Criminal Liability Someone does something that causes harm to other person, harmful act = crime. Incur criminal liability. Crime: harmful act or omission that will lead to the state commencing criminal proceedings and seeking to have offender punished. Lead to prosecution Prosecution: legal proceedings brought by the state against a person accused of having committed a crime ; criminal action

Tortious Liability Tort: harmful act, other than breach of contract, giving the victim the right to sue for compensation, e.g. trespass, negligence, defamation, and nuisance Tort = civil wrong ; act that causes harm to another person and gives that person the right to commence litigation to recover compensation/civil remedies

Tortious liabilityCriminal liability

ObjectiveRemedyPunishment

Action commenced byPlaintiff (Victim) Crown (State)

Standard of proof Balance of probabilities Beyond all reasonable doubt

OutcomeWin or lose Guilty or not guilty

A harmful act may be both a crime and a tort Tort law is primarily case law

Contractual Liability Contract: agreement between 2 or more persons that is legally enforceable Primarily concerned with provision of remedy to the victim. Contractual liability only arises if contract exists between the plaintiff and the defendant

Statutory Liability Harmful act, in addition to being a crime/tort/breach of contract may contravene 1 or more statutes Statutes: law made by parliament ; legislation or act of parliament Vicarious liability Liability for the conduct of another Arises most frequently within relationship of employer & employee If employee undertaking AUTHORISED work in an unauthorised or wrongful manner, employer vicariously liable (Century Insurance Co Ltd v Northern Ireland Road Transport Board). However if employee is acting outside scope of their employment, employer not vicariously liable (Deatons Pty Ltd v Flew). Employer not vicariously liable for conduct of independent contractor Independent contractor: person contracted to provide services, but not an employee

Deliberately causing harm to person or property

Criminal liability Criminal offences include: Offences against a person, e.g. murder, manslaughter, assault, sexual offences & kidnapping Offences against property, e.g. stealing, robbery, burglary, forgery & corporate crime Offences against public order, e.g. treason & sedition Offences against administration of the law and public authority, e.g. perjury & destroying evidence

Indictable offence Serious criminal offence, e.g. murder, manslaughter, rape or robbery Committal proceeding: preliminary proceeding held in a lower court to determine if there is sufficient evidence to justify full criminal trial, if yes proceed to higher court before judge & jury

Summary offence Less serious criminal offence, e.g. common assault, traffic offence, being drunk & disorderly Tried before a magistrate

Criminal guilt Person cannot be found guilty of crime unless these can be established: a wrongful act (actus reus) a guilty mind ; intention & foresight, knowledge or awareness (mens rea)

Criminal defences Burden of proof is on the Crown (state) Defences include: Self-defence: Under appropriate circumstances, use of force can be used in self-defence or in the defence of another person/property. Force must be reasonable & not excessive. Not available if defendant acted after danger has passed/motivated by revenge Insanity: Argue some form of mental illness meant that they were unable to form the requisite criminal intention. If not found not guilty on grounds of insanity, may be held in custody at psychiatric institution, only released when no longer mental ill Etc. (Pg. 170-171)

Tort of trespass Trespass: tort committed when 1 person interferes directly with the person/property (real or personal) of another Includes: Trespass to land Trespass to goods Trespass to the person Actionable per se, no need for plaintiff to prove actual loss/damage to commence civil action. Necessary to prove interference was intentional/negligent, not accident (Stanley v Powell).

Trespass to land Tort committed when 1 person interferes directly with land in the rightful possession of another Committed if: X interferes with Ys exclusive possession of land Xs interference is direct Xs interference is either intentional or negligent No consent by Y or lawful justification for interference Does not have to have physical contact with land; interference with airspace above land will result in trespass (Kelsen v Imperial Tobacco co). Not only owner has right to sue others, as long tenant in rightful possession of land can sue for trespass of land, including the owner if enter without lawful excuse/permission (Gifford v Dent). Person not invited to property, may not be trespasser. If path or driveway leading to entrance of building is unobstructed, entrance gates unlocked, no sign or other indication that visitors are forbidden entry, there is implied grant of permission by occupier of property in favour of members of the public to use/communicate with patch or make a delivery to a person in the building (Halliday v Nevill).

