Chapter 1 - Australian Legal System

Commercial/Business Law

Statute Law: the body of law enacted by the nine parliaments

Common Law: the busy of unenacted laws that emanate from the
courts at federal, state and territory levels

1) Law is a set of rules or a framework which is designed to

regulate activity and conduct
2) Every country has a set of rules known as their respective legal
system
3) Either belong to a civil legal system or common legal system
(Australia, UK, and Canada)
4) Source of law in Australia:
A)Parliaments: Legalisation or Statute,
- In Australia we have 9 different parliament (1
Commonwealth/Federal & 6 State Parliament & 2
Territorial Parliaments)

5) Common Law Courts can also make laws in Australia through

precedents:
1) Statutory Interpretation
2) New/Novel set of Facts

6) High Count of Australia is the highest country in Australia and

regularly makes new law with their judgments

7) Each parliament (state or federal or territory) can make law by

passing bill

8) A bill is proposed legislation. Both houses of parliaments will

need to pass the bill before it becomes legalisation and before it
becomes a law
 9) A further step after each house has passed the bill is that the
governor general (federal/commonwealth) or the governor ( if
it’s a state bill) approves of the bill (royal assent is given at this
stage). The bill then becomes a legislation/statute and is new
Law

Doctrine of Precedent
10) Courts make laws in 2 ways:
- Precedent and Statutory interpretation
11) Precedent can be either binding or persuasive. If it is a
binding precedent, then that is usually made by a higher court in
the court hierarchy. (E.G: high court of Australia) its decision is
binding on all lower courts

12) Persuasive precedent then it is to be binding but can be

following (E.G Supreme court of VIC Decision is not binding in
the supreme court of QLD, but it can be persuasive)

13) Court making law we need to consider the ratio decidendi

(legal reasoning of the decision). That is the binding part of the
rule of law

Statutory Interpretation

14) Second wat court can make law is through the process of
interpreting legislation.
15) Country can use 3 methods to help interpret an act of
parliament and they include:
- Literal Rule
- Golden Rule
- Mischief Rules

16) Literal Rules: - court will provide an ordinary meaning to

the words and phrase contained in that act of parliament. Courts
can use dictionary meaning to the words/phrases
 17) Golden Rules: is used when the literal rule provides an
inconsistent outcome. Courts will attempt to modify the
phrase/word in the act.
18) Mischief Rules: can also be used by the court to identify
the problems/defect that was trying to remedy or overcome

Chapter 2 – The Australian Constitution

- Australia is a federation, as this federation was created by

the Commonwealth of Australia Act 1990 (UK)

- Australia is a federation which mean that it is a political

and economic union between the states and the
commonwealth

Australia Jurisdictions

- Australia is made of (legal Jurisdiction made up of: 1

commonwealth parliaments/courts, 6 states parliaments
and 2 territories

Power of the Constitution

- There ae 3 power provided by the constitution:
1) Exclusive power of the Commonwealth
2) Concurrent power (shared by the commonwealth and
the states)
3) Residual power, that belong to the states

- Exclusive Powers: - section 90,114,121 and 122

o Section 90 makes laws in relation to customs and
excise.
 o Section 114, (to make laws in relation to defence
naval and military.
o Section 121, (to make laws in relation to creation
of new states)
o Section 122 (to make laws in relation to
governing territories

- Concurrent Powers: Powers that are shared between the

commonwealth and states. Most of these are contained in
the section 51.
o Section 51: (1) Trade and Commerce: (2)
Taxation: (3) bounties: (4) Borrowing money: (5)
Postal, telegraphic, and telephonic (this power
can cover internet and WIFI) (6) Naval and
Military Forces (7) Lighthouse: (8) Astronomy:
(9) Quarantine: (10) Fisheries

- Residual Power: powers that belong to the states and are

not contains in the Australian Constitution.
o E.g.: Criminal law; laws on building and
planning; local councils; roads and traffic; states
property’ state taxes (stamp duty and payroll tax)

