Cases BLAW10001 Flashcards
ABC v Australasian Performing
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
ACCC v TPG Internet:
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)
Alcatel Australia v Scarcella:
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
Allcard v Skinner:
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
Associated Newspapers Ltd v Bancks:
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.
Aust. & NZ Bank Ltd v Ateliers de Constructions:
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)
Australian Knitting Mills Ltd v Grant:
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)
Baldry v Marshall:
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
Balfour v Balfour & Cohen v Cohen:
intention to bound; agreement between married couples are not meant to be legally enforceable
Baltic Shipping Co v Dillon:
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
Barton v Armstrong:
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
Bertram, Armstrong & Co v Godfray:
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
BP Refinery v Hastings Shire
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
Brinkibon Ltd v Sthal…
acceptance by fax/telex was effective when and where the acceptance was received
Buckenara v Hawthorn Football:
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
Burger King v Hungry Jack’s:
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)
Burns v MAN Automotive (Aust) Pty Ltd:
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);
Butcher v Lachlan Elder Realty:
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
Carlill v Carbolic Smoke:
- promise to pay award intended to be binding as Carbolic expressly stated they had deposited 1000£,
- The act of buying and using by Carlill => performed in expectation of a known promise, constitutes executed consideration => promise enforceable.
- Offer’s made to people who used productàCarlill is legally capable to accept the offer
- Acceptance of an offer can take place by conduct (e.g. Perform required acts by offeror)
Causer v Browne:
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.
Cehave NV v Bremer HandeL..:
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
Codelfa Cons. v State Rail of NSW:
- OBT failed; noise law never considered ad hoc; must be inferred from agreed term, not external ones;
- 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
Ermogenous v Greek Orthodox:
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
Commenwealth Bank of Aus. v Amadio:
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
Concrete Construct. v Nelson:
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
Connor v Stainton:
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)
Coulls v Bagot’s Executor:
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
David Jones v Willis:
terms implied by legislation; broken shoes wasn’t of merchantable quality; it hasn’t fulfilled the purpose such goods are used for
Donoghue v Stevenson:
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
Donoghue v Stevenson:
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
Dougan v Ley:
Ley entitled to specific performance (taxi + operating license); the object in question is unobtainable elsewhere, hence damages cannot provide adequate remedy in these circumstances
Esso Petrol v Comm. of Customs
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.
Expo Aluminium (NSW) Pty Ltd v Pateman Pty Ltd:
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
Fitzgerald v FJ Leonhardt:
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
Freeman & Lockyer v Buckhurst Park:
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
