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=== Express terms ===
=== Express terms ===
An express term is an enforceable, promissory statement, written or oral, that makes up part of a contract. Only terms made reasonably available to each party before a contract is made can be incorporated into the contract.<ref>''See'' Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1988/32.html?stem=0&synonyms=0&query=oceanic%20sun AustLii]; see also Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1906/83.html? stem=0&synonyms=0&query=title(Balmain%20New%20Ferry%20Co%20Ltd%20and%20Robertson%20) Austlii]; see also Thornton v Shoe Lane Parking Pty Ltd [1971] 2 QB 163 [http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html Bailii]; see also Baltic Shipping Company v Dillon [1993] HCA 4 [http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1993/4.html?stem=0&synonyms=0&query=HCA%201993%204%20or%201993%20HCA%204]</ref> For example, a party can incorporate terms when the other party knows, before or at the time the contract was made, that a delivered document or a displayed sign on premises contained the contractual terms in question. <ref>''See'' Oceanic Sun Line Special Shipping Company Inc v Fay [1988] HCA 32 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1988/32.html?stem=0&synonyms=0&query=oceanic%20sun AustLii]; see also Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1906/83.html?stem=0&synonyms=0&query=title(Balmain%20New%20Ferry%20Co%20Ltd%20and%20Robertson%20) Austlii] </ref>. Although some statements made before the contract was entered into may have been intended to operate as terms, not all such statements will in fact operate as terms. Whether or not a statement made during negotiations is an enforceable term depends on whether or not the contract is one that is fully in writing, or one that contains an oral agreement. If a contract is fully in writing, then no statements made outside of the contractual document will be enforceable.<ref>See ''[http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1919/64.html Hoyt's Pty Ltd v Spencer]'' (1919) 27 CLR 133, 143.</ref> This is sometimes made even more explicit by the inclusion of an entire agreement clause, which clarifies that no other statements or extrinsic materials may have any bearing on the terms.<ref>See [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/407.html?stem=0&synonyms=0&query=franklin%20metcash ''Franklins Pty Ltd v Metcash Trading Ltd''] [2009] NSWCA 407, [342].</ref> The presence of a written document creates a presumption that all the terms are contained in that document , but courts have recently been willing to allow this presumption to be rebutted.<ref>''State'' ''Rail Authority of NSW v Heath Outdoor Pty Ltd'' (1986) 7 NSWLR 170, 191.</ref> If it can be proven that the parties intended for other terms to supplement the written document, then a statement may be considered an express term if it is promissory in nature. Such a contract would be considered to be partly written and partly oral.<ref>See ''[http://eresources.hcourt.gov.au/downloadPdf/2004/HCA/55 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd]'' [2004] HCA 55, [36].</ref> For contracts that are made entirely by oral agreement, a statement will be an express term if it is promissory in nature.<ref>See ''[https://jade.io/article/66237 JJ Savage and Sons Pty Ltd v Blakney]'' (1970) 119 CLR 435, [11].</ref>
An express term is an enforceable, promissory statement, written or oral, that makes up part of a contract. Only terms made reasonably available to each party before a contract is made can be incorporated into the contract.<ref>''See'' Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1988/32.html?stem=0&synonyms=0&query=oceanic%20sun AustLii]; see also Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1906/83.html? stem=0&synonyms=0&query=title(Balmain%20New%20Ferry%20Co%20Ltd%20and%20Robertson%20) Austlii]; see also Thornton v Shoe Lane Parking Pty Ltd [1971] 2 QB 163 [http://www.bailii.org/ew/cases/EWCA/Civ/1970/2.html Bailii]; see also Baltic Shipping Company v Dillon [1993] HCA 4 [http://www.austlii.edu.au/cgi-bin/disp.pl/au/cases/cth/HCA/1993/4.html?stem=0&synonyms=0&query=HCA%201993%204%20or%201993%20HCA%204]</ref> Although some statements made before the contract was entered into may have been intended to operate as terms, not all such statements will in fact operate as terms. Whether or not a statement made during negotiations is an enforceable term depends on whether or not the contract is one that is fully in writing, or one that contains an oral agreement. If a contract is fully in writing, then no statements made outside of the contractual document will be enforceable.<ref>See ''[http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/cth/HCA/1919/64.html Hoyt's Pty Ltd v Spencer]'' (1919) 27 CLR 133, 143.</ref> This is sometimes made even more explicit by the inclusion of an entire agreement clause, which clarifies that no other statements or extrinsic materials may have any bearing on the terms.<ref>See [http://www.austlii.edu.au/cgi-bin/sinodisp/au/cases/nsw/NSWCA/2009/407.html?stem=0&synonyms=0&query=franklin%20metcash ''Franklins Pty Ltd v Metcash Trading Ltd''] [2009] NSWCA 407, [342].</ref> The presence of a written document creates a presumption that all the terms are contained in that document , but courts have recently been willing to allow this presumption to be rebutted.<ref>''State'' ''Rail Authority of NSW v Heath Outdoor Pty Ltd'' (1986) 7 NSWLR 170, 191.</ref> If it can be proven that the parties intended for other terms to supplement the written document, then a statement may be considered an express term if it is promissory in nature. Such a contract would be considered to be partly written and partly oral.<ref>See ''[http://eresources.hcourt.gov.au/downloadPdf/2004/HCA/55 Equuscorp Pty Ltd v Glengallan Investments Pty Ltd]'' [2004] HCA 55, [36].</ref> For contracts that are made entirely by oral agreement, a statement will be an express term if it is promissory in nature.<ref>See ''[https://jade.io/article/66237 JJ Savage and Sons Pty Ltd v Blakney]'' (1970) 119 CLR 435, [11].</ref>


=== Implied terms ===
=== Implied terms ===

Revision as of 09:52, 30 July 2016

Australian contract law is based on the inherited English contract law, with specific statutory modifications of principles in some areas. Australian law has developed through the decisions of Australian courts, especially since the 1980s, and various pieces of legislation passed by the Parliament of Australia and by the various states and territories. See contract law for very general doctrines relating to contract law. In Australia, the law of equity has also played an increasing part in changing the laws regarding contracts, and what occurs when they are breached.

Formation

There are five essential elements necessary for legally binding contract formation: (1) an agreement (offer and acceptance); (2) consideration (a bargain requirement: generally, the supply of money, property or services or a promise to undertake, or not undertake a particular act in exchange for something of value); (3) capacity to enter legal relations (e.g. of sound mind and legal age); (4) intention by the parties to enter into legal relations (private non-commercial agreements between family members may not indicate intention to enter a legally binding contract and therefore may not be enforceable) and (5) certainty (the contract has to complete, certain, clear and binding).[1] There may also be other statutory requirements or formalities guiding contract formation for particular classes of contracts. In most jurisdictions, contracts do not need to be represented in writing. However, exceptions apply, especially in contracts for the sale or lease of land.

The foundation of the legal relations called contract is the agreement of the parties. In order for an agreement to be a contract (or a variation to an existing contract) it must be supported by consideration. The agreement must also be sufficiently certain and complete to be enforced in the courts and the parties must have intended their agreement to be a contract. The absence of any of these elements will signify either that there is in law no agreement or that the agreement is not enforceable as a contract.

