Professional Documents
Culture Documents
Remedies - Full Course Notes
Remedies - Full Course Notes
Remedies - Full Course Notes
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
Pls
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
Ds
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
Ds
breach
of
contract.
Single
cause:
but
for:
but
for
the
defendants
wrong
would
the
P
had
suffered
the
loss
or
damage
complained
of?
(Reg
Glass
v
Rivers
Locking
System)
REG
GLASS
v
RIVERS
LOCKING
SYSTEMS
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
Apportionment?
In
Astley:
HC
held
that
he
apportionment
legislation
did
not
allow
for
a
reduction
in
damages
in
any
contract
case.
MONARCH
STEAMSHIP
V
KARLSHAMNS
OLIEFABRIKER
No
novus
actus.
They
knew
of
the
risk
of
war.
It
was
reasonably
foreseeable
ALEXANDER
V
CAMBRIDGE
CREDIT
CORP
-
Auditors
blamed
government-
bad
economic
policies
economic
policies
affected
the
company,
not
their
failure
to
perform
their
duty
HELD:
Cant
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
auditors
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
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 would not know that a failure to return would cause the loss in production that the plaintiff suffered
For
others,
you
to
need
to
show
that
at
the
time
they
agreed,
the
additional
losses
were
in
the
contemplation
of
the
parties
Boiler arrived 20 weeks late. Vic laundry didnt 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
wouldnt
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.
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.
H
PARSON
(LIVESTOCK)
V
UTTERLEY
INGHAM
Farmed pigs.
Contracted with Uttley Ingham for machinery (hopper) to store pig nuts.
Hopper
was
negligently
installed
didnt
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
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
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
:
NB:
What is reasonable?
London underground threw them out and bought new ones which worked.
But
now
they
put
themselves
in
a
better
position,
so
there
was
not
an
offset.
Couldnt
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.
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
HELD
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
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
Employee
had
no
duty
to
mitigate.
Couldnt
say
that
he
should
have
taken
the
other
job.
WHITE
&
CARTER
V
MCGREGOR
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
dont
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
didnt
want
it.
Owners
affirmed
by
fixing
it
and
not
renting
it
someone
else
HELD
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
theres
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:
Ship sank
Mental distress flowed form what the K was actually for. The object of the K was enjoyment.
Generally no compensation for lack of enjoyment but that is exactly what they contracted for.
He got the bed etc but not the pleasure. awarded damages.
HEYWOOD
V
WELLERS
Ps
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
solicitors
firm
dealt
with
it.
Didnt
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
Allowed
a
reduction.
Compensated
for
the
fact
that
youll
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
didnt
say
the
airport
would
be
too
loud.
HELD
Expectation
losses
Purpose:
put
in
position
Pl
would
have
been
had
the
contract
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
Ps
actual
costs
or
wasted
expenditure
as
a
result
of
relying
on
the
Ds
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
(wouldnt
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
had
K
with
Cth
to
salvage
wreck
of
ship.
They
money
to
Cth
(making
the
wreck
theirs.)
There
was
no
wreck.
HELD
Too
difficult
to
award
expectation
losses-
didnt
know
how
much
the
wreck
would
have
been
worth
o
impossible
to
value
a
non-existent
thing
COMMONWEALTH
V
AMANN
AVIATION
expectation
losses
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 did not get any income of out of this. They wanted to claim their losses.
In the first couple of years, they couldnt make a profit. Would only make it if it was renewed.
PRESUMPTION
in
CORPS
LAW:
If
P
proves
that
theyve
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
Restitution damages
Indemnity damages
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.
Q: whether Hungry Jacks had suffered a loss by not being able to franchise
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
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
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
Interest
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
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
[Ps]
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
Ds
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
unrable
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).
Capped
by
CLA
s
59
Griffiths
v
Kerkemeyer
o Services
provided
free
of
charge.
If
P
was
not
compensated,
the
D
gets
benefit
from
familys
good
nature.
o underlying principle that it is a plaintiffs accidentcaused need which is
compensated
Damages calculated at market rate ie not the lost earning capacity of the carer its 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 persons 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 persons 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 childwould 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
recipients 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.