Trespass to goods Tort committed when 1 person interferes directly with personal property of another As long as plaintiff have rightful possession of goods, does not have to be owner Committed if: X interferes with Ys possession of goods Xs interferences is direct Xs interference is wither intentional or negligent No consent by Y or lawful justification for the interference Conversion tort committed when 1 person wrongfully deals with the goods of another in a way that is inconsistent with their ownership or rightful possession intentional and not merely negligent occurs when defendant wrongfully takes goods belonging to plaintiff with the intention of keeping them occurs when defendant has possession of plaintiff goods but does something with it without plaintiffs permission (Hollins v Fowler) & (Penfolds Wines Pty Ltd v Elliott) ,etc. (pg.174 footnotes) Detinue Tort committed then 1 person wrongfully detains goods of another Occurs if defendant rightfully has possession of plaintiffs goods but when plaintiff demands that they return the goods, defendant unreasonably refuses to do so Includes negligence and intentional

Trespass to the person Tort committed when 1 person interferes directly with the person of another Intentional or negligent interference with the person of the plaintiff 3 forms of trespass to the person includes: Battery Assault False imprisonment Battery Tort committed when 1 person unlawfully applies force to another person Intentional or negligent conduct, directly causes contact with the body of the plaintiff without their consent/lawful justification However, certain level of physical contact is unavoidable element of daily life (Collins v Wilcock) Some level of physical contact, e.g. to get attention, was generally acceptable in daily life (Rixon v Star City Pty Ltd). People who participate in contact sports are deemed to have consented to physical contact within rules of the game Committed if: X causes some sort of physical interference with the body of Y Xs act is direct Xs act is either intentional or negligent No consent by Y or lawful justification for Xs act Assault tort committed when 1 person unlawfully threatens another with imminent physical harm so long defendant causes plaintiff to reasonably believe that they are about to be subjected to a battery, defendant commits tort of assault No physical contact needs to occur; threat of physical contact enough (Stephens v Myer). However if defendant accompanies threatening gesture with words that make it clear that the plaintiff is in no imminent danger (Tuberville v Savage) If defendant makes threat conditional upon plaintiff complying with defendants demand, tort is committed (Rozsa v Samuels) Committed if: X causes Y to develop a reasonable apprehension of imminent physical contact Xs act is direct Xs act is either intentional or negligent No consent by Y or lawful justification for the act

False imprisonment Tort committed when 1 person unlawfully deprives another of their freedom of movement Total deprivation of plaintiffs freedom of movement without consent or lawful justification Not necessary for direct physical interference, but have no reasonable means of escape (Burton v Davies) Restraint can be psychological (Symes v Mahon) Not false imprisonment if plaintiff has consented to being detained Committed if: X causes Y to be totally restrained Xs act is direct Xs act is either intentional or negligent No consent by Y or lawful justification for the act

Defences (Tort of trespass) Accident The interference was neither intentional nor negligent (Stanley v Powell) Consent The plaintiff has either expressly or by implication voluntarily consented to the trespass (McNamara v Duncan) Necessity The trespass was necessary to protect life, land or goods from imminent and real harm (Wilson v Pringle) (Southwark LBC v Williams) Homelessness X recognised as a defence to trespass Self-defence The trespass (usually to the person) was reasonably necessary to protect the defendant or another from imminent physical aggression by the plaintiff, and was proportionate to the threat (Fotin v Katapodis) Defence of property The trespass (usually to the person) was reasonably necessary to protect the defendants land or goods from imminent harm by the plaintiff and was proportionate to the threat (Norton v Hoare)

