ls372 contracts ii case list · case topic/principle case book or other reference chaplin v hicks...

LS372 Contracts II – Case List

Case Topic/Principle Case Book or Other Reference

TERMINATION FOR BREACH

Tramways Advertising v Luna Park (NSW) Ltd (1938) 38 SR Breach of a condition 585

Luna Park (NSW) Ltd v Tramways Advertising (1938) 61 CLR 286 Breach of a condition 588

Associated Newspapers v Bancks (1957) 83 CLR 322 Breach of a condition 590

Hongkong Fir Shipping Co v Kawasaki Kisen Kaisha [1962] 2 QB 26 Breach of an intermediate term 593

Ankar v National Westminster Finance (Aust) Ltd (1987) 162 CLR 549 Breach of an intermediate term 597

Koompahtoo Local Aboriginal Land Council v Sanpine [2007] HCA 61 Breach of an intermediate term 601

TERMINATION FOR REPUDIATION

Carr v JA Berriman (1953) 89 CLR 327 Repudiation by words or conduct 609

Progressive Mailing House v Tabali (1985) 157 CLR 17 Repudiation inferred from a combination of events

612

Maple Flock Co Ltd v Universal Furniture Products (Wembley) Ltd [1934] 1 KW 148

Instalment contracts 619

DTR Nominees Pty Ltd v Mona Homes Pty Ltd (1978) 138 CLR 423 Erroneous interpretation of the contract 621

TERMINATION FOR DELAY

Louinder v Leis (1982) 149 CLR 509 Notice 627

Laurinda Pty Ltd v Capalaba Park Shopping Centre Pty Ltd (1989) 166 CLR 623 Notice 633

CONSEQUENCES OF TERMINATION OR AFFIRMATION

Bowes v Chaleyer (1923) 32 CLR 159 Election 644

Tropical TradersLtd v Goonan (1964) 111 CLR 41 Election 663

Sargent v ASL Developments (1974) 131 CLR 634 Election Lecture notes week 4

RESTRICTIONS ON THE RIGHT TO TERMINATE

Legione v Hateley (1982) 152 CLR 406 Relief against forfeiture 681

UNLIQUIDATED DAMAGES (MEASURE OF DAMAGES)

Commonwealth v Amann Aviation Pty Ltd (1991) 174 CLR 64 Expectation damages and reliance damages 710


Chaplin v Hicks [1911] 2 KB 786 Expectation damages and reliance damages Lecture notes week 5

Howe v Teefy (1927) 27 SR (NSW) 301 Expectation damages and reliance damages 744

LIMITATIONS ON THE AWARD OF DAMAGES

Reg Glass Pty Ltdj v Rivers Stocking Systems Ltd (1968) 120 CLR 156 Causation Lecture notes week 6

Hadley v Baxendale (1854) 9 Ex 341 Remoteness Lecture notes week 6

Victorian Laundry (Windsor) Ltd v Newman Industries Ltd [1949] 2 KB 528 Remoteness Lecture notes week 6

Stuart Pty Limited v Condor Commercial Insulation Pty Limited [2006] NSWCA 334

Remoteness 771

Baltic Shipping Co v Dillon (1993) 176 CLR 344 Specific types of claim – disappointment, distress, loss of reputation

790

LIQUIDATED DAMAGES

Dunlop Pneumatic Tyre Co v New Garage and Motor Co Ltd [1915] AC 79 Distinguishing liquidated damages from penalty clauses

Lecuture notes week 8

Esanda Finance Corp v Plessnig (1989) 166 CLR 131 Distinguishing liquidated damages from penalty clauses

807

ACTIONS FOR DEBT

Steele v Tartiani (1946) 72 CLR 386 Exceptions to exact performance – severable or divisible contracts

822

Hoenig v Isaacs [1952] 2 All ER 176 Exceptions to exact performance – substantial performance

827

Bolton v Mahdeva [1972] 1 WLR 1009 Exceptions to exact performance – substantial performance

830

Bot v Ristevski [1981] VR 120 Recovery of deposits 835

MISLEADING AND DECEPTIVE CONDUCT

O’Brien v Smolongov (1983) 53 ALR 107 Restrictions – in trade or commerce 943

Butcher v Lachlan Elder Realty Pty Ltd [2004] HCA 60 The relevant audience 950

Demagogue Pty v Ramensky (1992) 39 FCR 31 Engaging in conduct Lecture notes week 9; 971