Agreement

The existence of an agreement between the parties is usually analysed through the rules of offer and acceptance.[2][3] This may be expressed as a clear indication ("offer") by one party (the "offeror") of a willingness to be bound on certain terms[4] accompanied by a communication by the other party (the "offeree") to the offeror of an unqualified assent to that offer ("acceptance").[5]

An offer indicates an intention by the offeror to be bound without further discussion or negotiation, on acceptance of the terms set out. The court will determine the offeror's intention objectively.[6] It is distinguished from an "invitation to treat", which is a request to others to make offers to engage in negotiations with a contract in mind.[7] An offer is also distinguished from "mere puff".[8] An offer may be made to become liable to anyone who, before it is withdrawn, accepts the offer. It may be restricted to certain classes of people;[9] or on the other hand be made to anyone who, before it is withdrawn, accepts the offer,[10] including unascertained persons,[11] or to the public at large.[12] However, an offer is ineffective until it has been communicated,[13] either by the offeror or a third person acting with the offeror's authority.

An acceptance of the offer resulting in a binding contract must take place with knowledge of the offer and an intention to accept the offer.[14][15] Although acceptance need not be express and may be implied from conduct, it must correspond with the offer;[16] be unequivocal;[17] and in general, be communicated to the offeror.[18] Where a purported acceptance proposes one or more additional or different terms it is ineffective as an acceptance, unless the variation is solely in favour of the offeror.[19] A purported acceptance will also be ineffective if made at a time when the offer has lapsed by virtue of time; if it is made subject to a contingency and that contingency ceases to exist; if the offeror dies and the offeree has notice of this fact; by the revocation of the offeror or the rejection by the offeree.[20]

Furthermore, it is important to note that the postal rule is an exception to the general rule that acceptance of an offer takes place when communicated to the offeree. Under the rule, acceptance of an offer is effective as soon as it is posted, notwithstanding it may be lost in the delivery process and not received by the offerer.[21] However, the postal acceptance rule does not extend to instantaneous telecommunication methods, such as telephone, facsimile, and, presumably, emails.[22] This means that, where acceptance is communicated electronically, contract is formed when and where acceptance is received, rather than at the moment it is posted. Transactions via electronic communications are now governed by statute.[23]

However, the rules of offer and acceptance are merely "an aid to analysis",[24] and may sometimes prove inconclusive or artificial.[25] A contract can be made without an identifiable offer and acceptance, provided the parties have manifested their mutual assent.[26] The "acid test" in a case where offer and acceptance cannot be identified, according to Justice Cooke in Meates v Attorney-General, "is whether, viewed as a whole and objectively from the point of view of reasonable persons on both sides, the dealings show a concluded bargain."[27]

Consideration

The second element necessary for contract formation is consideration. A promise will be enforceable at common law only if it is supported by consideration or made under seal.[28] Consideration can be anything from money to a promise to undertake or not undertake a particular act, even a mere peppercorn could suffice.[29] In Australian law, the question of sufficiency of consideration does not refer to 'adequacy' as it is not the role of the judge to determine and value whether something is adequate or valuable or not.[30] This accounts for the fact that different things mean differently to different parties. Sufficient consideration may also include abstract exchanges such as 'love and affection'.[31]

"Consideration" in this context means that a promise is given in return for a promise received. The usage of the word derives from expressions such as: "I will give you ten pounds in consideration of the apples you are delivering to me."[32]

Joint promisees: Consideration given in return for a promise must move from the promisee; where there are joint promisees in a contract, consideration may be provided by one on behalf of both of them, or consideration may be provided by both promisees.[33]

Generally past consideration is not sufficient consideration[34] but a past service performed at the request of the promisor with an implication they will be paid for is sufficient consideration for a subsequent promise to pay for them.[35]

Illusory Consideration: An agreement may be held as void if a vital provision is deemed to be illusory.[36] That is, that one part has a discretion either to the performance or to the content of that provision.[37] Note, if one party has some latitude or discretion as to the manner in which certain agreed provisions will be effected, but that discretion is limited, then the provisions are not illusory.[38]

Further, a contract will not be illusory where an essential term is left to the discretion of a third party.[39]

Capacity

Contractual capacity refers to the ability of a party to enter into a legally binding contract. Minors, drunks[40] and the mentally impaired[41] may not possess adequate capacity however the ordinary reasonable person is presumed by default to have contractual capacity.[42]

Intention

The fourth element is that the parties must manifest an intention to create legal relations. The intention requirement has often been approached on the basis that parties to commercial arrangements are presumed to intend legal consequences,[43] while parties to social or domestic agreements are presumed not to intend legal consequences.[44] Such presumptions determine who bears the onus of proof.[45] In Ermogenous v Greek Orthodox Community of SA, a case relating to the engagement of a minister of religion, the High Court has, however, been critical of the utility of a language of presumptions in this context.[46]

Preliminary agreements become apparent when parties enter into an agreement, however that is yet to have been formalised in a more intricate agreement which will be signed by both parties. Where one party later refuses to continue with the agreement, the question thus arises whether the first agreement was intended to be enforceable. In Masters v Cameron the High Court held three possibilities to be available;[47]

  1. Parties intended the preliminary agreement to be immediately binding, however to be later expressed in a formal document; or,
  2. Parties intended to be immediately bound, however their performance of terms is suspended until their intention is formalised through conclusion of legal documentation; or,
  3. Parties do not intend to be immediately bound, instead they intend to be bound only when a properly drawn contract has been signed.


A fourth category was introduced by McLelland CJ in Eq in Baulkham Hills Private Hospital Pty Ltd v GR Securities Pty Ltd (1986) 40 NSWLR 622 at 628, stating that there was an immediately binding agreement on the parties although they expected that a further contract would be made in substitution for that first contract. Although the fourth category seems similar to the first Masters v Cameron category, the fourth category is an accepted principle. .[48]

There is a prima facie presumption that this third category is evident where the phrase 'subject to contract' has been utilised.[49]

Formalities

In most jurisdictions contracts do not need to be represented in writing but exceptions apply. Oral contract are as enforceable as written contracts. However, there are a number of exceptions that have been created by statute. Examples are marine insurance which to be binding must be documented in written form. Also consumer credit must be documented in written form with a copy provided to the consumer. Similar formalities are required for the sale of land.[50] These requirements have been put in place by statute in order to protect consumers and/or prevent such acts as fraud.

Certainty

For contract formation the agreement must be sufficiently certain and sufficiently complete that the parties' rights and obligations can be identified and enforced.[51] The topic of certainty encompasses three related and often overlapping problems:[52]

1. The agreement may be incomplete because the parties have failed to reach agreement on all of the essential elements or have decided that an essential matter should be determined by future agreement.[53]
2. The agreement may be uncertain because the terms are too vague or ambiguous for a meaning to be attributed by a court.[54]
3. A particular promise may be illusory because the contract effectively gives the promisor an unfettered discretion as to whether to perform the promise.;[55][56][57][58]

The case law reflect the tension between, on the one hand, the desire to hold parties to their bargains in accordance with the principle pacta sunt servanda and, on the other hand, the courts' reluctance to make a bargain for the parties. Although there have been differences in Australian judicial opinion as to the role of the court in giving effect to a contract,[59] in general the courts give primacy to the need to uphold agreements,[60] particularly executed agreements[61] and commercial arrangements.[62]

Terms

A term is any clause or provision in a contract. The two main issues which arise in relation to contractual terms are: what are the terms of the contract (identification) and what are their legal effects (construction).