(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
daughters
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-
theyd
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
Couldnt
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
(OBrien
v
Dunsdon)
o Capped
under
CLA
s
61
and
s
62
o
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
Defs
conduct
to
have
been
high-handed,
insolent,
vindictive
or
malicious,
cruel,
or
showing
a
contumelious
disregard
for
the
Pls
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
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
whoever
tripped
the
wire
would
be
shot
by
pellets
(it
wouldnt
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.
Cant
inflict
more
harm
that
what
would
be
a
legal
remedy.
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
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
didnt.
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.
o
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
cant
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
didnt
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.
rd
o 3
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
o
[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
rd
Agreements
to
pay
money
to
3
parties
(privity
doctrine)
Coulls
v
Bagots
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
didnt
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
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
its
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
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
o
o
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
wasnt
allowed
to
get
married
etc.
He
had
hardly
any
obligations
o SP
wouldnt
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
Lumleys
theatre
+
she
was
spiteful,
she
would
sing
poorly.
o SP
not
possible
here.
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:
Ds
obligation:
grant
sub
lessee
to
price
Prices
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
he
thought
he
was
getting
sub-lease.
Created
an
equity
against
her.
It
wasnt
his
fault
that
he
didnt
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
couldnt
see
the
quarry
from
the
house.
Value
of
farm
unaffected
by
quarry.
No
real
benefit
to
having
it
filled
up.
If
claimed
in
damages,
wouldnt
get
much.
Court
saw
it
as
a
bargaining
chip.
Green v Somerville
Only
conduct
that
relates
directly
to
the
equity
(equitable
remedy)
sought
Examples:
Fraud
Undue
influence
by
the
P
Not unmeritorious
[6] Futility:
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:
Lamshed v Lamshed
Fitzgerald v Masters
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
Im
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
wasnt
a
surprise
later.
The
buyer
didnt
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)
[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
Antecedent
K
unnecessary
Previously
it
was
necessary
to
show
an
antecedent
(often
oral)
contract
but
approach
now
more
liberal.
Jocelyn
v
Nissen
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
its
available
and
the
parties
prefer
it,
the
court
wont
grant
rectification.
NB:
just
because
a
party
didnt
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
persons
benefit.
Louise
does
something
different
with
the
money.
Here,
theres
no
contract,
its
not
a
tort,
no
statutory
breach
buuut
its
a
breach
of
a
fiduciary
duty
Exclusive
jurisdiction
[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
Torts
Building
buildings
which
would
cut
out
the
light
when
they
were
completed
Ie.
A
right
to
light
case
but
the
buildings
were
under
construction
cant
claim
in
CL
because
Can
claim
in
equity.
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 pressure eg holding gun to your head
Undue influence overbearing manner to persuade someone
Unconscionable dealing letting 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 rescissionvitiating 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 didnt 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] doesnt 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 havent 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 doesnt 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 didnt 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 Krugers 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
OSullivan 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 couldnt have his cake
and eat it too ie wouldnt 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 cant become a party to the loan transaction and
he didnt disclose it.
o HELD:
Entitled to rescind.
Loan couldnt 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 theres 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 theres 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 Ps knowledge and used if or the next 3 years.
Tort: trespass to property
No loss to P 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- its exclusive use
Awarded 10 pounds a week
D detained and used for its own purposes the Ps 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.
2.
3.
4.
5.
6.
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
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 Defs knowing infringement of Ps 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.
TPA
[ELE 1]: Does TPA apply?
[x] is a corporation.
REMEDY: s 82(1)
[1] Loss or damage
eg. loss of money/lawnmower didnt work
any monetary, physical, economic loss (wider than tort), personal injury or
death
Must show worse off
Marks v GIO Aus Holdings:
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 Ps gross negligence can sever the link between contravention and the Ps 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 theres an intervening cause sufficient if Ds 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
S 82
Creates both a right and a remedy
Damage is the gist of the action
Gives a right to complete recovery of loss or
damage
Does not have the ability to reduce or prevent
likely loss
s 87
All remedies are discretionary but discretion is
wide with remedies not available under CL or
Equity
Order can be made for loss suffered but also loss
likely suffered
Relief may be given to only compensate for part
of the loss or damage
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
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