Miller and Associates Insurance Broking Pty Ltd v BMW Australia Finance Engaging in conduct 964


Limited [2010] HCA 31

DURESS

Universe Tankships of Monrovia v International Transport Workers Federation [1983] 1 AC 366

Basic elements of duress 1044

Barton v Armstrong [1976] AC 104 Duress to the person 1046

Hawker Pacific Pty Ltd v Helicopter Charter Party Pty Ltd (1991) 22 NSWLR 298

Duress to goods 1049

Crescendo Management Pty Ltd v Westpac Banking Corporation (1988) 19 NSWLR 40

Economic duress 1055

UNDUE INFLUENCE

Johnson v Buttress (1936) 53 CLR 113 Relationships of influence 1058

Westmelton (VIC) Pty Ltd v Archer and Schulman [1982] VR 305 Rebutting the presumption 1062

UNCONSCIONABILITY AND IMPROPRIETY BY THIRD PARTIES

Bromley v Ryan (1956) 99 CLR 362 Unconscionability 1067

Commercial Bank of Australia v Amadio (1983) 151 CLR 447 Unconscionability 1071

Kakavas v Crown Melbourne Ltd [2013] HCA 25 Unconscionability Excerpt in folder

Garcia v National Australia Bank [1988] HCA 48 Unconscionability (between husband and wife)

1098

RESCISSION

Alati v Kruger (1955) 94 CLR 216 Restitutio in Integrum 1130

Brown v Smitt (1924) 34 CLR 160 Restitutio in Integrum 1134

Vadasz v Pioneer Concrete (SA) Pty Ltd (1995) 184 CLR 102 Partial rescission 1136

Coastal Elders Pty Ltd v Melevende [1965] VR 433 Election 1144

STATUTORY REMEDIES

Marks v GIO Australia Holdings Limited [1998] HCA 69 Misleading and Deceptive Conduct – ACL 1008

Henville v Walker (2001) 206 CLR 459 Misleading and Deceptive Conduct – ACL 1025

LS372 Contracts II – Relevant Legislation

Legislation Relevant Provision Elements Relevant Cases

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Misleading or Deceptive Conduct

Section 18 (1) A person must not, in trade or commerce,

engage in conduct that is misleading or deceptive or is likely to mislead or deceived

(2) Nothing in Part 3-1 (which is about unfair practices) limits by implication subsection (1)

(1) Person – includes individuals, corporate entities, and their employees, for e.g.

(2) Engaging in conduct – the concept of conduct includes spoken and written words

(3) In trade or commerce – the requirement that the conduct must occur in trade or commerce requires a trading or business element; and

(4) Misleading or deceptive or likely to mislead or deceive – the person claiming relief must have been misled or deceived, or the conduct must be shown to be of such a nature that it is likely to mislead or deceive.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Misleading or Deceptive Conduct

Section 2(1) Trade or commerce means: (a) Trade or commerce within Australia; or (b) Trade or commerce between Australia and

places outside Australia; and includes any business or professional activity (whether or not carried on for profit)

The most significant restriction on the prohibitions against misleading and deceptive conduct is that they only apply to conduct which is ‘in trade or commerce’ (see s 18)

Concrete Constructions v Nelson: The plaintiff was a worker on a construction site. He was required to stand on a grate over an air conditioning shaft, having been told by the foreman that it was safely fixed by bolts, which turned out to be untrue. He lost the case. The Court held that the ‘misleading statement’ was ‘an internal communication by one employee to another employee in the course of their ordinary activities in and about the construction of a building.’ O’Brien v Smolonogov: In this case the court held that the private sale of land between two individuals is not in the course of trade or commerce.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2)

Section 2(2)(a) In this Schedule: (a) A reference to engaging in conduct is a

reference to doing or refusing to do any act,

Conduct by silence has given rise to problems. A substantial body of case law in which silence will give rise to a contravention of s 52 of the TPA – this will also be applicable to s 18 above.