Tort of Nuisance Tort committed when 1 person indirectly interferes with another persons use and enjoyment of private or public land Nuisance: act by the defendant that indirectly interferes with plaintiffs use and enjoyment of private or public land 2 forms of nuisance Private nuisance Public nuisance Nuisance = indirect interference with plaintiffs use and enjoyment of land Trespass to land = direct interference with land in possession of plaintiff

Private nuisance Tort committed when 1 person indirectly interferes with another persons use and enjoyment of PRIVATE land Interference does not need to be committed from defendants land; can be committed from the street or airspace above land Committed if: X interferes with Ys use and enjoyment of private land Y has an interest in that land (Owner or tenant) Y suffers actual harm or damage Xs interference is indirect Xs interference is wither intentional or reckless Xs interference is sustained and unreasonable E.g. Destruction of plaintiffs vegetation by noxious fumes (St Helens Smelting Co v Tipping) Blocking of a watercourse causing flooding to plaintiffs property (Thorpes Ltd v Grant Pastoral Co Pty Ltd) Etc. (pg. 177)

Public nuisance tort committed when 1 person indirectly interferes with another persons use and enjoyment of public land entitled to bring legal action against defendant for public nuisance if can show they suffered loss over and above loss caused to members of the public generally (Walsh v Ervin) More likely to lead to prosecution under criminal law or proceedings brought by Attorney-General on behalf of community Committed if: X interferes with Ys use and enjoyment of public land Y suffers actual harm or damage over and above that suffered by members of the public generally X interference is indirect Xs interference is either intentional or reckless Xs interference is sustained and unreasonable Interference = unreasonable when something is done by the defendant which is unnecessary for the conduct of their business; when defendants business premises are inadequate or unsuitable to hold crowds; or defendant failed to use reasonable means to minimise/prevent damage to plaintiff (Silservice v Supreme Bread Pty Ltd)

Defences (Tort of nuisance)

Consent by the plaintiff plaintiff consented to the nuisance, either expressly or by implication (Kiddle v City Business Properties Ltd) Statutory authority legislation exists that permits defendant to engage in the harmful conduct (Cohen v City of Perth) Contributory negligence harm suffered by plaintiff was at least partially the result of the plaintiffs own carelessness

Tort of Defamation

Tort committed when 1 person publishes to a 3rd party, in a spoken or written form, a statement about another person that would damage the reputation of that person Committed if: X makes a statement about Y that is defamatory Statement identifies Y Statement is published to someone other than Y Plaintiff MUST establish 3 things to bring action against defendant (Defamation Act 2005 (Vic)): Defendants statement about plaintiff was defamatory Defendants statement identified the plaintiff Defendants statement was published to a 3rd party Only living plaintiff can sue for defamation Corporation can sue for defamation if: Not-for-profit organisation Fewer than 10 employees Defendants statement about plaintiff was defamatory Interpreted by courts as: Makes ordinary people think les of the plaintiff Causes people to shun or ridicule the plaintiff Causes the plaintiff to be excluded from society Defamatory imputation may be expressed clearly in statement OR implied by innuendo (Bjelke-Peterson v Warburton) Defendants intended meaning = irrelevant; court decides if statement capable of being defamatory according to its ordinary & natural meaning (a question on law), and then decides in the circumstances was in fact defamatory (a question of fact).

