Incorporation cases

Question 1

Toll v Alphapharm held

Answer 1

• distributor can rely on the exclusion clause
• Reasonable notice of the terms and conditions was provided, as there was a direction to the T&Cs above the signature line.
• Signing the document indicates either that the signer has read and understood the terms or is willing to be bound by them regardless.

Question 1

Toll v Alphapharm facts

Answer 1

• Distribution of a flu vaccine involved a credit application.
• The application indicated that services were subject to conditions stated on the back of the consignment note.
• The conditions were not read by the parties before signing the application.
• Focus on whether the exclusion clause is enforceable despite lack of prior reading.

Question 2

Nalder & Briddle v C & F Fishing facts

Answer 2

• NBL contracted to repair a CFL vessel, with a tender contract limiting liability to $75,000.
• Despite extensive oral negotiations, no formal contract was signed by either party.
• The agreement was ultimately oral, but the defendant signed multiple job cards approving the work described on those cards.

Question 3

Nalder & Briddle v C & F Fishing HELD

Answer 3

• Oral contracts can incorporate written documents, but strong evidence of the terms offered and accepted is necessary.
• Without further reference to the exclusion clause after the oral contract, it cannot be relied upon.
• The relevance of the clause’s nature impacts the degree of notice required.
• Signed documents may be exceptions to the signature rule (L’Estrange), meaning a contract does not bind if the signed document is not clearly part of the contract or if it could not reasonably be expected to contain contractual terms.

Question 4

A-G v Seven Electrical FACTS

Answer 4

• Seven Electrical contracted with the Crown to supply and install an uninterruptible power supply for the National Library’s computer systems.
• A fire occurred three days after installation, causing $1.9 million in damage.
• The Crown sued Seven for breach of contract.
• Despite previous dealings, updates to the terms and conditions were not sent to the Crown.

Question 5

A-G v Seven Electrical HELD

Answer 5

• Reasonable notice was given
• Suppliers commonly exclude liability for loss.
• Reasonable notice was met due to:
• Previous dealings.
• Clear direction to terms on the reverse side.
• Clauses can be incorporated through prior dealings if they:
• Match previous terms.
• Align with established practices.
  Reasonable notice is required, even for non-onerous clauses.