Demagogue Pty v Ramensky: Adopted the ‘reasonable expectation test’ for assessing the likelihood of silence to mislead or deceive – i.e is


Topic: Misleading or Deceptive Conduct

including: i. The making of, or the giving effect of a

provision of, a contract or arrangement; or

ii. The arriving at, or the giving effect to a provision of, an understanding; or

iii. The requiring of the giving of, or the giving of, a covenant; and

(b) A reference to conduct, when that expression is used as a noun otherwise than as mentioned in paragraph (a), is a reference to the doing or the refusing to do any act, including:

i. The making of, or the giving effect to a provision of, a contract or arrangement; or

ii. The arriving at, or the giving effect to a provision of, an understanding; or

iii. The requiring of the giving of, or the giving of, a covenant; and

(c) A reference to refusing to do an act includes a reference to:

i. Refraining (otherwise than inadvertently) from doing that act; or

ii. Making it known that the act will not be done; and

(d) A reference to a person offering to do an act, or do to an act on a particular condition, includes a reference to the person making it known that the person will accept applications, offers or proposals for the person to do that act or to do that act on that condition, as the case may be.

there a reasonable expectation that the relevant information be disclosed. Miller & Associates Insurance Broking v BMW Australia: Also applies the reasonable expectation test – ‘to invoke the existence of a reasonable expectation that if a fact exists it will be disclosed is to do no more than direct attention to the effect or likely effect or non-disclosure unmediated by antecedent erroneous assumptions or beliefs of high moral expectations held by one person or another which exceed the requirements of general law and the prohibition imposed by the statute.’

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2)

Section 4(1) If: (a) A person makes a representation with respect

to any future matter (including the doing of, or the refusing to do, any act); and

This is an evidentiary provision designed to reduce the burden on a person who alleges that a representation in relation to a future matter amounts to a contravention of the ACL.


Topic: Misleading or Deceptive Conduct

(b) The person does not have reasonable grounds for making the representation;

the representation is taken, for the purposes of this Schedule, to be misleading.

Contracts Review Act 1980 (NSW) Topic: Unconscionability

Section 7 – Principle Relief (1) Where the Court finds a contract or a

provision of a contract to have been unjust in the circumstances relating to the contract at the time it was made, the Court may, if it considers it just to do so, and for the purpose of avoiding as far as practicable an unjust consequence or result, do any one or more of the following:

(a) It may decide to refuse to enforce any or all of the provisions of the contract,

(b) It may make an order declaring the contract void, in whole or in part,

(c) It may make an order varying, in whole or in part, any provision of the contract,

(d) It may, in relation to a land instrument, make an order for or with respect to requiring the execution of an instrument that:

i. Varies, or has the effect of varying, the provisions of the land instrument, or

ii. Terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the land instrument.

(2) Where the Court makes an order under subsection (1) (b) or (c), the declaration or variation shall have effect as from the time when the contract was made or (as to the whole or any part or parts of the contract)

The section confers jurisdiction on a court to make certain orders where it finds a contract, or provision of it, to be unjust in the circumstances relating to the contract at the time it was made. “Unjust” is defined under s 4(1) as “harsh, unconscionable or oppressive conduct”.


from some other time or times as specified in the order.

(3) The operation of this section is subject to the provisions of section 19.

Contracts Review Act 1980 (NSW) Topic: Unconscionability

Section 9 – Matters to be considered by Court (1) In determining whether a contract or a

provision of a contract is unjust in the circumstances relating to the contract at the time it was made, the Court shall have regard to the public interest and to all the circumstances of the case, including such consequences or results as those arising in the event of:

(a) Compliance with any or all of the provisions of the contract; or

(b) Non-compliance with, or contravention of, any or all of the provisions of the contract.

(2) Without in any way affecting the generality of subsection (1), the matter to which the Court shall have regard shall, to the extent that they are relevant to the circumstances, including the following:

(a) Whether or not there was any material inequality in bargaining power between the parties to the contract,

(b) Whether or not prior to or at the time the contract was made its provisions were the subject of negotiation,

(c) Whether or not it was reasonably practicable for the party seeking relief under this Act to negotiate for the alteration of or to reject any of the provisions of the contract,

(d) Whether or not any provisions of the contract impose conditions which are

West v AGC Advances Ltd: The AGC loaned Mrs West $68,000. She was to use the loan to discharge the mortgage on her home, and to lend $40,000 to a company called Quiche which employed her husband. Her husband and 3 directors were to guarantee the loan. The company was to pay instalments to AGC on behalf of Mrs West in return for an interest free loan, all of which was known to AGC. AGC had possession of the records of the company’s accounts as a part of this arrangement. Inspection of the accounts, however, revealed that Quiche would soon wind up. Mrs West had no independent advice in this transaction, and had no solicitor; however he son, who was an accountant, had given her some advice about the transaction, and a barrister friend also told her to try to get more substantial guarantees froom the company. She was also aware that some of the wives of the company’s directions had refused to assent to their homes being used as security for the loan. The company eventually became insolvent and made no further payments on the loan. AGC sought to enforce the loan and the guarantee against Mrs West.


unreasonably difficult to comply with or not reasonably necessary for the protection of the legitimate interests of any party to the contract,

(e) Whether or not: i. Any party to the contract

(other than a corporation) was not reasonably able to protect his or her interests, or

ii. Any person who represented any of the parties to the contract was not reasonably able to protect the interests of any party who he or she represented

Because of his or her age of the state of his or her physical or mental capacity,

(f) The relative economic circumstances, educational background and literacy of:

i. The parties to the contract (other than a corporation), and

ii. Any person who represented any of the party to the contract.