Defendants statement identified the plaintiff Defendants statement MUST identify the plaintiff Not necessary for plaintiff to be named, so long can be reasonably identified as referring to the plaintiff If entire class of persons has been defamed, e.g. all lawyers are thieves then an individual who is a member of that class cannot sue Unless class with limited membership, e.g. all lawyers in this law firm are thieves then may be able to sue

Defendants statement was published to a 3rd party Simply means communicated to someone other than the plaintiff Defamation proceedings can be brought against original publisher and anybody who published or republishes defamatory material (John Fairfax Productions Ltd v Rivkin)

Defences (Tort of Defamation) Justification Statement about plaintiff is substantially true (Defamation Act 2005 (Vic)) Contextual truth Defamatory statement carried, in addition to the defamatory meanings about the plaintiff, one or more other meanings that are substantially true, and that the defamatory meanings did not do any further harm to the reputation of the plaintiff because of the substantial truth and other meanings (Defamation Act 2005 (Vic)) Etc. (pg.180-181)

Tort of Negligence Tort committed when 1 person fails to exercise reasonable care and causes harm to another person To succeed plaintiff must establish 3 things on balance of probabilities: Defendant owed the plaintiff a duty of care Defendant breached that duty of care Defendants breach caused the plaintiff to suffer harm Committed if: X owes Y a duty of care X breaches the duty of care Xs breach causes Y to suffer reasonably foreseeable harm

Defendant owed the plaintiff a duty of care Well established duty of care (DOC): Motorist owe DOC to other road users (Imbree v McNeily) Doctors owe DOC to their patients (Rogers v Whitaker) Solicitors owe DOC to their clients (Hawkins v Clayton) Manufactures owe DOC to people who use their products (Donoghue v Stevenson) Occupiers owe DOC to people who come onto their premises (Australian Safeway Stores Pty Ltd v Zaluzna) Architects owe DOC to people who occupy the buildings they design (Voil v Inglewood Shire Council) Etc. (Pg. 185) Reasonable foreseeability (ONLY IF NO WELL ESTABLISHED DOC AS ABOVE) To establish DOC, must be shown at time of incident, that it was reasonably foreseeable that defendants conduct could cause harm to someone in the plaintiffs position (neighbour principle) If not reasonably foreseeable, no DOC established (Bourhill v Young) Not necessary to show defendant foresaw their conduct could harm plaintiff Only reasonable person in the defendants situatuin would have foreseen the possibility of harm (Champan v Hearse)

Salient features of the case Plaintiff must show salient (relevant) features of the case are consistent with the existence of a duty of care Means: courts will consider relationships between parties and other features of the case and then compare those features with the relevant features of other cases where a DOC have been found to exist Cases: (Sullivan v Moody), (Tame v New South Wales) Etc. (pg. 187-188)

Defendant breached that duty of care Must establish defendant have breached DOC they owed to plaintiff Was risk of harm foreseeable & significant? Failed to do what a reasonable person would have done in the same circumstances?

Identifying a breach of duty Under common law, does not breach DOC unless fail reasonable person test The risk was foreseeable: To establish the existence of DOC, its necessary to show that the plaintiff being affected by defendants conduct was foreseeable. To establish breach of DOC, must show that risk was foreseeable, else defendant has not breach DOC The risk was not insignificant: If insignificant, defendant has not breached duty of care by failing to take precautions Person failed to do what a reasonable person would have done: Court will take into account of probability of harm, the likely seriousness of the harm, the burden of taking precautions, and social utility of defendants activity Probability of harm: Low risk (Bolton v Stone) Obvious risk (Woods v Multi-Sport Holdings Pty Ltd) Likely seriousness of the harm: Harm seriousness low, owe lower DOC Harm very serious, owe higher DOC (Paris v Stepney Borough Council) The burden of taking precautions: Defendant could avoid risk of injury by taking simple precautions; breach DOC Defendant could only avoid risk by taking significant, expensive, and onerous precautions; less likely to breach DOC (Latimer v AEC Ltd) Social utility of activity: Defendants activity socially useful? (Watt v Hertfordshire County Council) Lower duty of care Court may decide that defendant less likely to have breached their DOC because of: Their status as a minor (McHale v Watson) Their inexperience (Cook v Cook) Not applicable for drivers, unlicensed or licensed (Imbree v McNeilly) Higher standard of care If person = expert/professional, owe higher standard of care (non-delegable duty of care) E.g. medical specialist Some situations person will also have duty to ensure all reasonable care is taken non-delegable duty of care: cannot avoid liability by delegating responsibility to another person, although may not be vicariously liable [Independent contractor] (Kondis v State Transport Authority) Duty of employers to provide safe place to work = non-delegable duty of care E.g. hospital to patients, school to students, occupier in relation to things on their property and under their control that could cause harm to others Only extends to negligent acts, not intentionally harmful