Express terms

An express term is an enforceable, promissory statement, written or oral, that makes up part of a contract. Only terms made reasonably available to each party before a contract is made can be incorporated into the contract.[63] Although some statements made before the contract was entered into may have been intended to operate as terms, not all such statements will in fact operate as terms. Whether or not a statement made during negotiations is an enforceable term depends on whether or not the contract is one that is fully in writing, or one that contains an oral agreement. If a contract is fully in writing, then no statements made outside of the contractual document will be enforceable.[64] This is sometimes made even more explicit by the inclusion of an entire agreement clause, which clarifies that no other statements or extrinsic materials may have any bearing on the terms.[65] The presence of a written document creates a presumption that all the terms are contained in that document , but courts have recently been willing to allow this presumption to be rebutted.[66] If it can be proven that the parties intended for other terms to supplement the written document, then a statement may be considered an express term if it is promissory in nature. Such a contract would be considered to be partly written and partly oral.[67] For contracts that are made entirely by oral agreement, a statement will be an express term if it is promissory in nature.[68]

Implied terms

Apart from the terms expressly agreed, by reason of what the parties have written or said, implied terms may also exist to impose obligations on the parties or to qualify the terms of their bargain. Implied terms are not necessarily excluded by entire contract clauses.[69][70]

Terms implied in fact

A term may be implied ‘in fact’ into a contract, to give full effect to the presumed intentions of the contracting parties.[71] Terms implied in fact are terms that are ‘tailored’, and therefore unique, to the particular contract in question. Terms implied in fact are traditionally said to be based on the ‘presumed’ intentions of the parties concerned.[72]

In formal contracts, in ascertaining a party’s presumed intentions, reliance is placed on the rule handed down in BP Refinery v Hastings Shire Council (1977)[73] where, for a term to be implied, the following conditions must be satisfied:

  1. Reasonable and Equitable: it must be reasonable and equitable.[74] Reasonableness alone is not a sufficient reason for implying a term.;[75]
  2. Business Efficacy: it must be necessary to give business efficacy to the contract so that no term will be implied if the contract is effective without it.[76][77] This question may be interpreted as being whether or not reasonable persons would consider that the proposed term was necessary to enable the contract to operate in a businesslike manner.[78]
  3. Obviousness: it must be so obvious that "it goes without saying".[79] Prima facie, that which in any contract is left to be implied and need not be expressed is something so obvious that it goes without saying; so that, if, while the parties were making their bargain, an officious bystander were to suggest some express provision for it in their agreement, they would testily suppress him with a common ‘Oh, of course!’ [80]
  4. Clarity: it must be capable of clear and precise expression.[81]
  5. Consistency: it must not contradict any express term of the contract.[82]

These criteria have been approved by the High Court on numerous occasions.[83]

In the case of an informal contract, where the parties have not attempted to stipulate the full terms, the courts should imply a term upon referring to the imputed intention of the parties, provided that the particular term is necessary for the effective operation of the contract.[84] In implying terms in an informal contract, the High Court has suggested that a flexible approach is required.[85] In a case where it is apparent that the parties have not attempted to spell out the full terms of their contract, the court should imply a term by reference to the imputed intentions of the parties if, but only if, it can be seen that the implication of the particular term is necessary for the reasonable or effective operation of a contract of that nature in the circumstances of the case.[86] Obviousness also remains an important element in implying a term in an informal contract.[87]

Terms implied in law

Terms implied in law are terms automatically implied in contracts of a particular class or description deriving from legal principles rather than the intentions of the parties to the contract.[88][89][90] Bostik v Gorgevski [1992] FCA 209; (1992) 36 FCR 20; Wheeler v Philip Morris Ltd [1989] FCA 230; (1989) 97 ALR 282 and Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; 99 ALR 45 Bostik v Gorgevski [1992] FCA 209; (1992) 36 FCR 20; Wheeler v Philip Morris Ltd [1989] FCA 230; (1989) 97 ALR 282 and Lane v Arrowcrest Group Pty Ltd (1990) 27 FCR 427; 99 ALR 45 [91][92] For a term to be implied in law, the relevant test is whether the omission of the term would significantly diminish the rights of the parties under contract.[93] This has been referred to as the test of necessity,[94] which has been differentiated from the business efficacy test conducted in the implication of terms in fact, due to the former test taking into regard considerations of policy,[95] and among other things such as the nature of the contract, and justice and policy.[96]

Terms implied by custom

A term can also be implied by customs.[97] The existence of a custom or usage that will justify the implication of a term into a contract is a question of facts.[98] There must be evidence that the custom relied on is so well known and acquiesced in that everyone making a contract in that situation can reasonably be presumed to have imported that term into the contract.[99] The custom is only to be inferred from a large number of individual acts which shows an established understanding of a course of business.[100] The implied term cannot contradict an existing express term.[101] However, a person may still be bound by a custom notwithstanding the fact that he had no knowledge of it.[102]

Construction of terms

Where the terms of the contract are ambiguous or susceptible to more than one meaning, evidence of surrounding circumstances and context may be admissible to assist in its interpretation.[103] The High Court has recently reiterated the Codelfa ruling regarding the use of existence evidence in the interpretation of contacts.[104] For example, this would commonly invite one to examine the commercial purpose of the transaction, its background and context, common practices etc.[105] Moreover, courts tend to favour an interpretation that produces a reasonable commercially accepted result and avoids unjust or inconvenient consequences to both parties.[106] It is also important to note that the subjective intention of the parties is irrelevant. The construction of contractual documents is determined by what a reasonable person in the position of the party would have understood the words to mean.[107] With regard to a recent judgment made by the High Court within Australia in Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45. Justices Gummow, Heydon and Bell agree the position of the Australian courts: where "a court is not justified in disregarding unambiguous language simply because the contract would have a more commercial and businesslike operation if an interpretation different to that dictated by the language were adopted." This High Court decision defends the original NSW Court of Appeal judgment and ultimately upholds the rule observed in Codelfa [1982] HCA 24 and Royal Botanic Gardens and Domain Trust v South Sydney City Council [2002] HCA 5.[108]

Effect of a signature

The L'Estrange Rule [109] governs the effect of a signature in contracts law, which states that a party is bound by the terms of a contractual document once it is signed regardless of whether or not the party has read or understood the terms in a contract. In general, in lieu of fraud or misrepresentation a party will be bound by the terms contained in a contractual document.[110] See also [111] This is on the basis that it provides an objective criteria as to whether a party has agreed to the terms of a contract. However, this rule is subject to exceptions. A signature will not be binding where the signature was obtained by a fraud or misrepresentation, or where document was not known to be a contract by the party signing it.[112] The act of signature or executive enables third parties to assume the legal efficacy of the contract.[113]

Illegality

A contract may be illegal because it is prohibited by statute or because it infringes a rule of public policy.[114]

There are a range of consequences of illegality:

  1. Unenforceable Contract: Where a contract is found to be unenforceable, it continues to be valid if both parties perform the agreement, but the court will not enforce it.[115] However, there is some support for the view that a plaintiff who was innocent should be able to enforce the contract.[116]

Non-Retrieval: Another consequence of illegality is that neither party may recover money or property transferred under the affected contract.[117] However, there are exceptions where the plaintiff is a victim of the contract, or where the plaintiff repents and repudiates the contract before the illegal purpose is carried out.[118]

  1. Estoppel: A party may be prevented from avoiding his or her contractual obligations under the doctrine of estoppel, where there are notions of unconscionability, despite the illegality.[119]
  2. Recession: Puts party in positions before the formation of the contract. E.g., any deposits held previously by a vendor in a sale shall be returned. Parties in Recession cannot be awarded compensation for collateral loss.[120]

Termination

Termination Under the Original Contract

It is common, particularly in long-term commercial agreements, for parties to include an express term providing for when or how their contract may be brought to an end.[121] Where a contract is silent as to its duration, courts may be prepared to imply a right for one or both of the parties to terminate the contract.