SECTION 109
- When a state law is inconsistent with a commonwealth
law, the commonwealth law prevails to the extent that the
state law is inconsistent.
- The State law becomes invalid to the extent that it is
inconsistent with eh commonwealth law
o Good case to refer to the section 109 is the
Tasmanian Dam Case (Pages 79-81 Text.
o Tasmanian Dam case involved a dispute between
a commonwealth law and a state law. The state
law (TAS) allowed the construction of a dam in
an heritage protected Frankin/Gordon Forrest &
 River. The commonwealth law serves to protect
the river and Forrest from the construction of the
dam. The high court decided in favour of the
commonwealth. The commonwealth applied the
section 109 constitution of determine that eh
commonwealth law was valid.

SECION 128 Referendum

- Section 128 provides a mechanism to change the
constitution through a strict process
- Not many referendums have been successful
- The requirement for a referendum includes:
o A majority in the parliament 50% over member
of both houses of parliament must vote
supporting the referendum (majority of voter in
Australia and majority of states)

Separation of Power
- 3 arms of government:
o Legislature/ Parliament
o Executive
o Judiciary
- All 3 Arms of Government ae separate and provide
independence (check and balance each other laws)
- Parliaments (Making laws), Executive (Administer the
laws), Judiciary (applying the laws)
- The commonwealth Constitution can only be amended by
following the stringent procedure set out under
Commonwealth Constitution s128.

Chapter 4 – Introduction to Contract Law

- Contract is an agreement that upon between two to more

parties which is enforceable in a court of law.
Two main types of Contracts:

- Simple Contract: typical contracts made everyday e.g.,

Supermarket, Petrol station, café etc.
o Does not require written contract, but can be
verbal and can even be implied by conduct
- Formal Contract: (e.g. Deed)
o As this differs to a simple contract because a
formal contract is required to comply with
formalities, eg: require written form and signed
by the parties (deed)
o Formalities are required by law, otherwise the
deed/formal contract may not be valid or
enforceable

Sources of Contract

There are two main origin of contract law

- Statute law (parliament made law) also referred as
legislation or even an act of parliament. (in Australia there
are 9 parliament, 1 commonwealth, 6 states parliament
and 2 territorial parliament)
(0) As it requires a bill to be introduced into parliament
(debated, voted upon, passed by both houses of
parliament) Royal assent is provided then the bill
becomes law/statute law.

- Common Law: (is important source/ origin for contract

law) laws made by the courts through the process of

(1) precedent (higher courts make a precedent which is

binding on all of the lower courts e.g. High courts of
Australia will be binding precedent)
(2) Statutory Interpretation: (courts an often are required
to interpret an act of parliament) through that process
courts make law.
The element of Contract

These are the essential elements for every legal contract:

(1) Intention to create legal relation between the parties
(this intention is very important requirement)
(2) Offer - can be made by words, action or in writing
(3) Acceptance - of the offer
(4) Consideration – something of value in exchange of a
promise money in exchange for promise... attribute
some value for it
(5) Certainty - of term (terms cannot be vague or
unclear)
(6) Legal capacity - to contract (both parties must have
legal capacity/ Authority to contract)
(7) Any formal to be complied with (e.g. Deed)

Look at the elements in more details:

Intention to create a legal relation

- This is an important element for every binding legal

contract. The court can make 2 presumptions with this
element
A)Commercial & business transaction the courts make a
presumption that the parties intended to create legal
relations. (Because this usually involves a transfer
money for goods or payment of services)
B) Family, Social or Domestic Agreements. With these
types of agreement, the courts will presume that the
parties did not intend to create legal relations. Hence,
there is no binding legal contract. Generally, these
types of agreement is so not involve money or transfer
of goods or payment
C) Both presumptions can be rebutted by court. If there is
evidence provided by the parties to show that the
 intention was not to create legal relations. Either way,
the court can rebut (not follow or apply the
presumptions) if there is evidence to refute or rebut the
presumption

OFFER

- An offer is a proposal made by one party to the contract.

