Professional Documents
Culture Documents
TABL1710 Study Notes
TABL1710 Study Notes
Harvey v Facey
Rules in relation to 1. strictly in response to SMA (suck my
acceptance the offer ass-ceptance)
2. must be communicated
3. unqualified, absolute,
unconditional
Intention: - Social:
Relationship of the o relationships made
parties between friends or
acquaintances
- Domestic:
o relationships
between family
members and
relatives
- Voluntary: parties
volunteer their services
Intention: domestic < use Cohen v Cohen
agreements textbook
Wakeling v
Ripley
Kleinwort
Benson Ltd v
Malaysian
Mining
Corporation Bhd
LEstrange v
Graucoub
Collateral contract:
manufacturers contractual
promise to retailer
Subject to incapacity
- Minors
- Mentally ill
- Intoxicated
- Corporations /
companies
Consent There must be a genuine
agreement between the
parties to a contract as to its
nature and scope
Proper form Consider are there any
statutory procedural
requirements that need to be
satisfied
Innocent - Misstatement of a
misrepresentations matter of fact
- lack of intentional
deceit
- not known to be fault
- rescission
Misrepresentation S18: misleading or
and legislation deceptive conduct
Generally will be
unenforceable unless the
restraint is reasonable
Reasonable - Geographic extent
restraint of trade - Time period
involved
- Nature of the
business and the
activity being
restrained
- Whether the restraint
is reasonable, both in
the interests of the
parties and the
public
Valid A contract which the law
Enforceability will enforce
Equity
- Rescission
- Restitution
- Ratification
- Specific
performance
- injunctions
Common law Total breach: Performance: Re
termination of - where one of the Moore & Co Ltd
contract parties does not and Landauer & Co
perform the contract
at all Frustration:
Codelfa
Constructions Pty
Ltd v State Rail
Authority
Partial breach: - where one of the
parties does not
perform the full
requirements of the
contract
By performance: - contract usually ends
when each party has
performed its
contractual
obligations
o obligations
under a
contract must
be performed
exactly
o near enough
is not good
enough
By agreement - contractual
obligations can be
discharged by
agreement between
the parties
If an additional factor
unconnected with the
defendants breach breaks
the casual chain
Cancellation by right
Court order setting aside
contract, to restore parties to
pre-contractual position
Misleading or Elements
deceptive conduct: - Conduct by a person
s18 ELEMENTS - In the activity of
supplying goods or
services in trade or
commerce
- Who has engaged in
misleading or deceptive
conduct or conduct that
is likely to mislead or
deceive
1b no false representations
regarding services
1g about performance
characteristics, accessories use
or benefits of goods or services
1h regarding sponsorship
approval or affiliation
Unfair practices: a person prohibited from
Bait advertising advertising of goods or services
S35: at a special price where it does
not intent to offer those goods or
services for a reasonable period
in a reasonable amount
- s80: injunctions
- s81: divestiture
- s82: damages
- punitive and non-
punitive orders
Lecture 9:
Competition law
Rule Acronym Case
Competition - cartel offences
laws: types of - anti-competitive
conduct agreements
- misuse of market power
- exclusive dealing
- resale price maintenance
- mergers
The tests - competition test
o what is the effect or
likely effect on
competition in a
market?
- per se test
o speeding offence
Melway
Publishing Pty Ltd
v Robert Hicks
did not take
advantage of
market
segmentation
Grant v Australian
Knitting Mills
underwear with
chemicals,
manufacturer at
fault
Salient features
- Foreseeability of
harm
- Degree of control
able to be exercised
by patient
- Vulnerability of
plaintiff from
defendants conduct
- Reliance by the
plaintiff upon
defendant
- Any assumption of
responsibility by the
defendant
- Proximity of
nearness in a
physical, temporal or
relational sense of
the plaintiff to the
defendant
- Any potential
indeterminacy of
liability
- Existence of
conflicting duties
arising from other
principles of law or
statute
Negligence has to be a
necessary of the occurrence
of the harm
4. remotenes - the defendant is not S5d1b a
s always liability for determination that
all the damage negligence cause
- only foreseeable particular harm
damage is comproses the
recoverable following elements
- damages cannot be - factual
too remote, causation
sometimes referred - that it is
to as legal or appropriate
attributive causation for the
- one based on scope of the
common sense negligent
- need connection persons
between breach and liability to
duty of damage extent the
o was the harm so
damage the caused
cause of the
breach
o was the
damage such
a kind that a
reasonable
person would
have foresee
- the test for
remoteness is
reasonable
foreseeability
No liability for:
- inherent risk
(something that
cannot be avoided)
- obvious risks of
dangerous
recreational activity
- recreational activity
where warning was
given
Other exemptions - s57: no lability for a
person who, in good
faith and without
expectation of
payment or reward,
voluntarily assist a
person who is
apparently injured or
at risk injured
- s61: a volunteer does
not incur any
personal liability
when acting in good
faith in community
work, organized a
community
organized or, as an
office holder of ac
community
organization
- plaintiff engaged in
criminal activity
- plaintiff under the
influence of using
drugs
- peer professional
advice
- caps and thresholds
for personal injury
and damages
Consequences of
compliance
- Cost of not
complying
- Adverse publicity
A culture of compliance
should:
- Aim to prevent
identify and
respond to
breaches of laws
- Promote a culture
of compliance
within the
organization and
- Assist the
organization in
remaining and
becoming a good
corporate citizen
Due diligence - Process is a
complete and
comprehensive
effort to
determine what
could happen to
cause a business
venture to go
wrong and the
various negative
effects that could
occur if a venture
does not preform
as planned or
actually fails
- Applies to and
business venture
- Have all
reasonable
inquires been
made
- Did the person
believe on
reasonable
grounds that took
all reasonable
care to avoid a
contravention