Termination by Subsequent Agreement

Parties may terminate a contract by making a subsequent agreement under which they both agree to release the other party from their obligations under the original contract. This subsequent contract must comply with the ordinary rules of contract formation, including consideration. Where both parties still have obligations to perform under the contract, each party will provide consideration in agreeing to release the other part from his or her remaining obligations.[122] In cases where contracts have been partly performed (where one party has fully performed their obligations under the contract), the non-performing party can also provide fresh consideration by an accord and satisfaction. This is the purchase of a release from an obligation by giving any valuable consideration that is not the actual performance of the original obligation. These difficulties can also be avoided by executing a deed.

Where parties make no express statement of how the subsequent agreement interacts with the original, it can be inferred from the circumstances whether the original contract has been terminated. The parties may have intended the subsequent agreement to replace the original contract,[123] or they may have intended it to vary the terms of the original contract.[124] Whether the agreement was intended to replace or vary the original is a 'matter of degree'.[125]

Termination for Breach

The rise of a right to terminate for breach of a term of a contract depends on the classification of the term as a:

1. Condition: aggrieved party will be entitled to terminate for any breach of that term by the other party regardless of the gravity or consequences of that breach. The appropriate test is that “the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or a substantial performance of the promise…”.[126]

2. Warranty: Warranties arise if, in the absence of a clear expression to the contrary, there is no possibility that a breach of a particular term would deprive the aggrieved party of all or part of their expected benefit from the contract as a whole.[127] Therefore, the aggrieved party will not be entitled to terminate merely by reason of a breach of the term by the other party.

3. Intermediate or innominate term: the aggrieved party’s right to terminate depends on the gravity and consequences of the breach of the term. If the breach is likely to have serious consequences for further performance then they will be entitled to terminate.[128] The test for serious innominate terms is whether the breach would deprive the aggrieved party of substantially the whole benefit intended under the contract.[129]

Test for whether the term is essential and therefore gives rise to the right to terminate as set out in Tramways:[130] See also Associated Newspapers Ltd v Bancks[131] and Ankar v National Westminster Finance.[132]

(1) Whether it appears from the general nature of the contract, or from some particular term or terms,

(2) that the promise is of such importance to the promisee that he would not have entered into the contract unless he had been assured of a strict or substantial performance of the promise

(3) And that this was apparent to the promisor.

Termination for Failure of Contingent Condition

Parties may make the performance of their contract conditional upon the occurrence of a specified event that neither party promises to ensure will occur. If the event does not occur, then one or both parties will be entitled to terminate the contract.[133] The time for fulfilment of a contingent condition may be expressly specified in the condition. If no time is specified, the courts will construe the contract as requiring the condition be fulfilled within a reasonable period of time, having regard to the circumstances of the case.[134]

In certain contracts, it may be unclear if non-fulfilment of a contingent condition has occurred where there is a subjective requirement in the contract, such as whether one party has achieved "satisfactory finance." If the contingent condition is a subjective fact, parties must act "honestly" or genuinely believe the condition to be true. [135]

Termination for Repudiation

Where one party manifests an unwillingness/inability to perform his/her contractual obligations, the other party has the right to terminate.[136] A[137] This does not depend upon the subjective intention of that party.[138] An intention to repudiate may be evinced through either express or implied conduct, or may be ascertained from a combination of smaller breaches.[139]

The unwillingness/inability to perform must relate to whole of the contract, to a condition of the contract or be “fundamental”.[140] This may be evidenced by a single act or by an accumulation of conduct.[141]

Termination by Frustration

Frustration occurs whenever the law recognises that without fault of either party, a contractual obligation has become incapable of being performed because the circumstances in which performance is called for would render it a thing radically different from that which was undertaken by the contract.[142]

Elements

(1) The event occurring after the contract was made, must make it physically or legally impossible to perform what was originally promised (i.e. it is not enough that it makes it more difficult or more expensive)

(3) The contract must not have exhibited an intent that one or other was to bear the risk of occurrence of events of this kind

(4) Frustration is seldom found in unexpected (and unprovided for) circumstances that could reasonably have been foreseen at the time of contracting.

A contract may be frustrated by events which cause, or are likely to cause, an inordinate delay in the performance of the contract. The delay must be such as to seriously affect the intended performance of the contract.[143][144] For further explanation regarding the concept of frustration in Australia see Codelfa Construction Pty Ltd v State Rail Authority of NSW[145]

Precedents

- Exposito v Bowden: where as a result of a change in the law, performance of a contract is rendered illegal.[146]

- Taylor v Caldwell: where a particular thing which forms the subject matter of a contract, and whose continued existence of which is essential to the performance of that contract, ceases to exist.[147]

- Horlock v Beal; Codelfa v SRA; Brisbane CC v Group Projects: where the basis of the contract is dependent on the continued existence of a particular set of circumstances which cease to exist.[148]

- Krell v Henry: where the occurrence of an event forms the very basis of a contract and such event does not take place.[149] - Metropolitan Water Board v Dick Kerr & Co: Where the decisions of government interferes to render a contract something entirely different from the one the parties originally made.[150]

Legislation

Frustrated Contracts Act 1978 (NSW).[151]

Termination by Delay

A contract will commonly specify a time by which the obligations set out in the contract are to be performed by. Where there is no time is specified for performance, the law implies an obligation to perform within a reasonable time. A time stipulation which can be regarded as being a condition of a contract is considered to be "essential" and time is "of the essence". Failure by one party to perform their obligations under the contract by the appropriate time gives rise to a right in the non-offending party to elect to terminate the contract.

Where one party to a contract is in breach of a time stipulation but time is not of the essence, the non-offending party may still gain a right to terminate for the delay through use of the notice procedure. Either the delay must be shown to be unreasonable, after which a party can issue a notice with regards to termination, or the offending party must already be in actual breach of the time stipulated in the contract.[152] The notice must specify a reasonable time for completion, indicate that time is of the essence and that failure to adhere to the conditions will result in termination of the contract. Additionally, the non-offending party must be ready, willing and able to perform their contractual obligations at the time the notice is issued.[153]

Australian legislation affecting contracts

Most States have effected statutes relating to the sale of goods, such as the Sale of Goods Act 1896, (Qld)[154] which imply conditions and warranties in relation to fitness and merchantibility.[155] However, in many instances such implied terms can be displaced by the contrary intention appearing in the contract between the parties. This has meant that, in practice, in many sale of goods contracts these provisions are displaced.