The offer needs to be clear, certain, firm and
communicated to the other party (Offeree)

- An offer should be distinguished from other non-offers

such as:
A)An invitation to make offer (treat)
B) Advertising (generally not an offer but rather an
invitation to make an offer
C) Show display (not an offer but instead an invitation to
make an offer

- An offer can be made to another party (one another

person) or (group of others) or the world at large (Carlill v
Carbolic Smoke Ball Company Case)

- Some Example of offer include:

o An offer to sell or an offer to buy

Acceptance

- To have a valid acceptance of the offer, the acceptance

must be final and clear and must be the same as the offer.
Cannot be any variation with the acceptance. Otherwise, it
will be a counteroffer
 - The acceptance must be exactly the same as the offer.
(E.g.: If offer to buy the car is $10,00. The acceptance by
the owner of the car must be the same as the offer).

- Silence cannot be an acceptance. An acceptance must

contain a positive act. Can be in written or verbal or by
conduct or even by performance of an act

- Other rules with acceptance for it to valid:

A)Reasonable time of the offer
B) Must be communicated to the other party
C) Must be final
D)Must be in reliance of the offer

Consideration
- Consideration is a mutual exchange of an item of value
e.g., Money that is paid for the transfer of goods or
payments of service. (E.g; - the seller of a car agreed to
sell his car for $10,00. The buyer of the car has agreed to
pay $10,000)
o At that stage of the agreement there is a
consideration of form of an exchange of promises
o When the buyer makes the payment ($10,00) to
the seller. At that point the consideration is said
to be executed.

Chapter 5 – Formation

Intention to create a legal relation:

- The courts use two tests in relation to presumptions:

 - With a Commercial Agreement there is a presumption that
the parties intended to create legal relations and have a
binding contract

- With a Social, Family or Domestic Agreement there is a

presumption that the parties did not intent to create legal
relations and hence, no contract was intended to be
formed

- With wither presumption they can be rebutted with facts

and evidence to the contrary. (e.g.: if money is involved
then that will usually mean that there was an intention to
create legal relation, epically if the money was used to buy
good or pay for services)

Agreements to Agree (Subject to Contract clause)

- The courts will usually indicate that until that condition is

fulfilled there is no binding contract
- Example’s:
o subjects to contract
o Subjects to finance approval
o Preliminary agreements
o Agreement to agree
o Informal agreement
o Non-binding agreement

Generally, until these conditions are fulfilled

there is no legal contract

- Masters v Cameron (page 187 – 188). High Court

decision: no binding contract existed between the parties
(Masters and Cameron). Subject to contract clause did not
allow the creation/ formation of legally binding contract
between the parties.
OFFER

- An offer to be valid must be clear, certain, and firm and

contain a promise. The offer must also be communicated
to the other party.

- Offeror: party that makes the offer

- Offeree: party that receives the offer

- Offer can be made to one other person. Group of people

and even the whole world at large.

- Carlill v Carbolic Smoke Ball Co. [1892] 2 Q.B. 484

(page 193- 194). In the Carlill case the court held that an
offer can be made in an advertisement to the whole world
at large if it contains a promise (to pay 100pounds) and
the promise is supported with other facts the the company
would open a special bank account with a 1000 pounds
deposit.

Invitation to Treat
- An invitation to treat is not an offer instead is an invitation
to make an offer
- Some Examples include shops displays and
advertisements
- These are not offers to sell, instead the customer makes an
offer to buy at the cashier (point of sale): Pharmaceutical
Society of Great Britain -v- Boots [1952] 2 QB 795
(pages 196-197)

- A counteroffer is not a valid acceptance. Instead, the

counteroffers does not amount to an acceptance because it
is different to the original offer.
Acceptance

The general rule with acceptance is that it must be communicated to

the other contracting party. As this can be expressed with words or in
written. Silence cannot amount to valid acceptance

- There is an exception to this general rule. The exception is

called the Postal Acceptance Rule.