(g) Where the contract is wholly or partly in writing, the physical form of contract, and the intelligibility of the language in which it is expressed,

(h) Whether or not and when independent legal or other expert advice was obtained by the party seeking relief under this Act,

(i) The extent (if any) to which the provisions of the contract and their

The Court held that Mrs West could not be granted relief. They found that the contract could not be construed as unjust in the circumstances; namely because West had an appreciation of the consequences, and had some level of legal and financial advice from her son and barrister friend. There was no unfairness in the documents – they were ordinary deeds of mortgage. In the circumstances, it could not be found that AGC had engaged in unfair conduct. Mrs West was liable to repay the money to AGC.


legal and practical effect were accurately explained by any person to the party seeking relief under this Act, and whether or not that party understood the provisions of their effect,

(j) Whether any undue influence, unfair pressure or unfair tactics were exerted on or used against the party seeking relief under this Act:

i. By any other party to the contract,

ii. By any person acting or appearing or purporting to act for or on behalf of any other party to the contract, or

iii. By any person to the knowledge (at the time the contract was made) of any other party to the contract or of any person acting or appearing or purporting to act for or on behalf of any other party to the contract,

(k) The conduct of the parties to the proceeding in relation to similar contracts or courses of dealing to which any of them has been a party, and

(l) The commercial or other setting, purpose and effect of the contract.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic:

Section 21 – Unconscionable conduct in connection with goods or services (1) A person must not, in trade or commerce, in

connection with: (a) The supply or possible supply of goods

or services to a person (other than a

There are 5 key elements that must be satisfied: (1) A person; (2) Trade or commerce (3) Supply or possible supply of goods or services

or acquisition or possible acquisition of goods or services;


Unconscionability publicly listed company); or (b) The acquisition or possible acquisition

of goods or services from a person (other than a listed public company);

Engage in conduct that is, in all the circumstances, unconscionable.

(2) This section does not apply to conduct that is engaged in only because the person engaging in the conduct:

(a) Institutes legal proceedings in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition; or

(b) Refers to arbitration a dispute or claim in relation to the supply or possible supply, or in relation to the acquisition or possible acquisition.

(3) For the purpose of determining whether a person has contravened subsection (1):

(a) The court must not have regard to any circumstances that were not reasonably foreseeable at the time of the alleged contravention; and

(b) The court may have regard to conduct engaged in, or circumstances existing, before the commencement of this section.

(4) It is the intention of the Parliament that: (a) This section is not limited by the

unwritten law relating to unconscionable conduct; and

(b) This section is capable of applying to a system of conduct or pattern of behaviour, whether or not a particular individual is identified as having been disadavantaged by the conduct or behaviourl and

(4) A person (other than a listed public company); and

(5) Unconscionable conduct. A person includes individuals, partnerships and corporations, included listed public companies.

Note the meaning of trade and commerce above in relation to misleading and deceptive conduct. The same applies here. As a result of the reference to trade and commerce, transactions between individuals in a private capacity are not subject to the requirements of the ACL. Note the Contracts Review Act 1980 (NSW) could in theory apply to contracts entered privately.

The terms of ‘supply’ and ‘acquisition’ cover the sale and purchase/the selling and buying of ‘goods and services’. The references to ‘possible supply’ and ‘possible acquisition’ extend the scope of the provision to a supplier’s behaviour during pre-contractual negotiations, for e.g.

A listed public company (i.e. Telstra, Rio Tinto, etc) cannot take benefit from s 21. If a listed public company has been the victim of unconscionable conduct either as a buyer or a seller it would have to bring an action under s 20.

Unconscionable conduct is not defined in s 21, however s 21(2) provides some insight. The ramification of s 21(2) is that unconscionable conduct will not be found simply because a person has taken legal action in the courts or before an arbitrator in relation to the supply and acquisition of goods.