There are similar implied terms under the Australian Consumer Law[156] (found in the Competition and Consumer Act 2010 (Cth) Schedule 2) relating to fitness and duty to take reasonable care in some classes of contract, and these particular terms are unable to be displaced by contrary intention: that is, the term will be implied into a contract of that kind irrespective of the parties' intention.

The Australian Consumer Law, together with Fair Trading legislation in all states, also allows a corporation or person to be sued where they have engaged in misleading or deceptive conduct regarding commercial or trade matters.[157]

When Equity may intervene

The common law will hold a contract to be binding as long the essential elements for a contract are present (i.e. agreement, consideration, certainty etc.). However, in certain situations equity may intervene and make the contract either voidable or void.[158][159][160] The rule in Yerkey v Jones and the principles of non-est factum,[161] misrepresentation,[162][163][164][165][166] and special disadvantage[167] are some of the situations in which equity may intervene and make the contract voidable or void.[168][169][170]

Furthermore, equitable relief, as demonstrated in Nelson v Nelson [171] seeks to remedy unconscionability and not to punish the wrongdoer. An important equitable remedy is the order of equitable rescission where the advantage over its common law counterpart is that the parties need not be restored precisely to their position before the contract.[172]

Australian case law

A number of decisions from Australian courts have also affected the circumstances where legal action can be taken regarding contracts. A number of Australian cases have introduced the concept of acting "unconscionably" as a reason for overturning the validity of a contract: Commonwealth v Verwayen [173], or where one party is at a "special disadvantage": Commercial Bank of Australia Ltd v Amadio.[174] see also Supreme Court Act 1970 (NSW) s66 (4).

