81

Tabcorp Holdings v Bowen Investments:

Answer 81

objective of damages; measure of damages was the cost of restoring foyer to original physical state as Bowen claimed, not necessarily financial state; principle same as Radford v

Question 82

Taylor v Johnson:

Answer 82

vitiating circumstances; unilateral mistake; equitable principle dictates that if 1. a party is mistaken, and 2. 2nd party was aware & 3. deliberately ensure it was unknown to the 1st party, contract is void

Question 83

Thomas v Thomas:

Answer 83

token consideration sufficient; agreement is legally enforceable if each party gives valuable consideration for what they’re getting. Considerations do not have to be equal in value but have to be of some value; Ms Thomas was entitled to rent Mr Thomas property for an annual fee of £1.

Question 84

Van den Esschert v Chappell:

Answer 84

Chappell assured by Esschert house was free from white ants, it’s not; He is found in breach of contract (half oral and written); parole evidence applied as this term was of importance

Question 85

Varley v Whipp:

Answer 85

non-performance; Varley had not delivered what had been promised to Whipp (truck essentially different from what’s agreed) – breach of condition implied by law (Goods Act – obligation to deliver goods as identified)

Question 86

Waverley Council v Ferreira:

Answer 86

breach of a duty of care; statutory criteria; under both common law and Civil Liability Act 2002 (NSW), a defendant must do what a reasonable person in the position of the defendant would do to prevent foreseeable harm (content of duty of care owed by the council to Ferreira); Council failed to provide necessary standard of care to prevent the accident that lead to Martin Ferreira’s death from falling

Question 87

Woolcock St. Invest. v CDG Pty Ltd:

Answer 87

duty of care - economic harm; CDG doesn’t owe a duty of care to Woolcock (purchaser of the building); court find that Woolcock isn’t entirely dependent on CDG acting responsibly (not vulnerable), as they could have hired their own engineers to test site before buying it.

Question 88

Yorke v Lucas:

Answer 88

vitiating circumstances; misleading conduct; liability of agent; Treasureway & Lucas were liable for breach of s52 of TPA (or s18 of ACL) - misleading conduct; though Lucas was only passing along the untrue information from Treasureway; no intention is required to be liable for M.C.