(c) Considering whether conduct to which a contract relates is unconscionable , a court’s consideration of the contract may include consideration of:

i. The terms of the contract; and ii. The manner in which and the

extent to which the contract is carried out;

And is not limited to consideration of the circumstances relating to formation of the contract.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Unconscionability

Section 20 – Unconscionable conduct within the meaning of the unwritten law (1) A person must not, in trade or commerce,

engage in conduct that is unconscionable, within the meaning of the unwritten law from time to time.

(2) This section does not apply to conduct that is prohibited by section 21

The concept of the ‘unwritten law’ refers to the general or common law of Australia. The Act states specifically that s 20 does not apply to conduct that is prohibited by s 21 and will be applied most often in situations involving large business-to-business transactions and other conduct and agreements that are not captured by s 21.

GPG (Australia Trading) Pty Ltd v GIO Holdings Ltd (2001) 191 ALR 342: In this case it was doubted whether the words ‘unconscionable within the meaning of the unwritten law’ extend to prohibition beyond the general law concept. Section 20 was clearly drafted to capture the common law principle. However, as the textbook explains, it is arguable that the wording of the statute could cover other categories of ‘unconscionable conduct’ such as undue influence and duress.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Unconscionability

Section 22 – Matters the court may have regard to for the purposes of s 21 (1) Without limiting the matters to which the

court may have regard for the purpose of determining whether a person (the supplier) has contravened s 21 in connection with the supply or possible supply of goods or services to a person (the customer), the court may have regard to:

(a) The relative strengths of the bargaining positions of the supplier

The section sets out the matter to which a court may have regard for the purpose of determining whether the prohibition in s 21 has been contravened by the supplier. It lists the relevant facts when the supply or possible supply of goods and services is at issue. It is not an exhaustive list. Section 22(2) [not included in this list, but printed] lists the relevant factors when the acquisition or possible acquisition of goods and services is at issue. It is not an exhaustive list.


and the customer; and (b) Whether, as a result of conduct

engaged in by the supplier, the customer was required to comply with conditions that were not reasonably necessary for the protection of the legitimate interests of the supplier; and

(c) Whether the customer was able to understand any documents relating to the supply or possible supply of the goods or services; and

(d) Whether any undue influence or pressure was exerted on, or any unfair tactics were used against, the customer or a person acting on behalf of the supplier or a person acting on behalf of the supplier in relation to the supply or possible supply of goods or services; and

(e) The amount of which, and the circumstances under which, the customer could have acquired identical or equivalent goods or services from a person other than the supplier; and

(f) The extent of which the supplier’s conduct towards the customer was consistent with the supplier’s conduct in similar transactions between the supplier and other like customers; and

(g) The requirements of any applicable industry code; and

(h) The requirements of any other industry code, if the customer acted on the reasonable belief that the supplier would complu with that code;


and (i) The extent to which the supplier

unreasonably failed to disclose to the customer:

i. Any intended conduct of the supplier that might affect the interests of the customer; and

ii. Any risks to the customer arising from the supplier’s intended conduct (being risks that the supplier should have foreseen would not be apparent to the customer); and

(j) If there is a contract between the supplier and the customer for the supply of the goods or services:

i. The extent to which the supplier was willing to negotiate the terms and conditions of the contract with the customer; and

ii. The terms and conditions of the contract; and

iii. The conduct of the supplier and the customer in compying with the terms and conditions of the contract; and

iv. Any conduct that the supplier or the customer engaged in, in connection with their commercial relationship, after they entered into the contract; and

(k) Without limiting paragraph (j), whether the supplier has a contractual right to vary unilaterally a term or


condition of a contract between the supplier and the customer for the supply of the goods or services; and

(l) The extent to which the supplier and the customer acted in good faith.

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Statutory Remedies

Section 236 – Actions for damages (1) If:

(a) a person (the claimant) suffers loss or damage because of the conduct of another person; and

(b) the conduct contravened a provision of Chapter 2 or 3;

the claimant may recover the amount of the loss or damage by action against the other person, or against any person involved in the contravention. (2) An action under subsection (1) may be

commenced at any time within 6 years after the day on which the cause of action that related to the conduct accrued.