References

  1. ^ Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
  2. ^ Carlill v Carbolic Smoke Ball Company [1892] EWCA Civ 1
  3. ^ For a High Court case illustrating the adoption of the offer and acceptance approach to formation see, for example, R v Clarke (1927) 40 CLR 227; [1928] ALR 97; (1927) 1 ALJ 287. See also Gibson v Manchester City Council [1979] 1 WLR 294.
  4. ^ See Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 at 457 per the Full High Court; [1954] ALR 453; (1954) 28 ALJ 94.
  5. ^ see R v Clarke [1927] HCA 47
  6. ^ See Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61. See also R v Clarke [1927] HCA 47 Austlii; see also "Empirnall Holdings Pty Ltd v Machon Paull Partners Pty Ltd" (1988) 14 NSWLR 52 LexisNexis Westlaw
  7. ^ Retailers have sometimes taken advantage of this distinction to engage in bait advertising (advertising goods at attractive prices but not in fact intending to sell in more than minimal quantities, if at all), but the Trade Practices Act 1974 s 56, and each State's Fair Trading Act now makes this a criminal offence; Items displayed for sale are invitations to treat, see Pharmaceutical Society of Great Britain v Boots Cash Chemists (Southern) Ltd [1953] 1 QB 401 BaiLII
  8. ^ See Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 BaiLII
  9. ^ See for example North-West Co-op Freezing and Canning Co Ltd v Easton (1915) 11 Tas LR 65 (application for shares directed to provisional directors of company about to be formed held to be offer to company when formed).
  10. ^ See Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256 at 258; [1891-94] All ER Rep 127; (1892) 67 LT per Bowen LJ, CA (defendant’s newspaper advertisement to public that £100 reward would be paid by the defendant to any person who contracted influenza, after having used preparation according to printed directions, held to be an offer to public).
  11. ^ See for example Westminster Estates Pty Ltd v Calleja [1970] 1 NSWR 526; (1970) 91 WN (NSW) 222 (offer to "A or his nominee" is effective and may be accepted by nominee once appointed, even though nominee’s identity not ascertainable at time when offer made)
  12. ^ See Carlill v Carbolic Smoke Ball Co [1893] 1 QB 256; [1891-94] All ER Rep 127; (1892) 67 LT 837, CA.
  13. ^ See, for example, Henthorn v Fraser [1892] 2 Ch 27 at 37 per Kay LJ (an offer to sell is nothing until it is actually received).
  14. ^ R v Clarke (1927) 40 CLR 227 Austlii. See also Taylor v Johnson (1983) 151 CLR 422 Austlii
  15. ^ "Banks v Williams (1912) 12 SR (NSW) 382".
  16. ^ See for example Tonitto v Bassal (1992) 28 NSWLR 564; NSW ConvR ¶55-644, CA(NSW) (option to purchase land not validly exercised where three documents were required to be sent and one was sent for another purpose at an earlier time); see also Clarke v The Crown (1927) 29 WALR 102 AustLii(Act must be done on faith or by reliance on the offer to constitute acceptance).
  17. ^ See, for example, Appleby v Johnson (1874) LR 9 CP 158; Spencer’s Pictures Ltd v Cosens (1918) 18 SR (NSW) 102
  18. ^ Felthouse v Bindley [1862] 142 ER 1037 BAILII; see also Carlill v Carbolic Smoke Ball Company [1893] 1 QB 256 BaiLII
  19. ^ See Ex parte Fealey (1897) 18 LR (NSW) L 282, SC(NSW), Full Court (defendant’s order for insertion of half inch advertisement in the plaintiff’s newspaper accepted by inserting one inch advertisement the rate for which was the same as for half inch advertisement).
  20. ^ See Goldsbrough, Mort & Co Ltd v Quinn (1910) 10 CLR 674 AustLII
  21. ^ See Tallerman & Co Ltd v Nathan’s Merchandise (Vic) Pty Ltd [1957] HCA 10 Austlii
  22. ^ Reese Bros Plastics Ltd v Hamon-Sobelco Australia Pty Ltd (1988) 5 BPR 11, 106; see also Olivaylle Pty Ltd v Flottweg AG (No 4) (2009) 255 ALR 632 [25] AustLii.
  23. ^ See, for example, Electronic Transactions Act 1999 (Cth) AustLii; Electronic Transactions Act 2000 (NSW) AustLii.
  24. ^ Greig and Davis, The Law of Contract (1987) at 246.
  25. ^ See e.g. Meates v Attorney General [1983] NZLR 308.
  26. ^ Brambles Holdings Limited v Bathurst City Council [2001] NSWCA 61
  27. ^ [1983] NZLR 308, 377.
  28. ^ See Australian Woollen Mills Pty Ltd v Commonwealth (1954) 92 CLR 424 (which held that there must be a relation of Quid Pro Quo) AustLII; See also Beaton v McDivitt (1987) 13 NSWLR 162 LexisNexisAU
  29. ^ For the definition of Consideration in English Law, see Currie v Misa (1875) LR 10 Ex 153 per Lush J at p. 162; (1875-76) LR 1 App Cas 554. Woolworths Ltd v Kelly [No2] [1991] NSWCA 287
  30. ^ Woolworths Ltd v Kelly [No 2] [1991] NSWCA 287 NSW Caselaw
  31. ^ DIRECTOR OF PUBLIC PROSECUTIONS (VIC) v LE - (2007) 240 ALR 204
  32. ^ Australian Woollen Mills v Commonwealth (1955) 93 CLR 546 AustLii
  33. ^ Coulls v Bagot's Executor & Trustee Co Ltd (1967) 119 CLR 460 AustLII
  34. ^ Roscorla v Thomas (1842) 3 QB 234; See also Williams v Roffey Brothers & Nicholls Ltd [1989] EWCA Civ 5 Bailii; See also Pao On v Lau Yiu Long [1980] AC 614 Bailii
  35. ^ Stewart v Casey [1892] 1 Ch 104
  36. ^ see Placer Development Ltd v Commonwealth [1969] HCA 29.; See also Godecke v Kirwan (1973) 129 CLR 629 [1]; See also Biotechnology Australia Pty Ltd v Pace (1988) 15 NSWLR 130 NetK
  37. ^ Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597, <http://www.austlii.edu.au/au/cases/cth/HCA/1964/41.html>;see also Placer Development Ltd v Commonwealth [1969] HCA 29; (1969) 121 CLR 353 (27 June 1969)AUSTLII; see also Foakes v Beer [1884] UKHL 1 (16 May 1884) BAILII
  38. ^ Thorby v Goldberg [1964] HCA 41; (1964) 112 CLR 597, <http://www.austlii.edu.au/au/cases/cth/HCA/1964/41.html>.
  39. ^ See Godecke v Kirwan(1973) 129 CLR 629
  40. ^ Blomley v Ryan [1956] HCA 81; (1956) 99 CLR 362 (28 March 1956) [2]
  41. ^ Gibbons v Wright [1954] HCA 17; (1954) 91 CLR 423 (23 April 1954) [3]
  42. ^ Hart v O'Connor [1985] AC 1000 at 1018–1019. or Johnson v Buttress [1936] HCA 41 [4]; see also, "Contracts Review Act 1980" (NSW) s9; see also Minors (Property and Contracts) Act 1970 s17 AUSTLII
  43. ^ Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 [5]
  44. ^ Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95
  45. ^ Helmos Enterprises Pty Ltd v Jaylor Pty Ltd [2005] NSWCA 235 [6]
  46. ^ Ermogenous v Greek Orthodox Community of SA Inc (2002) 209 CLR 95 AUSTLII; see also Nowland v Maiolla; Casbee Properties Pty Ltd v Eastwood Air Conditioning Pty Ltd [2013] NSWSC 980 AUSTLII
  47. ^ "Masters v Cameron [1954] HCA 72 [7]
  48. ^ Baulkham Hills Private Hospital v GR Securities (1986) 40 NSWLR 622 [8]
  49. ^ "Masters v Cameron [1954] HCA 72 AUSTLII
  50. ^ Conveyancing Act 1919 (NSW) s23C http://www.austlii.edu.au/au/legis/nsw/consol_act/ca1919141/s23c.html
  51. ^ "Whitlock v Brew (1968) 118 CLR 445 HCA 71 AUSTLII , see also Upper Hunter County District Council v Australian Chilling & Freezing Co Ltd [1968] HCA 8; (1968) 118 CLR 429 (8 March 1968) AustLII
  52. ^ The categories of uncertainty, incompleteness and illusory promises are not always clearly distinguished and often overlap. See for example G Scammell & Nephew Ltd v Ouston [1941] AC 251; [1941] 1 All ER 14.
  53. ^ Booker Industries Pty Ltd v Wilson Parking (Qld) Pty Ltd (1982) 149 CLR 600, 604; see also Thorby v Goldberg (1964) 112 CLR 597, 607. AustLII