- The postal Acceptance rule requires that parties must have

contemplated the use of post in their dealing
- The postal acceptance rules provide:
o Acceptance occurs when the letter is posted in the
mailbox and not when it is received.

Consideration

Is a mutual exchange of an item of value

- EG: Party A, Purchases a car from party B for $10,000.
Party A promise to pay $10,00 to party B.

- What is the consideration?

It is a mutual promise to pay and deliver the car.
Consideration is provided by both parties A and B. The
Consideration in this example is the promise to pays the
$10,000 and the promise to deliver the car. It is
unexecuted at this stage.

When Party A, pays the $10,000 to Party B, we say the

consideration has now been executed.

- Is the market value of the car is saying $15,000, then the

promise to pay $10,000 by consideration by party A, is
 still a good consideration. Consideration does not have to
equal market value. It just needs to be an item of Value.

Certainty of Terms

Certainty of term is another important elements of a binding contract

- Courts will not enforce vague, incomplete terms or even if

the terms are uncertain
- (See: Biotechnology Australia -v- Pace (1988) 15
NSWLR 130) page 227 text

- Sometime courts may attempt to overcome uncertain

terms if they can, rely on external industry standards, or
use customs or pervious course of dealings

Chapter 6 - The Parties

The capacity of parties to a contract is an important element for every
binding legal contract/agreement
- Some individuals have a restriction on their legal capacity
to enter into a contract.

- This may mean that certain individuals do not have full

legal capacity to form a contract.

- The law can impose restrictions on individuals that would

otherwise be abused

- These individuals that restrictions on their legal capacity

include

o Minors (children under the age 18 years

o people that are effect by alcohol or drugs
 o Bankrupts that are undischarged

MINOR (Children under the age of 18)

A contract with a minor can fall within 3 categories:
a) Valid
b) Voidable
c) Void

- For a contract to be valid and binding in the minor the

contract needs to be either:
a) Contract for necessaries
b) Contract for beneficial services

CONTRACT FOR NECISSARIES

- These types of contracts are considered to be necessary
and valid and binding in the minor because they are
necessary to sustain the minor’s life
- EG: - Food, Housing/ Accommodation, Medical expenses,
education

The courts will look at each contract closely to see whether

the item(s) purchased are truly necessary to the minor having
regarding to their circumstance

- NASH V IMAN (page 244), where the court held that

waistcoats were not considered to be a contract for
necessary and therefore was not valid, nor binding on the
minor (child)

- Bojczuk v Gregorcecewicz (page 244-245), the court held

that the agreement for the repayment of travel to Australia
was not a contract for necessaries having regard to the
minor’s circumstances. The agreements did not fall within
established class of agreement chich were held to be
binding on minor
CONTRACTS FOR BENIFICIALS SERVICES
- A contract for beneficial service is also a valid and
binding contract with a minor. The courts look to see
whether there us a service that is provided to the minor
that is a tangible benefit to the minor
o SEE: Hamilton v Lethbridge (Page 246 text). The
High Court held that the contract of employment
(article clerk) was in fact valid and binding on the
minor. This is because the contract was one for
beneficial services and the contract provided a
real and tangible benefits to the minor.

Voidable Contract
- Voidable contract can be avoided by the minor either
before they turn 18 or within a reasonable time after the
turn 18. These types of contracts involve future
obligations (e.g.: leases, purchases of shares or partnership
agreements)
- The minor has the option to either affirm and keep the
contract alive or avoid the contract. It is the option of the
minor and hence, they area called voidable contracts.