The section provides a right for a person to apply to a court for damages to compensate them for their loss or damage resulting from a contravention of the ACL. The right of a person to apply to the court for damages for breach of the ACL reflects a similar right which has existed under the TPA since commencement in 1974. The section provides the primary mode of remedy – damages. Sub-section 1 is the operative section. Section 236 requires causation. The provisions refer to the loss of damage ‘because of’ conduct in contravention of the Act. This has been equated to the common law concept of causation, including the common sense ‘but for’ test. The court is free to assess damages for loss in any way appropriate. However, the damages for loss under s 18 are usually equated with tort damages because the cause of action resembles tortious actions such as negligent misstatement, deceit and passing off. This means that the measure of damages is compensatory for actual loss, not for lost profit or expectation. The court has indicated that, even in the context of s 18, there is no binding rule about how to assess damages, so the court could in future order contractual-type damages.

Henville v Walker: The majority found that generally the court’s interpretation of s 82 (now 236 of ACL) is that they have accepted that loss or damage is causally connected to a contravention of the Act if a misrepresentation (or other vitiating factors provided for in the ACL?) was one of the causes of the loss or damage sustained by the claimant. The ‘but for’ test was broadly applied. Marks v GIO Australia Holding Ltd: The assessment of damages under s 236 is not analogous to either contract or tort damages.

Australian Consumer Law – Competition and Consumer Act

Section 237 – Compensation orders etc on application by an injured person or the regulator (1) A court may:

Whether or not a person has been misled has the right to rescind the contract, and whether or not any such right has been exercised, application may

Marks v GIO Australia Holding Ltd: If loss or damage is shown to have been suffered or likely to be suffered, orders


2010 (Schedule 2) Topic: Statutory Remedies

(a) On application of a person (the injured person) who has suffered, or is likely to suffer, loss or damage because of the conduct of another person that:

i. Was engaged in contravention of a provision of Chapter 2, 3 or 4; or

ii. Constitutes applying or relying on, purporting to apply or rely on, a term of a consumer contract that has been declared under s 250 to be an unfair term; or

(b) On the application of the regulator made on behalf of one or more such injured persons;

make such order or orders as the court thinks appropriate against the person who engaged in the conduct, or a person involved in that conduct.

be made under s 237 for the court to exercise a discretion to make various orders described in s 243. These include declaring the contract void wholly or in part, varying the contract, refusing to enforce any or all the provisions in the contract, ordering a refund of money or the return of property, ordering services to be supplied, etc. Section 237 requires causation. The section limits the jurisdiction to orders where a contravention did or is likely to cause loss or damage. Relief under s 237/243 can be sought even where no damages are sought under s 236.

of the kind prescribed by s 87 [now 237, ACL] may be made. McHUgh, Hayne and Callinan JJ: ‘Proof of loss or damage (actual or potential) is therefore a gateway to the s 87 remedies.’ ‘A party misled suffers no prejudice or disadvantage unless it is shown that that party could have acted in some other way (or refrained from acting in some way) which would have been of greater benefit or less detriment to it than of the course in fact adopted.’

Australian Consumer Law – Competition and Consumer Act 2010 (Schedule 2) Topic: Statutory Remedies

243 Kinds of orders that may be made Without limiting section 237(1), 238(1) or 239(1), the orders that a court may make under any of those sections against a person (the respondent) include all or any of the following: (a) an order declaring the whole or any part of a

contract made between the respondent and a person (the injured person) who suffered, or is likely to suffer, the loss or damage referred to in that section, or of a collateral arrangement relating to such a contract:

i. to be void; and ii. if the court thinks fit—to have been

void ab initio or void at all times on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);


(b) an order: i. varying such a contract or

arrangement in such manner as is specified in the order; and

ii. if the court thinks fit—declaring the contract or arrangement to have had effect as so varied on and after such date as is specified in the order (which may be a date that is before the date on which the order is made);

(c) an order refusing to enforce any or all of the provisions of such a contract or arrangement;

(d) an order directing the respondent to refund money or return property to the injured person;

(e) except if the order is to be made under section 239(1)—an order directing the respondent to pay the injured person the amount of the loss or damage;

(f) an order directing the respondent, at his or her own expense, to repair, or provide parts for, goods that had been supplied by the respondent to the injured person;

(g) an order directing the respondent, at his or her own expense, to supply specified services to the injured person;

(h) an order, in relation to an instrument creating or transferring an interest in land, directing the respondent to execute an instrument that:

i. varies, or has the effect of varying, the first mentioned instrument; or

ii. terminates or otherwise affects, or has the effect of terminating or otherwise affecting, the operation or effect of the first mentioned instrument.

ls372 contracts ii case list · case topic/principle case book or other reference chaplin v hicks...

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