  54. ^ Whitlock v Brew [1968] HCA 71; See also United Group Rail Services Limited v Rail Corporation New South Wales [2009] NSWCA 177 AustLII
  55. ^ Placer Development Ltd v Commonwealth [1969] HCA 29; (1969) 121 CLR 353.
  56. ^ Meehan v Jones [1982] HCA 52. Retrieved 21 January 2015.
  57. ^ [9] MacRobertson Miller Airline Services v Commissioner of State Taxation (WA) (1975) 133 CLR 125.
  58. ^ [10] Godecke v Kirwan [1973] HCA 38; (1973) 129 CLR 629. Retrieved 3 March 2016.
  59. ^ Compare Biotechnology Australia Pty Ltd v Pace [1988] 15 NSWLR 130. and Hall v Busst (1960) 104 CLR 206.
  60. ^ See Meehan v Jones (1982) 149 CLR 571 at 589; 42 ALR 463 at 473 per Mason J (traditional doctrine that courts should adopt a construction which will preserve the validity of the contract);See also, Milne v Attorney-General (Tas) [1956] HCA 48 AustLII.
  61. ^ See F & G Sykes (Wessex) Ltd v Fine Fare Ltd [1967] 1 Lloyd’s Rep 53 at 57 per Lord Denning MR.
  62. ^ See generally Prints for Pleasure Ltd v Oswald-Sealy (Overseas) Ltd [1968] 3 NSWR 761 at 765-6.
  63. ^ See Oceanic Sun Line Shipping Company Inc v Fay [1988] HCA 32 AustLii; see also Balmain New Ferry Co Ltd v Robertson [1906] HCA 83 stem=0&synonyms=0&query=title(Balmain%20New%20Ferry%20Co%20Ltd%20and%20Robertson%20) Austlii; see also Thornton v Shoe Lane Parking Pty Ltd [1971] 2 QB 163 Bailii; see also Baltic Shipping Company v Dillon [1993] HCA 4 [11]
  64. ^ See Hoyt's Pty Ltd v Spencer (1919) 27 CLR 133, 143.
  65. ^ See Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407, [342].
  66. ^ State Rail Authority of NSW v Heath Outdoor Pty Ltd (1986) 7 NSWLR 170, 191.
  67. ^ See Equuscorp Pty Ltd v Glengallan Investments Pty Ltd [2004] HCA 55, [36].
  68. ^ See JJ Savage and Sons Pty Ltd v Blakney (1970) 119 CLR 435, [11].
  69. ^ Bae Systems Australia Ltd v Cubic Defence New Zealand Ltd [2011] FCA 1434 AustLii
  70. ^ J J Savage & Sons Pty Ltd v Blakney [1970] HCA 6 AustLii
  71. ^ See Mason J in Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 at p 345.
  72. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337; See also Byrne v Australian Airlines Ltd [1995] HCA 24 AustLII
  73. ^ BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994) 180 CLR 266 (27 July 1977); see also Byrne v Australian Airlines Ltd [1995] HCA 24 [12]
  74. ^ BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994) 180 CLR 266 (27 July 1977)
  75. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24; (1982) 149 CLR 337 (11 May 1982)
  76. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 AustLII; See also Byrne v Australian Airlines Ltd [1995] HCA 24 AustLII
  77. ^ The Moorcock (1889) 14 PD 64; See also BP Refinery (Westernport) Pty Ltd v Hastings Shire Council (1977) 180 CLR 266 Austlii
  78. ^ Breen v Williams ("Medical Records Access case") [1996] HCA 57; (1996) 186 CLR 71 (6 September 1996); See also Hawkins v Clayton [1983] HCA 11; (1983) 152 CLR 406 AustLII
  79. ^ Southern Foundries (1926) Ltd v Shirlaw[1940]Law Reports [1940] AC 701; see also Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24 AustLII; see also Gwam Investments Pty Ltd & Ors v Outback Health Screenings Pty Ltd [2010] SASC 37 (25 February 2010) AustLII
  80. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) HCA 24; (1982) 149 CLR 337 (11 May 1982)
  81. ^ Ansett Transport Industries (Operations) Pty Ltd v Commonwealth [1977 HCA 71; (1977) 139 CLR 54 (23 December 1977)
  82. ^ BP Refinery (Westernport) Pty Ltd v Hastings Shire [1977] UKPCHCA 1; (1994) 180 CLR 266 (27 July 1977)
  83. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982 HCA 24; (1982) 149 CLR 337 (11 May 1982); Byrne v Australian Airlines Ltd [1995 HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995); Hospital Products Ltd v United States Surgical Corporation [1984 HCA 64; (1984) 156 CLR 41 (25 October 1984); see also Secured Income Real Estate (Australia) Ltd v St Martins Investments Pty Ltd (1979) 144 CLR 596 (12 October 1979) AustLII
  84. ^ Hawkins v Clayton [1988] HCA 15 AUSTLI; see also Byrne v Australian Airlines Ltd [1995] HCA 24 [13]
  85. ^ Hospital Products Ltd v United States Surgical Corporation [1984 HCA 64; (1984) 156 CLR 41 (25 October 1984); Hawkins v Clayton [1988 HCA 15; (1988) 164 CLR 539 (8 April 1988); see also Byrne v Australian Airlines Ltd [1995] HCA 24
  86. ^ Hawkins v Clayton [1988 HCA 15; (1988) 164 CLR 539 (8 April 1988)
  87. ^ Byrne v Australian Airlines Ltd [1995 HCA 24; (1995) 131 ALR 422; (1995) 69 ALJR 797; (1995) 185 CLR 410 (11 October 1995)
  88. ^ See Byrne v Australian Airlines Ltd [1995] HCA 24 AustLII
  89. ^ See also University of Western Australia v Gray [2009] FCAFC 116 AustLII
  90. ^ See also the necessity rule in "Liverpool City Council v Irwin" [1977] AC 239 [14]
  91. ^ See also the English Case Liverpool City Council v Irwin[1977] AC 239 BaiLII
  92. ^ See also ″BP Refinery (Westernport)Pty Ltd v Hastings Shire″ [1977] UKPCHCA 1 AustLII
  93. ^ See Byrne v Australian Airlines Ltd [1995] HCA 24 AustLII and the English Case Liverpool City Council v Irwin[1977] AC 239 BaiLII
  94. ^ University of Western Australia v Gray [2009] FCAFC 116 [136]
  95. ^ University of Western Australia v Gray [2009] FCAFC 116 [187]
  96. ^ University of Western Australia v Gray [2009] FCAFC 116 [142]
  97. ^ Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 AustLii; See also Byrne v Australian Airlines [1995]
  98. ^ See Con-Stan Industries v Norwich Winterthur Insurance (Aust) Ltd (1986) 160 CLR 226; (1986) 64 ALR 481; [1986] HCA 14; See also Dahl v Nelson (1881) 6 App Cas 38; See also "University of Western Australia v Gray (No 25)" [2009] FCA 1227 AustLII
  99. ^ "Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd" [1986] HCA 14; (1986) 160 CLR 226 [15]; See also "Majeau Carrying Co Pty Ltd v Coastal Rutile Ltd" (1973) 129 CLR 48 at 61; See also "Thornley v Tilley" (1925) 36 CLR 1 at 8 [16]
  100. ^ "Goodman Fielder Consumer v Cospak International [2004] NSWSC 704 (6 August 2004) at 64 [17]
  101. ^ Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd [1986] HCA 14; (1986) 160 CLR 226 AustLii
  102. ^ "Con-Stan Industries of Australia Pty Ltd v Norwich Winterthur Insurance (Australia) Ltd" [1986] HCA 14 AustLii
  103. ^ Codelfa Construction Pty Ltd v State Rail Authority of NSW [1982] HCA 24;(1982) 149 CLR 337 [18]
  104. ^ Mount Bruce Mining Pty Limited v Wright Prospecting Pty Limited [2015] HCA 37
  105. ^ Royal Botanic Gardens and Domain Trust v South Sydney Council (2002) 186 ALR 289 [19]; see also Codelfa Construction Pty Ltd v State Rail Authority of NSW (1982) 149 CLR 337 [20]; see also International Air Transport Association v Ansett Australia Holdings Ltd [2008] HCA 3 (6 February 2008) AustLII; see also Electricity Generation Corporation v Woodside Energy Ltd [2014] HCA 7 (5 March 2014) AustlII
  106. ^ See Australian Broadcasting Commission v Australiasian Performing Right Association Ltd (1973) 129 CLR 99, 108 AU AustLII
  107. ^ Pacific Carriers Ltd v BNP Paribas [2004] 218 CLR 451 [21] see also Mount Bruce Mining Pty Ltd v Wright Prospecting Pty Ltd [2015] HCA 37 [22]
  108. ^ See Western Export Services Inc v Jireh International Pty Ltd [2011] HCA 45
  109. ^ L'Estrange v F Graucob [1934] 2 KB 294
