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Construction Law > Davors Deck > Flashcards

Davors Deck Flashcards

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1
Q

What can common law be made by?

A

Parliament, and Judges

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2
Q

What is common law?

A

Law system influenced by England.

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3
Q

What is civil law?

A

A system which relies on statutory rules, often in a code.

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4
Q

What legal system does Australia have?

A

Common Law

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5
Q

When was Australi’s legal system established and what was it?

A

1788 - British declared Terra Nullius - ‘Empty Land’.

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6
Q

What six Australian colonies federated and when?

A

NSW, VIC, QLD, WA, SA, TAS - 1st January 1901.

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7
Q

What is the Australian Constitution?

A

Constitution which allowed Australia to make and apply law in Australia in 1900.

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8
Q

What did the Australian Constitution establish?

A

Framework for national governance, federal parliament and government, six state governments, power to make state-only laws.

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9
Q

What does the high court do?

A

Interprets constituion, decides meaning, settles disputes between federal and state governments.

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10
Q

Which law prevails in conflicts between state and federal levels?

A

Federal level.

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11
Q

What three groups is in the separation of power?

A

Parliament, Executive, Judiciary

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12
Q

In separation of powers, what does parliament do?

A

Parliament makes and amends written law (Senate/House of Reps).

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13
Q

In separation of powers, what do executives do?

A

Executive (government depts.) puts written law into action.

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14
Q

In separation of powers, what does the judiciary do?

A

Judiciary (Judges/High court) interprets and makes judgements about written and unwritten law.

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15
Q

What levels of local government apply to which states?

A

“QLD, NSW, VIC, SA, WA, TAS - City or Regional.

ACT, NT - Regional Council Only(NT), ACT (No regional).”

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16
Q

What is the constitution act and when was it made?

A

In 1987, the consitution act (QLD) was made to provide framework for state governance.

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17
Q

What defines a territory in legal terms?

A

Land which does not belong to any state.

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18
Q

Who handles law in territories?

A

Federal parliament has power to make laws for government of territories, territories have limited right of self government.

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19
Q

What comprises written law?

A

Constituion, Acts of Parliament and Delegated Legislation.

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20
Q

What comprises unwritten law?

A

Case Law (Common Law, and Equity).

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21
Q

What is written law?

A

Law made by Parliament in the form of acts of parliament (acts, statutes, primary legislation)

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22
Q

What are examples of subordinate/delegated legislation?

A

Acts (instrument which delegates power), Regulations(technical act detail) and By-Laws.

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23
Q

How is inconsistency managed in written law?

A

Harmonisation of 9 parliaments with Council of Australian Governments (COAG) and when states surrender lawmaking power.

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24
Q

What is Unwritten Law?

A

Case law or judge-made law which is made by judges in courts when handing down decisions.

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25
Q

What is the hierachy of state/territory courts?

A

Local/Magistrate, District/Country, Supreme, Supreme Court of Appeal - High Court

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26
Q

What is the hierachy of federal courts?

A

Federal Circuit Court of AUS, Family/Federal Court of AUS, Family Court of Australia Court of Appeal - High Court

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27
Q

What is the doctrine of precedent?

A

Doctrine/binding precedent - which binds courts to follow previous decisions of other judges in cases of similar facts.

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28
Q

Does the high court need to follow doctrine of precedent?

A

No they are not bound to follow its own decisions, but generally will for consistency unless convinced of error in previous decision.

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29
Q

What is ratio decendi?

A

Legal reasons supporting decisions which are binding.

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30
Q

What is obiter dicta?

A

Judge’s expression of opinion is not binding on future cases.

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31
Q

How is doctrine of precedent approached from cases in other jurisdictions?

A

Cases may be persuasive, but not binding in other common law countries or other states.

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32
Q

What is common law?

A

Legal system using wirtten and unwritten law. Concerned with rules.

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33
Q

What is equity case law?

A

Law concerned with behaviour which includes additional remedies such as specific performance, injunctions, equitable rescission of contract.

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34
Q

What is the difference between criminal law and civil law?