Void Contracts
- Void contracts are not valid not are they binding on
minores. Void contracts include; contract for loans, credit
or debts. Void contracts also include contracts for goods
or services that do not fall within contracts of necessaries
or for beneficials services.
- Void contracts also include contracts that are not voidable

Voidable Contracts
- There is a class of voidable contracts within the certain
people include:
o People affected by alcohol or drugs
 o Bankrupts
o Mentally ill

- Contracts that are entered into with these people will be

voidable at the option of that party. This is designed to
protect people that are affected from being abused
- They have the choice to either walk away from the
contract or affirm the contract when they are in a position
to do so

Government Authorities
- Government authorities can have their power to enter into
contracts restricted. Hence, they do not have fill legal
capacity to contracts
Private Sector Entitles
- Some private entitles also have restriction on their ability
to enter into contracts. These entitles include building
societies and credit cooperatives.

The Doctrine of Privity

- The doctrine of privity is a rule developed by the court
(common law) to say that only parties to the contracts can
sue (take action)
- This rule, doctrine of privity, was designed to prevent this
parties from obtaining/enforcing a benefit under a contract

- However, there are expectations to the privity rule which.

Includes:
- If the third party (party c) can prove that there is:
o Trust relationship or
o Joint promise
o Agency relationship

- The third party can enforce their expected benefits under

the contracts made between Party A and Party B.
Chapter 7 - The Terms
The terms of contracts are important because they effectively make up
the contract between the parties

- The terms are important because they carry with it legal

implications that include remedies if the terms are
breached

TERMS V REPRESENTATIONS
- Terms need to be distinguished from other non-terms
including representation
- A representation is not a term but may still have legal
implications. However, a breach of a representation does
not amount to a breach of contract
- A breach of terms does amounts to a breach of contract

- Courts will use an objective test to distinguish between a

term and representation.
- That objectives test is one based on reasonable person
- Court will ask what the intention of the parties were and
use the reasonable person test to try and work out the
parties’ true intentions

- Courts will look at a number of factors to try and

determine the true nature of the statement that has been
made
- Some of these factors include; time, maker of the
statement, context, the relative importance of the
statement,

- For the statement to be a term, the courts must conclude

that the statement contained a clear and definite promise.
 - With representation these are statements which generally
occur before the contract is made/formed (pre-contractual
phase).
- Representation are not generally binding as they have no
contractual force/effect.
- However, representation which are false and fraudulently
made or negligence can be actioned as a misrepresentation

Types of Terms: Conditions v Warranties v Innominate/Hybrid

Terms

- Condition is an essential term (one that is so important

that the innocent party would not have entered into the
contract without that promise)

- A warranty is non-essential term and consider to be a

minor term.

- A Breach of a condition allow the innocent party to sue

for damages and terminate the contract (right to rescind)
- A breach of warranty allows the innocent party to only sue
for damages. The innocent party does not have the right to
terminate the contracts

- Innocent party is defined as the party that is not in breach

- Court us the test of essentiality to determine whether a

term is a condition or a warranty: (Tramways Advertising
v Luna Park (Page 273-274)

- Sometimes term cannot be characterised easily as a

condition or a warranty. This means that they may well be
an innominate term or hybrid term
- With a hybrid term the courts look at the consequence of
the breach of the hybrid term
 - If the consequences of the breach are major, then the
innocent party is allowed to sue for damages and
terminate the contract
- If the consequence of the breach of the hybrid term are
minor, then the innocent part will only be allowed to sue
for damages
- (SEE; Hong Kong FIR shipping v Kawasaki Page 275 –
276)

PAROL EVIDENCE RULE

- Is a rule developed by the courts (common law) to prevent
any other form of evidence to interfere with a written
contract (General Rule).