Liability for failing to act No breach of DOC where physical harm or loss arises as a result from failure to act (pg. 196)

Defendants breach caused the plaintiff to suffer harm Court must be satisfied that: Breach of duty was necessary condition of the occurrence of the harm (factual causation) Appropriate for the scope of liability of the defendant to extend to the harm so caused (scope of liability) (Wrongs Act 1958)

Factual causation Defendant is only responsible for harm that was actually caused by their carelessness Did the careless act cause, indirectly or directly, the harm suffered by the plaintiff? But for test, break in the chain of causation? (Yates v Jones) Not necessary for plaintiff to establish that defendants carelessness was sole cause of harm, sufficient to show that the carelessness was a contributing cause (Cook v ACT Racing Club Incorporated and the Australian Jockey Club Inc)

Scope of liability Defendant is not liable for every consequence of their carelessness Was the ACTUAL harm suffered by the plaintiff reasonably foreseeable? If harm suffered is not reasonably foreseeable, defendant will not be liable for that harm (Overseas Tankship (UK) Ltd v Morts Dock & Engineering Co Ltd) Person who has breached DOC is not responsible for all of the harm caused by their breach, only those reasonably foreseeable and not too remote or farfetched (Rowe v McCartney) Eggshell skull rule: if plaintiff suffers greater than usual harm because of a pre-existing vulnerability, the defendant will nevertheless be liable for the full extent of that harm

Defences (Tort of Negligence) Voluntary assumption of risk civil defence; if can be established that plaintiff voluntarily assumed the risk of harm, defendant relieved of ALL liability Plaintiff had full knowledge and appreciation of the risk (Agar v Hyde) Plaintiff freely and willingly agreed to the precise risk that eventuated Plaintiff aware reasonably foreseeable harm inherent in the sport/activity only, not unreasonably foreseeable harm (Rootes v Sheltoon)

Contributory Negligence civil defence; if can be established that plaintiff contributed in some way to their own loss or injury, liability for negligence will be apportioned between the defendant and the plaintiff (Ingram v Britten) (Manley v Alexander) Plaintiff may be found completely responsible for their own injury (Wrongs Act 1958)

Other defences (Tort of Negligence) Barristers do not owe DOC in relation to work done in court or work intimately connected with work in court (DOrta-Ekenaike v Victoria Legal Aid) Volunteers (Commonwealth Volunteers Protection Act 2003 (Cth)) Emergency service providers Compliance with standard practise Court decides ApologyApplications

Occupiers liability Occupiers owe DOC to people who come onto their premises (Australian Safeway Stores Pty Ltd v Zaluzna) Occupier carelessness must be established (Phillips v Daly) (Modbury Triangle Shopping Centre Pty Ltd v Anzil) does not extend to prevent criminal conduct by 3rd parties Standard of care owed by occupier of commercial premises higher than occupier of residential premises (Neindorf v Junkovic) Occupiers owe DOC to trespassers (Hackshaw v Shaw)

Liability of public authorities Occupier of public area owe people DOC to warn of foreseeable risk to persons using the area as intended by public authority (Nagle v Rottnest Island Authority) If danger is obvious no DOC (Romeo v Conservation Commission of Northern Territory)