A

Criminal - objective to punish persons guilty, montery fines, prison or service, breaches of work health and safety act. Objective for compensation for loss or domage due to wrongful conduct.

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35
Q

What is a contract?

A

An agreement which is enforceable, i.e. which the law will enforce.

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36
Q

Which contracts must be in writing?

A

Sale of Land, Building Contracts

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37
Q

What must be proven to sue in a breach of contract?

A

Existence of Contract, Breach of Terms, Loss or Harm

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38
Q

What four elements are required for an enforceable contract?

A

Offer, Acceptance, Consideration, Intention

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39
Q

What additional elements are required for an enforceable contract?

A

Capacity (Able), Meeting of Minds (Understanding)

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40
Q

What is an offer?

A

An indication made by one person (the offeror), to another (the offeree) of the offerer’s willingness to enter into a contract on certain terms.

41
Q

When will a offer lapse?

A

Passing of Time, Death, Failure of Condition Precedent

42
Q

What is acceptance?

A

Communication by the offeree of their unqualified intent to be bound by the precise terms of the offer.

43
Q

What is consideration?

A

Some act of forberance of one party, being the price for which the promise of the other is bought.

44
Q

What is executory and executed?

A

Executory - (Future), Executed (Present) Consideration

45
Q

What are the rules for consideration?

A

Must be legal, real value, non-past, direct enforcement, existing duty is no consideration.

46
Q

What is objective testing?

A

Applying what a reasonable person would think in a given scenario.

47
Q

What is the social/domestic arrangement assumption?

A

Presumption that parties did not intend to make a contract unless evidence states otherwise.

48
Q

What is the commercial arrangement assumption?

A

Presumption that parties did intend to make a contract unless evidence states otherwise.

49
Q

Are letters of intent/interest binding in an offer?

A

Generally not binding but depends on terms.

50
Q

In the meeting of minds, how are meanings interpreted by the court?

A

Court is not concerned with parties interpretations, and will enforce meanings if objective can be given meaning.

51
Q

What comprises the content of a contract?

A

Express terms, and Implied terms.

52
Q

What are express terms in a contract?

A

Conditions and Warranties which are important and essential terms.

53
Q

What are implied terms in a contract?

A

Terms which are inmplied based on past dealings, trade usage/customs, consumer vulnerabilties.

54
Q

What terms of contract are implied by common law?

A

Consumer/Product assurance, duty to cooperate, duty to act in good faith, duty to provide quality services etc.

55
Q

When is consideration not required?

A

Bank guarantees, performance bonds, confidentiality deeds, deed of indemnity etc.

56
Q

When can contract terms be changed?

A

When both parties agree or when provisions and processes in the contract are provided.

57
Q

What is the Sale of Goods Act (Qld)?

A

Established in 1986; business-business, business-consumer contracts for supply of goods.

58
Q

What are the implied terms for goods in the Sale of the Goods act?

A

Seller has right to sell goods, description must match goods, merchantable quality, fit for specific purpose, sample must match goods.

59
Q

What are the implied terms for goods in the Australian Consumer Law?

A

Established in 2010; seller has right to sell goods, description must match goods, merchantable quality, fit for specific purpose, sample must match goods.

60
Q

What are the implied terms for services in the Australian Consumer Law?

A

Rendered with due car and skill, services will be reasonably fit, services will be supplied within reasonable time unless specified otherwise.

61
Q

Can terms be excluded under Australian Consumer Law?

A

No.

62
Q

Under the Australian Consumer Law, what is a consumer?

A

Amount = >$40,000 (services or goods), personal/domestic/household consumption, vehicle/trailer on public roads.

63
Q

What scope does the Australian Consumer Law have?

A

Implied terms in consumer contractors for supply of goods or services, misleading/desceptive conduct, unconsiconable conduct, unfair terms.

64
Q

When can contracts be vitiated?

A

When formed under duress/mistake, entered due to misleading/deceptive/unconscionable conduct by other, where terms deemed unfair by ACL.

65
Q

What is contract voidability?

A

Court recognises formation, falidity and binding effect of contract, but consicders one party not bound - provides window of opportunity to avoid contract.