- There is however exception to the per which include:

o To prove a partly oral and partly written contract

o To prove that there was a mistake in the written
contract
o To clarify an uncertain term in a written contract
o To prove fraud or Duress
o To prove the oral agreement was rescinded by the
written contract

EXCLUSION CLAUSES
- An exclusion clause is a clause that attempts to exclude or
remove liability from one contracting party. The courts
interpret exclusion clauses narrowly because they produce
harsh outcomes for consumers/buyers of goods and
service
- There is ae generally 2 types of exclusion clauses: 1, is an
exclusion clause contained in a signed document, the other
in an unsigned document (ticket sales)

SIGNED DOCUMENT
 - With a signed document contract the general rule is that
the party is bound by their signature (L’Estrage v Graucob
page 277). There are some limited exceptions to the
signature rules include fraud or misrepresentation

UNSIGNED DOCUMENTS
- Sometime exclusion clauses are contained within
unsigned document e.g.: car park wall or on the back of a
ticket or receipt
- For an exclusion clause to be binding and valid when
contained in an unsigned document notice of the exclusion
clause must be brought to the attention of the customer
and before the contract is formed and notice must be
reasonable (Thornton v Show Lane Parking page 279)

- The case of CAUSER v BROWNE page 280), held that

for an voucher. Receipt an exclusion clause will generally
not be binding as a receipt in not considered to be
contractual document capable of containing binding terms.

- Notice of the exclusion clause must be broght to the

customer before the contract is formed and not afterwards:
(Olley v Marlborough page 281)

- Courts will interpret the exclusion clause against the party

that replying on the clause. If the clause is vague then it
will be interpreted against the party that is replying on the
clause: contra proferentem rule.

- However, if there has been previous course of dealings

then this may mean the exclusion clause is binding and
valid: Balmain New Ferry v Robertson page 282 -283

- Any misrepresentation of the exclusion clauses will render

the clause invalid and not binding: CURTIS V
CHEMICAL CLEANING CO PAGE 283 -284)
 - The Scope of the Exclusion clause is another important
consideration for the court. Courts will interpret exclusion
clauses narrowly. If the act does not fall within the scope
then the exclusion clause will not be binding (Sydney City
Council -v- West (1965) 114 481 (pages 289 -290)

Misleading or Deceptive Conduct – Chapter 10

The action of misleading or deceptive conduct is now found in
Section 18 of the Australian Consumer Law (ACL)

- Section 18 of the ACL had its origin in the section 52

Trade Practise Act
- Section 52 of the TPA no longer applies, instead we now
use section 18 of ACL

- The main aim of the ACL and section 18 is to provide

consumers who are considered to be vulnerable to
business
- ‘a person must not, in trade or commerce, engage in
conduct that is misleading or deceptive or is likely to
mislead or deceive’.

ELEMENTS OF SECTION 18 ACL

- ‘A Person’: defined broadly to include individuals and

businesses
- ‘Trade or Commerce’: the individual’s action must occur
in ‘Business context or trading element’
- ‘Engaging in Conduct’: Broadly defined to incorporate
many areas of conduct including even silence
- ‘Misleading or Deceptive’: broadly defined to include
many types of misleading conduct included lying,
withholding information, to lead into error etc
 - ‘Likely to Mislead or Deceive’: broadly defined to
incorporate many different types of conduct that is likely
to lead people into error

Trade or Commerce Element

- Under section 18 ACL there is a requirement that the
conduct falls within the trade or commerce element. This
requires the conduct to have occurred within the business
and within a commercial setting.

- The high court in (Concrete Constructions (NSW) Pty Ltd

v Nelson (1990) 169 CLR 594 (page 359) held that in the
internal communication of a company is not a conduct that
falls within trade or commerce of the scope of misleading
or deceptive conduct

Engaging in Conduct
- Is also another element that required under the section 18
of the CL. This element can mean either to do a refrain
from doing an act (EG: Silence)
- The court in (Henjo Investments Pty Ltd –v- Collins
Marrickville Pty Ltd (1988) 79 ALR 83) (page 360) held
that where there is a positive duty to disclose the act of
remaining silent can amount to engaging in conduct
contrary to section 18 ACL.