  110. ^ Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165; See also L'Estrange v F Graucob Ltd [1934] 2 KB 394; See also "When is a Signed Document Contractual? - Taking the 'Fun' out of the 'Funfair'" Austlii; See also Curtis v Chemical Cleaning & Dyeing Co [1951] 1 KB 805, 808 LexisNexis; See also Franklins Pty Ltd v Metcash Trading Ltd (2009) 76 NSWLR 603 AustLii
  111. ^ AustLII, Phillip --- "Revisiting the Rule in L'Estrange v F Graucob Ltd" [2005] BondLawRw 17
  112. ^ D J Hill Co Pty Ltd v Walter H Wright Pty Ltd [1971] VR 749 AustLII; See also Petelin v Cullen (1975) 132 CLR 355 AustlII; See also Curtis v Chemical Cleaning & Dyeing Co[1951] 1 KB 805
  113. ^ Toll (FGCT) Pty Ltd v Alphapharm (2004) 219 CLR 165
  114. ^ Pastoral Company Pty Ltd v First Chicago Australia Ltd [1978] HCA 42; (1978) 139 CLR 410 (2 November 1978) see also Fitzgerald v F J Leonhardt Pty Ltd [1997] HCA 17; (1997) 189 CLR 215(13 May 1997) AustlII
  115. ^ Yango Pastoral Co Pty Ltd v First Chicago Australia Ltd (1978) 139 CLR 410 AUSTLII
  116. ^ See Abdurahman v Field (1987) 8 NSWLR 159
  117. ^ Equuscorp Pty Ltd v Cunningham's Warehouse Sales Pty Ltd [2012] HCA 7; See also Yerkey v Jones [1939] HCA 3; (1939) 63 CLR 649 (6 March 1939) AustLII
  118. ^ See David Securities Pty Ltd v Commonwealth Bank of Australia (1992) 175 CLR 353 AUSTLII; see also Clegg v Wilson (1932) 32 SR (NSW) 109 AUSTLII
  119. ^ See Equuscorp Pty Ltd v Wilmoth Field Warne [2007] VSCA 280; see also Legione v Hateley (1983) 152 CLR 406 [23]
  120. ^ See Brown v Smitt (1924) 34 CLR 160
  121. ^ Pan Foods Company Importers & Distributors Pty Ltd v Australia and New Zealand Banking Group Ltd [2000] HCA 20. Austlii
  122. ^ Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1956) 98 CLR 93. Austlii
  123. ^ "Wallace-Smith v Thiess Infraco (Swanston) Pty Ltd" [2005] FCAFC 49, (2005) 218 ALR 1. [24]
  124. ^ "Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1956) 98 CLR 93. Austlii
  125. ^ Tallerman & Co Pty Ltd v Nathan’s Merchandise (Vic) Pty Ltd (1956) 98 CLR 93. Austlii
  126. ^ Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd (1938) SR (NSW) 632, 641-2 Austlii
  127. ^ "Hong Kong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26. BAILII
  128. ^ Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited [2007] HCA 61. AustLII
  129. ^ Hongkong Fir Shipping Co Ltd v Kawasaki Kisen Kaisha Ltd [1962] 2 QB 26. [25]
  130. ^ Tramways Advertising Pty Ltd v Luna Park (NSW) Ltd [1938] NSWStRp 37. Austlii
  131. ^ Associated Newspapers Ltd v Bancks (1951) 83 CLR 322. Austlii
  132. ^ Ankar v National Westminster Finance. (1987) 162 CLR 549. Austlii
  133. ^ Perri v Coolangatta Investments Proprietary Limited (1982) 149 CLR 537. Austlii; Meehan v Jones (1982) 149 CLR 571. Austlii
  134. ^ Perri v Coolangatta Investments Proprietary Limited (1982) 149 CLR 537. Austlii
  135. ^ "Meehan v Jones (1982) 149 CLR 571, AustLII".
  136. ^ Koompahtoo Local Aboriginal Land Council v Sanpine Pty Limited 2007 HCA 61 [26]
  137. ^ Carr v JA Berriman (1953) 89 CLR 327. Austlii
  138. ^ Universal Cargo v Citati [1957] 2 QB 401.
  139. ^ Progressive Mailing House Pty Ltd v Tabali Pty Ltd (1985) 157 CLR 17; AustLII
  140. ^ Shevill v Builders Licensing Board. (1982) 149 CLR 620. AustLii
  141. ^ Shevill v Builders Licensing Board. (1982) 149 CLR 620. AustLii
  142. ^ Codelfa Construction v State Rail Authority of New South Wales [1982] HCA 24;(1982) 149 CLR 337 AustLII; see also Davis Contractors v Fareham [1956] UKHL 3; AC 696 BAILII
  143. ^ [27] Ringstad v Gollin & Company Pty Ltd [1924] HCA 57; (1924) 35 CLR 303 (19 December 1924), see also Canning v Temby (1905)HCA 45 Austlii
  144. ^ Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143 (1 November 1979) AustLII
  145. ^ [1982] HCA 24 see also National Carriers v Panalpina; ; see also Brisbane City Council v Group Projects Pty Ltd [1979] HCA 54; (1979) 145 CLR 143 [28]
  146. ^ Exposito v Bowden (1855) 119 ER 359.
  147. ^ Taylor v Caldwell [1863] 122 ER 309 BAILII see also Krell v Henry [1903] 2 KB 140 Incorporated Council of Law Reporting
  148. ^ Horlock v Beal; Codelfa v SRA; Brisbane CC v Group Projects
  149. ^ Krell v Henry
  150. ^ Metropolitan Water Board v Dick Kerr & Co
  151. ^ Frustrated Contracts Act 1978 (NSW).
  152. ^ Louinder v Leis [1982]HCA 28; (1982) 149 CLR 509 AustLii; see also Laurinda v Capalaba Park Shopping Centre [1989] HCA 23; (1989) 166 CLR 623 AustLII
  153. ^ Laurinda v Capalaba Park Shopping Centre[1989] HCA 23; (1989) 166 CLR 623 AustLII; see also Foran v Wight [1989] HCA 51; (1989) 168 CLR 385 AustLII; see also Louinder v Leis (1982) 149 CLR 509
  154. ^ "Queensland Consolidated Acts - Sale of Goods Act 1896". AUSTLII. Australasian Legal Information Institute. Retrieved 14 October 2015.
  155. ^ "SALE OF GOODS ACT 1896 - SECT 17 Implied conditions as to quality or fitness". AUSTLII. Australasian Legal Information Institute.
  156. ^ Competition and Consumer Law 2010 (Cth)' Schedule 2' Austlii
  157. ^ For an explanation of what is considered to be within trade or commerce for the purposes of the Australian Consumer Law see, for example, Concrete Constructions (NSW)Pty Ltd v Nelson [1990] HCA 17; see also Google Inc v ACCC [2012] HCAASP 42 Austlii
  158. ^ MK & JA Roche v Metro Edgley Pty Ltd [2005] NSWCA 39 Austlii see also Waltons Stores (Interstate) Ltd v Maher [1988] HCA 7 [29]
  159. ^ see also Alati v Kruger [1955] HCA 64 AustLII
  160. ^ see also Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 AustLII
  161. ^ see Petelin v Cullen (1975) 132 CLR 355 AustLII
  162. ^ see Fitzpatrick v Michel (1928) 28 SR (NSW) 285, 288-9 AustLII
  163. ^ see Public Trustee v Taylor [1978] VicRp 31 AustLII
  164. ^ see McKenzie v McDonald [1927] VicLawRp 19 [30]
  165. ^ "Taylor v Johnson (1983) 151 CLR 422".; see also "Franklins Pty Ltd v Metcash Trading Ltd [2009] NSWCA 407".
  166. ^ 4 See McRae v Commonwealth Disposals Commission (1951) 84 CLR 377 Austlii
  167. ^ Blomley v Ryan (1956) 99 CLR 362 AustLII; see also Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 (2 December 1992) AustLII
  168. ^ "Garcia v National Australia Bank Ltd (1998) 155 ALR 614".
  169. ^ see also; Giumelli v Giumelli [1999] HCA 10 Austlii
  170. ^ Dilwyn v Llewelyn [1862] EWHC Ch J67 (12 July 1862) Bailii; see also Taylor v Johnson [1983] HCA 5 AustLII & McRae v. Commonwealth Disposals Commission (1951) 84 CLR 377 AustLII
  171. ^ Nelson v Nelson (1995) 184 CLR 538
  172. ^ Alati v Kruger (1955) 94 CLR 216
  173. ^ Commonwealth v Verwayen (1990) 170 CLR 394 AustLII
  174. ^ Commercial Bank of Australia Ltd v Amadio [1983] HCA 14 AUSTLII; See also Blomley v Ryan (1956) 99 CLR 362; See also Kakavas v Crown Melbourne Limited [2013] HCA 25 AustLii; See also Bridgewater v Leahy [1998] 194 CLR 457; See also Louth v Diprose [1992] HCA 61; (1992) 175 CLR 621 Austlii; See also "Blomley v Ryan" [1956] 99 CLR 362 Austlii; See also Australian Competition and Consumer Commission v Lux Distributors Pty Ltd [2013] FCAFC 90 Austlii; See also Australian Competition & Consumer Commission v Radio Rentals [2005] FCA 1133 AustLii; See also Australian Competition and Consumer Commission v Samton Holdings Pty Ltd [2002] FCA 62 AustLII

External links

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