66
Q

What is a contract formed on basis of duress?

A

One party enters into contract as result of coercion so great it prevented exercise of free will

67
Q

What is a contract formed on basis of mistake?

A

Where one or both parties enters into contract on basis of mistake.

68
Q

Three types of mistakes at common law?

A

Common mistake, mutual mistake, unilateral mistake.

69
Q

What is a common mistake?

A

Both parties make a mistake about the same thing.

70
Q

What is a mutual mistake?

A

Parties have a differing understanding about a fundamental aspect of the contract. (Both mistaken, not the same mistake). “December/October boat”

71
Q

What is a unilateral mistake?

A

One party enters into contract under mistaken belief as to fundamental aspect of contract. (One person mistake, bad if other party knows).

72
Q

What is unconscionable conduct?

A

Unfair advantage on vulnerability.

73
Q

What is discharge of a contract?

A

When a contract comes to an end.

74
Q

How can a contract be discharged?

A

Performance, Agreeement, Frustration, Breach or Repudiation

75
Q

When can a party terminate a contract in common law?

A

Breach of condition, breach of non-essential term which deprives innocent party, repudiation of the contract.

76
Q

What is repudiation of a contract?

A

Repudation of a contract is when a party indicates through actions or words an unwillingness or inability to substantially perform the contract.

77
Q

What damages can be claimed in breach of contract?

A

Expectation loss, reliance loss, personal injuries, disappointment and distress.

78
Q

What tests are applied in awarding damages?

A

Causation (loss caused by breach), mitigation (tried to mitigate loss), remoteness

79
Q

What is negligence?

A

Conduct (or a failure to act) that breaches a duty to take care.

80
Q

What are torts?

A

A tort is a civil wrong committed by one person which detrimentally affects another.

81
Q

What are the categories of tort?

A

Negligence, Tresspass, Nuisance, Defamation, Deceit.

82
Q

What 3 elements must be proved for a negligence case?

A

Duty of care, breach, damages.

83
Q

How is a duty of care proven?

A

Neighbor test, proximity test.

84
Q

What is an inherent risk?

A

Risk which cannot be avoided by exercise of reasonable care.

85
Q

What damages can be awarded in negligence cases?

A

Medical/hopsital, loss of earnings, loss of amenity, pain and suffering.

86
Q

When is the defendant not liable in negligence?

A

Plaintiff aware of risk and danger - accepted risk.

87
Q

What is trespass to land?

A

Direct interference with land under the possession of another person without lawful authority.

88
Q

What is required to success in tort for tresspass to land?

A

Proof of direct interference, no damages required.

89
Q

What is the remedy for tresspass to land?

A

Mandatory injunction to stop defendant from trespassing.

90
Q

What is required to claim damages for tresspass to land?

A

Trespass has denied plaintiff’s use (lost rent) of land OR caused physical damage to land (fixing costs).

91
Q

What is the justification for trespassing?

A

Legal right to enter land or necessary entry to avert disaster.

92
Q

What is trespass into airspace?

A

Direct interference above land which is necessary for owners ordinary use and enjoyment of the land. i.e. cranes, building encroachment.

93
Q

What is public nuisance?

A

Unreasonable, unwarranted or unlawful inteference with a right common to the general public. Annoyance to the public at large.

94
Q

What is public nuisane actionable in tort?

A

Usually crime punishable by state, when special damage over and above the damage of others has occurred.

95
Q

What is private nuisance?

A

Unreasonable, unwarranted or unlawful inteference with a person’s private use and enjoyment of his or her property.

96
Q

What is required to bring action to tort of private nuisance?

A

Have interest in land affected, proof of defendant damage, substantial impact on plaintiffs use and enjoyment of land.

97
Q

What are forms of construction site nuisance?

A

Noise, dust, water pollution, vibrations, obstruction of highways - usually public nuisance.

98
Q

What are the 3 parts of the planning act planning system?

A

State and local planning instruments, development assessment system, dispute resolution processes.

99
Q

What are the parts of chain of responsibility?

A

Product designer, manufacturer, importer, supplier, installer.

Construction Law (3 decks)

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