Bailment (pg. 206-207)Negligent Misstatement The giving of careless advice that leads to economic loss Defendant gives advice and owes duty of care if: Advice was of business or serious nature Defendant knew or should have known that the plaintiff intended to rely on the advice It was reasonable in the circumstances for the plaintiff intended to rely on the advice If 2 other elements of tort of negligence is also satisfied: Defendant breached duty of care by giving careless advice Breach of DOC caused harm to the plaintiff Defendant may owe DOC even if not professional adviser (Rentokil Pty Ltd v Channon), but not liable if has disclaimer (Hedley Byrne & Co Ltd v Heller and Partners Ltd) Even if advice is little more than provision of information (L Shaddock & Associates Pty Ltd v Parramatta City Council) Committed if: X gives Y business or serious advice X knows or should know that Y intends to rely on the advice It is reasonable in the circumstances for Y to rely on the advice Person giving advice may also be liable to not only the person being directly advised, but 3rd parties who rely on the advice. Only established DOC with 3rd parties if: (Esanda Finance Corporation Ltd v Peat Marwick Hungerfords) Defendant knew or should have known that the information or advice would be communicated by their client to the plaintiff Information/advice was likely to lead the plaintiff to enter into transaction of the kind the plaintiff in fact entered into Likely that the plaintiff would suffer economic loss if information or advice was wrong Owes DOC to 3rd parties if: X gives Y business or serious advice knowing Y will communicate that advice to Z Advice is likely to lead Z to enter into a particular type of transaction Likely that Z will suffer financial loss if they enter into that transaction and the advice was wrong)

Consequences of causing harm pg. 218-220Contract legally enforceable agreement 3 requirements to be legally enforceable: Agreement between 2 or more persons (parties) Both parties intend that agreement to be legally enforceable Both parties must pay a price or make a promise (consideration) Contracts do not need to be in writing

Agreement between 2 or more persons (parties)

Agreement: exists when 2 or more people share an understanding and intention Many are preceded by period of negotiations; Does not exist until negotiations concluded Sometimes existence of finalised agreement can be deduced from the conduct of the parties (Brogden v Metropolitan Railway Co). Formed only when: Offeror has made an offer Offeree has accepted the offer Offeree has communicated their acceptance to the offer to the offeror Offer: expression of willingness to enter into an enforceable relationship with the person whom the offer is directed Can be made in writing Verbally Indicated through conduct Depending on wording of offer, can be accepted by either first person to respond or by anyone from the group No limit to no. of people to whom an offer can be made, can be made to the world at large (Carhill v Carbolic Smoke Ball Co). If offer = accepted, an agreement comes into existence from that moment Offer can be = rejected by offeree If offer = not accepted nor rejected, can be revoked Can revoke offer even if promised to keep open for particular period (Dickinson v Dodds) Unless offeree has provided consideration to keep offer open, offer cannot be revoked (Goldsborough Mort & Co Ltd v Quinn) Creates separate contract; Option created Offer can lapse after the expiry of a reasonable amount of time, reasonable depends on circumstances (Ramsgate Victoria Hotel Co Ltd v Montefiore) Requests for information Different from making an offer; Response to a request for information unlikely to be seen as a offer (Harvey v Facey) Advertising = invitation to treat, unless worded specifically as an offer (Carhill v Carbolic Smoke Ball Co) Catalogues and price lists = invitation to treat (Patridge v Crittenden) Display of a product in window or shelves = invitation to treat (Pharmaceutical Society of Great Britain v Boots Cash Cash Chemists (Southern) Ltd) Auctions = call for bids = invitation to treat (Payne v Cave); May create collateral contract (pg.235) Online auctions = listing = offer (Smythe v Thomas) Advertisement calling for tenders = invitation to treat (Spencer v Harding) Vending machine = standing offer (Thornton v Shoe Lane Parking)