Mislead or Deceptive:
- ‘deceive’- to cause to believe what is false, to mislead as
to a matter of fact, to lead into error, to impose upon,
delude, take in.
- ‘mislead’- to lead astray in action or conduct; to lead into
error; to cause to err.

- (Taco Co. of Australia Inc –v- Taco Bell Pty Ltd (1982) 42
ALR 177), page 363). In this case the court examined the
 conduct of both company and held that the Taco Bell
Australia restaurant has been in operation for a number of
years and was therefore entitled to use the name Taco
Bell. The US company was in fact engaging in misleading
or deceptive conduct and was therefore in breach of
section 52 TPA (if the case was decided today the US
Company would be liable under section 18 ACL)

Misleading or Deceptive conduct under section 18 ACL is:

o False comparisons
o Misleading advice
o False Opinion
o Statements of intention and false predictions or
forecasts

Who can bring an action for misleading or deceptive conduct under

section 18 ACL?
- Individuals who are typically consumer who have been
misled.
- Other business who has suffered a loss due to a competitor
who has engaged in misleading or deceptive conduct
- Public interest groups (environnemental protection
groups)
- The Regulator ACCC (Australian Competition and
Consumer Commission)

Implication of Section 18 ACL

- The regulator (ACCC) is the key regulator for the ACL
especially for section 18 (misleading or deceptive
conduct)
- Section 18 ACL provides a more broadly based and
flexible other types (EG: common law misrepresentation).
S18 provides for better remedies compare with common
law misrepresentation especially with innocent
misrepresentation. Section 18 is not limited to consumer
Chapter 9 & 11 - Rescission & Unconscionable
Conduct
Unconscionable Conduct: is a conduct that unfair, unjust and against
good conscience
- Lord Denning, the chief proponent of this new
development, held in one of his judgments that in
unconscionable contracts ‘there runs a single thread. They
rest on ‘inequality of bargaining power’.
- Commercial Bank of Australia -v- Amadio (1983) 151
CLR 447
- The court decided that with the understanding that Mr and
Mrs Amadio having special disability, nevertheless, the
stronger party tales unfair advocate of the party with the
special disability. Hence with the innocent party having
clear disability in language the contract held towards the
business is not binding.

Requirement to frame a plea for ‘unconscionability’:

- The Stronger party must have been aware of that special
disability
- The weaker party must have been under a special
disability, as there is no real equity between them

Rescission: the term means the lawful termination of a a contract for

a violation of conditions or the repudiation. Of a contract not
preformed

Consumer and Business Protection Legislation: Statutory

Unconscionability
There are three main sections under the ACL to prohibiting
unconscionable conduct:
- Section 20: unconscionable conduct in general.
- Section 21: unconscionable conduct in consumer
transactions.
- Section 22: unconscionable conduct in business
transactions.

Chapter 12 – Remedies for breach of Contract

There are 3 types of damage:
- Ordinary damages are the typical sums awarded by a
court to compensate the plaintiff for their loss.
o Importantly, when the court makes an award of
ordinary damages, the main purpose of the award
is to compensate the plaintiff for their loss. An
award of ordinary damages is not designed to
punish the defendant.
- Nominal damages are a small or token sum awarded by
the court to the plaintiff. When a court makes an award of
nominal damages it may be satisfied with the substantive
nature of the plaintiff’s claim.
o The plaintiff maybe not provide evidence, but the
court will come to a conclusion of satisfying the
innocent if they have suffered any real loss arsing
form the defendant breach.
- An award of exemplary damages is designed to send a
strong signal from the court to potential defendants that
the nature of the breach by the defendant is unacceptable
according to prevailing community standards
o It is in this sense that exemplary damages may
also be viewed as punishment for the defendant.

Penalties and liquidated damages

- Liquidated damages mean that the number of damages
has been predetermined by the parties. Liquidated
damages are legally enforceable