Acceptance Offeree indicates by words or by action they are willing to immediately enter into legally enforceable contract = accept offer Only the person whom the offer was offered to can accept the offer If offeree modifies terms of offer in any way = counter offer Counter offer = effectively a rejection of the original offer, which cannot be subsequently accepted (Hyde v Wrench) Request for more information in response to an offer is not = counter offer (Stevenson, Jaques & Co v McLean) Agreement not complete until offeree communicates acceptance to offeror (Powell v Lee) If offeror specifies the way an acceptance must be communicated, offer not accepted unless in that manner or an alternative no less advantageous (Tinn v Hoffmann & Co) Failure to respond to an offer that is similar to previously accepted offer, which was also accepted effectively by silence can mean an indication of acceptance, agreement can be enforced by either party (Boyd v Holmes) Unilateral contract = contract where acceptance of offer and its performance by the offeree achieved by the same act (Carhill v Carbolic Smoke Ball Co) If reasonable for offeree to reply to offer by post, postal rule established, offer accepted as soon as letter of acceptance is posted not when received by offeror (Henthorn v Fraser) Does not apply to offers and revocations (Byrne & Co v Leon Van Tienhoven) Does not apply to instantaneous communication (Brinkibon Ltd v Stahag Stahl Und Stahlwarehandelsgesellscharft mbH) **Conditional agreements (pg. 241)

Both parties intend that agreement to be legally enforceable Parties must intend for agreement to be a contract/legally enforceable Court looks at conduct of the parties from the perspective of an objective observer through 2 presumptions: Social or domestic agreements Or commercial agreements Social or domestic agreements Generally assumed there is no intention to make agreement legally enforceable (Balfor v Balfor) Can be rebutted based on particular circumstances (Wakeling v Ripley) E.g. seriousness of the agreement, etc. Commercial agreements Generally assumed there is intention for agreement to be legally enforceable (Edwards v Skyways Ltd) Can be rebutted by evidence that the parties to the commercial agreement behaved in such a way that it was clear they did not intend it to be legally enforceable (Rose & Frank Co v JR Crompton & Brothers Ltd) E.g. provided a clause at end of contract Comfort letter: letter from 3rd party assuring a lender about borrowers ability to pay load Can be legally enforceable promise(Gate Gourmet Australia Pty Ltd v Gate Gourmet Holding AG) Or non-binding statement of policy & intention (Kleinwort Benson Ltd v Malaysia Mining Corp Bhd) Traditional presumptions can be disregarded (Religion) (Ermogenous v Greek Orthodox Community of SA Inc) Preliminary agreements Pg. 244-245 Mere puff Not enforceable if can show not meant to be taken seriously Unless worded specifically (Carhill v Carbolic Smoke Ball Co) Both parties must pay a price or make a promise (consideration) Agreement not contract until both parties have paid/promised to pay a price In form of: Money Goods Service Undertaking onerous obligation Refraining from doing something Promise to do any of these things Consideration must move from the promisee, but not necessary to the promisor (Dunlop Pneumatic Tyre Co Ltd v Selfridge & Co Ltd) Consideration NEED NOT BE ADEQUATE No need for fair price (Thomas v Thomas) Consideration MUST BE SUFFICIENT, cannot be: Vague promise (White v Bluett), (Placer Development Ltd v Commonwealth) Past consideration (Roscorla v Thomas) Can be rebutted if payer expected legally enforceable promise to be made at later date (Ipex Software Services Pty Ltd v Hosking) Prior legal obligation (Stilk v Myrick) Unless does something beyond legal or contractual obligations (Hartley v Ponsonby) Waiving (pg. 250) Deeds: Formal contract, not necessary to show consideration for promise Practical benefits test (pg. 251) Promissory Estoppel According to doctrine of promissory estoppel, promise enforceable if: Promisor intended the promisee to rely upon a clear and unambiguous promise Promisee has relied upon promise by changing their circumstances, if promise not kept they suffer material disadvantage It would be unconscionable (unfair) for the promise to be broken Used as shield (prevent party from enforcing their contractual rights) (Central London Property Trust Ltd v High Trees House Ltd) Used a sword (prevent party from denying contract exists) (Walton Stores (Interstate) Ltd v Maher)